Caudillo, Daniel, Esquire

The Law Office of Daniel Caudillo

5959 Gateway West, Suite 460
El Paso, TX 79925
Name: ALEJO RETA, SALVADOR
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leeburg Pke, S11ite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - ELP
1545 Hawkins Blvd.
El Paso, TX 79925
A 060-663-553
Date of this notice: 1 /15/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Malphrus, Garr D.
Sincerely,
DO c tA
Donna Car
Chief Clerk
lucasd
Use rte am: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Salvador Alejo Reta, A060 663 553 (BIA Jan. 15, 2014)
ALEJO RETA, SALVADOR
A060-663-553
EL PASO SPC
8915 MONTANA AVE
EL PASO, TX 79925
Name: ALEJO RETA, SALVADOR
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leeburg Pike, Suite 2000
Falls Clmrc1, Vrginia 20530
OHS/ICE Ofice of Chief Counsel ELP
1545 Hawkins Blvd.
El Paso, TX 79925
A 060-663-553
Date of this notice: 1/15/2014
Enclosed is a copy of the Board's decision in the above-refrenced case. This copy is being
provided to you as a courtesy. Your attorey or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed fom the United States or afrms an Immigration Judge's decision ordering that you
be removed, any petition fr review of the attached decision must be fed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Malphrus, Garr D.
Sincerely,
DC c t
Donna Carr
Chief Clerk
lucasd
Useream: Docket
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Cite as: Salvador Alejo Reta, A060 663 553 (BIA Jan. 15, 2014)
U.S. Department of Justice
.Executive Ofce fr Immigration Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia 20530
File: A060 663 553 - El Paso, TX
In re: SALVADOR ALEJO RETA
I RMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Daiel Caudillo, Esquire
ON BEHALF OF DHS:
CHARGE:
Elias Gastelo
Chief Counsel
Notice: Sec. 212(a)(2)(C), l&N Act [8 U.S.C. 1182(a)(2)(C)] -
Controlled substance trafcker
APPLICATION: Termination
JAN 15
2014
The respondent, a native and citizen of Mexico and a lawful peranent resident of the United
States, appeals the decision of the Immigration Judge, dated August 13, 2013, which denied his
motion to suppress evidence and his motion to terminate, and fund him removable as charged.
The appeal will be dismissed.
We review fr clear error the fndings of fct, including the determination of credibility,
made by the Immigation Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de nova all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003. l (d)(3)(ii).
On April 23, 2012, the respondent was encountered at the border by Customs and Border
Patrol ("CBP") ofcers, attempting to enter the United States fom Mexico by vehicle (l. J. at 2;
Exh. 2). Upon primary and routine inspection, the respondent's behavior ad his responses to
questioning led CBP Ofcer Quintanar to decide that the respondent should be refrred to
secondary inspection (l.J. at 2; Tr. at 89-103; Exh. 3). The respondent gave a similar verbal
statement to CBP Ofcer Avitia during the secondary inspection (l. J. at 2; Exh. 3). As a result,
Offcer Avitia requested canine inspection of the respondent's car, and almost 65 pounds of
marijuana was ultimately fund in the car (I.J. at 2-3; Tr. at 120; Exh. 3). Meanwhile, te
respondent was detained and interrogated by Special Agents fom the Homeland Security
Investigations bureau ("HSI"). A two-page statement in Spanish, purportedly written by the
respondent, was produced fom that interrogation (l.J. at 3; Exh. 3).
The Department of Homeland Securit ("OHS") fled a criminal complaint against the
respondent in United States District Court, charging him with possession of a contolled
substance with intent to distribute, and importation of a controlled substance (l. J. at 3-4; Exh. 3).
The cou, however, granted the respondent's motion to suppress all statements, written ad
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Cite as: Salvador Alejo Reta, A060 663 553 (BIA Jan. 15, 2014)
A060 663 553
verbal, that he made afer being refred to secondary inspection (l.J. at 4; Exh. 4). The court
concluded tat the respondent did not suffciently comprehend te English language to have
made feely a waiver of his rights in English, and there was no proof that he received the proper
waings in Spanish.
The criminal complaint wa dismissed, and the DHS issued a Notice to Appea, chaging the
respondent with removal as an arriving alien whom the DHS has "reason to believe" is or was an
illicit trafcker in a controlled substance (1.J. at 1; Exh. 1). See section 212(a)(2)(C) of the Act,
8 U.S.C. l 182(a)(2)(C). Both CBP Ofcers Avitia and Quintanar testifed at the hearing. Te
respondent invoked his Fifh Amendment right not to testif, arguing that since the criminal
complaint was dismissed without prejudice, any testimony could still be used against him (Tr.
at 178-79). He also moved to suppress the statement he made to the HSI ofcers, based on the
district cour's ruling. Finally, he agued that he had consistently denied his knowledge of the
marijuana in the car; therefre, the DHS did not meet its burden to prove that he had the requisite
knowledge to conclude that he wa a drg trafcker (Tr. at 177-78).
The Immigration Judge ruled that, even assuming the respondent had made a prima fcie
showing that te evidence had been illegally obtained, the filure to provide the proper warings
in Spanish was not the tpe of egregious conduct to warrant suppression of the evidence in the
removal context (l.J. at 4). Therefre, he denied the motion to suppress. He furher concluded
that the respondent's inconsistent statements to te CBP and HSI ofcers, without testimony to
explain the inconsistencies, was sufcient evidence to infr that he knew that he was transporing
contraband (l.J. at 7-8). Thus, the Immigation Judge sustained te charge of removal. The
respondent did not fle any applications fr relief.
On appeal, the respondent argues that the Immigration Judge erred in denying his motion to
suppress evidence obtained by the HSI agents, noting that the witten statement was not signed
or authenticated by him (Respondent's Br. at 12-13). He also contends that the Immigration
Judge improperly drew negative infrences fom his refsal to testif (Respondent's Br.
at 10-13). Finally, the respondent argues that the Immigration Judge applied the wrong fctors,
and did not rely on reasonable, substantial and probative evidence, to determine that he was a
knowing traffcker in a controlled substance (Respondent's Br. at 19-22).
We address these contentions in tum. We afrm the Immigation Judge's denial of the
motion to suppress. The exclusionary rule does not apply in immigration proceedings.
Generally, documentary evidence in removal proceedings need not comport with the strict
judicial rules of evidence; rather, in order to be admissible, such evidence need only be probative
and its use fndamentally far. Mater of Velasquez, 19 I&N Dec. 377, 380 (BIA 1986). Only a
egregious violation of the alien's rights under the Fourth Amendment to the Constitution of the
United States, or oter liberties that might transgress the notions of fndamental firess or
undermine the probative vaue of the evidence, will trigger suppression in a civil immigation
proceeding. See generally INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984). A alien
seeking the exclusion of evidence based on an egregious violation of the Fourth Amendment
bears the burden of establishing a prima fcie case that evidence should be suppressed. See
Mater ofTang, 13 I&N Dec. 691 (BIA 1971).
2
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Cite as: Salvador Alejo Reta, A060 663 553 (BIA Jan. 15, 2014)
A060 663 553
The respondent's argument tat the statements to the HSI offcers should be suppressed fr
the same reasons given by the court - i.e., that he was not advised of his rights in Spaish -- is
without merit in the context of removal proceedings (l.J. at 4). See INS v. Lopez-Mendoza, supra,
at 1039 (the absence of Miranda waings does not render an otherwise voluntar statement by
the respondent inadmissible in a deporation case); see also Bustos-Torres v. INS, 898 F.2d 1053,
1056-57 (5th Cir. 1990) (ruling that the DHS Form I-213 was properly admitted because it was
"clearly relevant ad material ad ... not repetitious," despite an immigration offcer's filure to
give a Miranda-like warning). As the respondent ofered no evidence that the statements were
obtained by coercion, duress, or improper action, he did not demonstrate that its admission
would be an egregious Fourth Amendment violation.
1
The respondent contends that the written statement is uneliable because it is unauthenticated
and unsubstantiated (Respondent's Br. at 12, 21 ). While the respondent refsed to admit at the
heaing that he wote the statement (Tr. at 159), the frm and context of the statement supports a
fnding that it was made during the course of the investigation. The statement is in Spanish on
an HSI fr, dated on the same day as the respondent's referral to HSI interogation (Exh. 3).
Moreover, in distict court the respondent did not contest the authenticity or veracity of the
statement, only that he did not volutarily waive his rights befre he wrote it (Exh. 4). Thus, we
afrm the Immigration Judge's consideration of the statement in sustaining the charge of
removal. See Matter of Velasquez, supra.
An alien may refse to answer questions at a removal hearing by making a claim of self
incrimination under the Fif Amendment, if the answer may reasonably have a tendency to
incriminate him or fish proof of a link in the chain of evidence necessar to convict him of a
crime. Matter of R-, 4 l&N Dec. 720 (BIA 1952). However, a adverse inference may be drawn
fom the alien's silence in removal proceedings. Matter of Guevara, 20 I&N Dec. 238
(BIA 1991). See also, e.g., Gutierrez v. Holder, 662 F.3d 1083, 1091 (9 Cir. 2011). We
disagee with the respondent that te Immigration Judge improperly drew negative inferences
fom the respondent's refsal to testif prior to the establishment of a prima fcie case of
removal (Respondent's Br. at 12). See id. (the alien's silence alone, in the absence of any other
evidence of record, is insuffcient to constitute prima fcie evidence of his removability). The
respondent acknowledges that, prior to consideration of his witten statement, the Immigration
Judge considered the testimony of the two CBP offcers and the amount of maijuaa fund in
the vehicle driven by the respondent, which constituted prima fcie evidence tat he was a drug
trafcker (Respondent's Br. at 12). The Imigration Judge used the written statement to fnd
that the DHS proved, clearly and convincingly, that the respondent was a knowing participant in
drug traffcking, as we discuss below (l. J. at 8).
1 We need not address the Immigration Judge's alterative determination that the respondent did
not support his motion to suppress with testimony, as required by Matter of Barcenas, 19 I&N
Dec. 609 (BIA 1988) (I.J. at 4). We also disagree with the respondent that, in the fce of the
respondent's prima fcie showing, the Immigration Judge should have called upon the DHS to
justif the maner in which it obtained the evidence (Respondent's Br. at 7-8). The respondent's
only allegation was the lack of requisite waings; thus, that is the only issue that required a
response. As we conclude above, it is well-setled that the lack of waings does not inherently
constitute a egregious Fourh Amendment violation.
3
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Cite as: Salvador Alejo Reta, A060 663 553 (BIA Jan. 15, 2014)
A060 663 553
We afrm te Immigration Judge's conclusion that the respondent is removable as charged.
A conviction is not necessary fr an alien to be inadmissible if the evidence shows that the
imigation ofcer knows, or ha "reason to believe" the alien is an illicit trafcker. See Cuevas
v. Holder, _F.3d _, 2013 WL 6503359 (5th Cir. Dec. 10, 2013); see also Garces v. US
Att ' Gen., 611 F.3d 1337, 1345 (11th Cir. 2010); Matter of Favela, 16 I&N Dec. 753
(BIA 1979); Matter of Rico, 16 I&N Dec. 181, 185 (BIA 1977). There is no controlling case
law defning a "reason to believe;" however, contrary to the respondent's contention, we have
interpreted the standard as similar to a "probable cause" requirement (l.J. at 7; Respondent's Br.
at 15-16). See Matter of U-H-, 23 l&N Dec. 355 (BIA 2002).
Even under a more stingent "reasonable, substantial and probative evidence" stdad urged
by the respondent, however, based on the respondent's reliace on see Alarcon-Serrano v. INS,
220 F.3d 1116, 1119 (9t Cir. 2000), the Immigration Judge corectly determined that the OHS
met its burden of proof. 2 The car driven by the respondent was hiding almost 65 pounds of
marijuana. This large amount of a controlled substace was not fr personal use and was stong
evidence of taffcking.
The respondent argues that the DHS did not prove that he wa a "knowing and conscious
paricipant" in the trafcking scheme, as he denied knowing the drugs were in the car and denied
that he owned the car (Respondent's Br. at 21; l.J. at 8). See Matter of Rico, supra, at 186. The
respondent's initial sttements to te CBP ofcers were suspicious, as was his demeaor.
Further, we agree with the Immigration Judge the vast inconsistency between his statements to
the CBP ofcers and his written statement, given during the HSI interrogation, is substantial
evidence of his "guilty knowledge" (l.J. at 7-8). See Alarcon-Serrano v. INS, supra, at 1119-20
(upholding "reason to believe" fnding where alien was arested with large quantity of marijuana
in his car, despite alien's claim that he was unaware of the presence of the drugs); see also
United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995) (describing the circumstantial
evidence used in determining "guilty knowledge" in the context of hidden possession, including
the defndant's inconsistent statements). There is signifcant circumstatial evidence that
suppors a fnding of the respondent's knowing participation even without making a negative
infrence fom the respondent's refsal to testify. Therefre, we affrm the Imigration Judge's
conclusion that the OHS established there was "reason to believe" that te respondent was a
knowing participat in drug trafcking, and his deterination that the respondent was removable
as charged. As the respondent did not fle any applications fr relief, the fllowing order will be
issued.
ORDER: The respondent's appeal is dismissed.
2 The United States Court of Appeals fr the Fifh Circuit has not taken a position on which
standard to apply in this context. See Cuevas v. Holder, supra, at *3.We address the more
stringent standard in the interest of flly addressing the arguments in the appeal.
4
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Cite as: Salvador Alejo Reta, A060 663 553 (BIA Jan. 15, 2014)
..
A-060 663 553
In the Matter of
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Immigration Cour
El Paso, Texas
In Removal Proceedings
Salvador Alejo Reta,
Respondent
CHARGE(S): 212(a)(2}(C)(reason to believe drug traficker)
APPLICATION(S): None
MOTION(S): Motion to Terminate Removal Proceedings (and Admit Returning
Lawful Permanent Resident Alien)
Motion to Suppress Evidence/Statements (Oral)
FOR RESPONDENT: Daniel Caudillo, Esq.
FOR DHS:
1. Backgrund
Alla Tahir, Esq.
On February 7, 2013, the Deparment of Homeland Security (OHS) issued a
Notice to Appear charging respondent with being a resident alien (LPR) but
neverheless an ariving alien whom the OHS has "reason to believe" is a traficker in a
controlled substance. Respondent has, thrugh counsel, admitted to alienage and
permanent resident alien status, but denied knowing of, or being in knowing possession
of a quantity of marijuana at the time he crossed the border from Mexico into the United
States.
A hearing regarding these contested removal charges was held on August 7,
2013, wherein documents and oral testimony were considered. Respondent did not
testif. Afer consideration of the documentary evidence and oral testimony from the
government's witnesses, the court will deny respondent's motions to terminate removal
proceedings and suppress evidence
,
sustain the charge of removal as ariculated
above, and order the respondent's removal from the United States to Mexico.
1
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. ,
2. Testimony
The OHS presented two witnesses in suppor of their case, both CBPO's
(Customs and Border Protection Oficers, previously known as Inspectors) who worked
at the port of entry in El Paso, Texas at the time of respondent's arrival at the inspection
station on April 23, 2012.
The first witness was Oficer Quintanar, who testified that he is a fur year
veteran of the Customs and Border Protection agency. Oficer Quintanar was the
oficer who encountered the respondent at "primar" on April 23, 2012.1 During the
routine inspection respondent told Oficer Quintanar that he was previously in El Paso
when his girlfriend called and told him that he was the father of a new baby.
Respondent then travelled to Mexico to visit the mother and child. Respondent was
now at the por of entr driving his father-in-law's car on his way back to El Paso to pick
up his mother and take her to Mexico to see the new child.
Officer Quintanar began to suspect something was wrng when he checked the
records regarding the vehicle respondent was driving. It showed that this paricular
vehicle had crossed the border only six times in the last six months. Oficer Quintanar
believed that a person with a girlfriend expecting a child would get more visits than only
one visit per month (on average). Ofcer Quintanar also obsered what he believed to
be nerous behavior exhibited by the respondent, and that respondent did not appear
to be as excited as one would expect from a new parent. Officer Quintanar also
obsered respondent to appear even more nerous when referred to secondar.
The next witness was Officer Avitia, who encountered respondent when he was
referred to secondar. At secondary respondent repeated his statement to Oficer
Quintanar that he was returning to El Paso to pick up his mother and then return to
Mexico to visit the new baby. Respondent also repeated his claim that the vehicle he
was driving belonged to his father-in-law.
Offcer Avitia began his physical inspection of the vehicle while asking
respondent questions. Oficer Avitia obsered that respondent appeared to be very
quiet, more quiet than one would expect a new father to be. During the inspection
Offcer Avitia called in the assistance of one of the canine ofcers and a drug detection
dog was used to check out the vehicle. The dog alered on one of the rear tires, and
furher inspection of this tire revealed a green leafy substance which tested positive fr
the presence of mariuana.
Respondent was then handcuffed and escored into the "head-house"2 and
secured until the arrival of Special Agents from the Homeland Security Investigations
1 "Primary'' is the first station a person encounters when crossing the border driving a motor vehicle.
2 This is an old-fashioned term for the building the former U.S. Customs Service called their ofice
or administrative headquarters at the port of entry.
2
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bureau (par of the Immigration and Customs Enforcement agency). In the mean time,
Oficers Avitia and Quintanar, as well as some other CBP Officers, began to dismantle
the respondent's vehicle looking fr contraband. The Oficers ultimately fund some 60
bundles of mariuana secreted mostly in the tires of the vehicle weighing a little less
than 65 pounds.
The next witness that was called was respondent. Respondent, though counsel,
refused to answer most questions on 5
t
Amendment self-incrimination grounds.
3. Documents
In lieu of respondent's testimony the OHS submitted written statements made by
the HSI agent, and translated versions of written statements respondent made to the
HSI agent afer his arrest. 3 In the written statement (exhibit 3, tab A) respondent made
two statements. In the statements respondent articulates:

that he does not know the owner of the vehicle he was driving

that he was contacted by Facebook and ofered a job of driving the vehicle to El
Paso fr $600. 00 and trying to sell the vehicle

that he did not know of the contents (marijuana) of the vehicle

that he had been promised that there was nothing wrong with the vehicle by the
people who hired him

that he was "used" by the people that hired him, and that he is an honest man
and seeks to show his innocence
4. Motion to Suppress Respondent's Statements
Respondent has moved this cour to suppress any statements respondent made
to HSI Special Agents because such statements were suppressed by the District Cour
in the prior criminal proceedings against respondent. The motion will be denied.
Motions to suppress evidence in removal proceedings is a disfavored practice,
and will only be granted in the event of "egregious" violations of the respondent's
constitutional rights. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984); U.S. v. Lopez
Oriz, 313 F.3d 225 (5
f
Cir. 2002). The Board of Immigration Appeals has promulgated
a type of "rule" when a respondent seeks to suppress evidence in a removal hearng.
Mater of Barcenas, 19 I. & N. Dec. 609 (BIA 1988). At a minimum, the respondent who
raises the claim regarding the legality of evidence must come forh with proof
establishing a prima facie case before the OHS will be called upon to assume the
burden of justifying the manner in which it obtained the evidence. Id. Where an alien
3 Respondent objected to the court's admission of these statements on the grounds that these very
same statements were suppressed in the United States District Court by the presiding judge. This issue is
discussed in more detail below.
3
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seeks to challenge the admissibility of a document, the mere ofering of an afidavit is
not suficient to sustain his burden, the alien must also suppor his claim by testimony.
Id.
In this case, respondent, through counsel alone, assered that his prior written
statements made to an HSI Special Agent must be suppressed in the removal hearing
because these same statements were suppressed by the District Cour in criminal
proceedings. The cour does not agree.
In the record is a copy of an order from the District Judge granting in part the
defendant's motion to suppress "all evidence obtained as a result of a confession
allegedly obtained in violation of Alejo's Fifh Amendment rights." In the body of this
decision and order, Judge Frank Montalvo determined that the respondent, who speaks
very little English, did not "knowingly and intelligently" waive his right to remain silent.
Thus, on a technical ground, Judge Montalvo fund that the statements made by
respondent, after he was taken from secondar into the head-house, and then
questioned by HSI Special Agents (in handcuffs), must be suppressed because the HSI
Agent did not advise the respondent of his Miranda rights in a language the respondent
understood well.
To the extent that respondent asserts that this order constitutes his "prima facie"
showing, the court will allow it (although it is not an affidavit from the respondent
himself. However, respondent still did not suppor his motion with testimony as
required by Ma er of Barcenas, supr. Additionally, the cour finds that this very minor
technical infraction by the HSI Special Agent does not constitute the type of egregious
conduct ariculated by the Supreme Cour (and Fifh Circuit) requiring the suppression
of what appears to be purely voluntary statements made by the respondent after being
caught with a substantial amount of marijuana in the vehicle he was driving. The record
suggests, instead, that respondent was attempting to converse with the agent in the
English language. There was a Spanish speaking agent who could have been called
upon to give these rights, but the cour finds that the HSI Agents prceeded in English
thinking that this is what the respondent wanted to do. No threats, no beatings, no
torure, etc. have been ariculated. Nothing egregious at all.
As such, the cour will deny respondent's motion to suppress his statements,
both because he fails to meet the procedural requirements of Barcenas, but also
because on the facts of this case, there was no egregious violation of the respondent's
Constitutional rights rising to the level of a Fifh Amendment due process violation.
4
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5. Statement of the Law
The term "reason to believe" is not defined by the Immigration and Nationality
Act or Board of Immigration Appeals precedent. "Reason to believe" is a proof
threshold on the hierarchy of proof that is greater than a reasonable suspicion but
below that of preponderance of the evidence.
The U.S. Supreme Court has interpreted the term "reason to believe" in INA
287 to be synonymous with "probable cause." U.S. v. Cortez, 449 U.S. 411 (1981 ).
The Cours have likewise held that the term "reason to believe" is synonymous with
"probable cause" in other contexts. Seel e.g., U.S. v. Gorman, 314F.3d 1105 (9th Cir.
2002) (holding that the "reason to believe11 standard for entr into a dwelling to execute
a search warrant required probable cause). The Board has also noted that the phrase
"reasonable ground to believe" is properly equated with "probable cause," which is a
less demanding standard than "preponderance of the evidence." Matter of A-H-, 23
l&N Dec. 774, 789 (A.G. 2005).
The Cours have held that "prbable cause11 is a practical, non-technical concept
that is defined by everyday experience. As such, it cannot be reduced to legal rules,
and it is not capable of being quantified or reduced to a percentages. Maryland v.
Pringle, 540 U.S. 366 (2003). Instead, probable cause determinations involve
common-sense conclusions about human behavior. Prbable cause exists if the totality
of the circumstances raises a paricularized suspicion that an individual is engaged in
wrongdoing. U.S. v. Corez, 499 U.S. at418.
Prbable cause is the reasonable belief that a crime was commited and that the
suspect perpetrated the crime. Wong Sun v. U.S., 371 U.S. 471 (1963). The suspicion
that the individual is engaged in wrongdoing must be based on "specific ariculable
facts, together with rational inferences from those facts." U.S. v. Brignoni-Ponce, 422
U.S. 873, 884 (1975). For example, in U.S. v. Brignoni-Ponce, the Cour stated that
prbable cause for stopping a vehicle fr alien smuggling could include such factors as:
1. the characteristics of the area in the vehicle is encountered,
2. the vehicle's prximity to the border,
3. the usual paterns of trafc on particular road the vehicle is encountered,
4. known alien trafic patters,
5. information about recent illegal borer crossings in the area,
6. erratic driving or obvious attempts to evade oficers,
7. aspects of the vehicle; such as station wagons, with large comparments
for fold-down seats or spare tires, used fr transporing concealed aliens;
the vehicle may appear to be heavily loaded; it may have an extraordinar
number of passengers: or the oficers may obsere persons trying to hide,
and
8. the characteristic appearance of persons who live in Mexico, such as the
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mode of dress and haircut.
In Illinois v. Gates, 462 U.S. 213 (1983) the Supreme Cour overurned the prior
"two-pronged" for probable cause and replaced it with a "totality of circumstances" test.
Gates made clear that 11probable cause,
,
may be sustained with evidence that does not
establish a 50% prbability of guilt.
No cour has held that the term "reason to believe" demands any level of
definitive proof. The BIA directly addressed a challenge to a "reason to believe" charge
in Matter of Rico, 16 l&N Dec. 181 (BIA 1977). In Rico, 162 pounds of marijuana were
found in concealed comparments of the vehicle during an inspection at a Port of Entry.
The alien driving the vehicle initially told investigators that the vehicle had been loaned
to him and that he did not know the vehicle contained marijuana. According to
investigators, he later stated that he had been paid to drive the vehicle acrss the
border and suspected that something was in the vehicle but that he did not know what.
A criminal complaint was initially filed against the alien but was later dismissed.
At his exclusion hearing, the alien testified that the vehicle was being loaned to him fr
one day while his car was being repaired, and that he never stated to investigators that
he had been paid to drive the vehicle across the border. The INS presented an
inspector who testified that he had obsered the alien driving the vehicle in question
through the POE on several other occasions. The Board held that presence of a large
quantity of drugs combined with implausible, contradictory testimony was suficient to
suppor a .. rason to believe" drg smuggling charge under INA 212(a)(23) (1975), re
codified as lNA 212(a)(2)(C) (1990,et. seq.).
In 11reason to believe" inadmissibility cases, the burden is on the alien to establish
that 11reason to believe" does not exist, In the case of an applicant fr admission,
however, the burden is on the alien to prove admissibility. INA 240(c)(2)(A).
Applicants for admission, by regulation, include aliens present in the United States who
have not been admitted or paroled or who seek entry at a place other than a designated
Por of Entry. 8 CFR 1235.1(d)(2). Moreover, 8 CFR 1240.8(c) exlicitly places on
aliens present without admission the burden of proving admissibility "clearly and beyond
a doubt." Arriving aliens must also establish admissibility "clearly and beyond a doubt."
8 CFR 1240.B(b ).
Conversely, in the case of lawul permanent residents, the burden is on the OHS
to establish removability by clear and convincing evidence pursuant to I NA
240(c)(3)(A). Although I NA 240(c)(2) makes no distinction between permanent
residents and other aliens, INA 101 (a)(13)(C) provides that "[a]n alien lawfully
admitted for permanent residence in the United States shall not be regarded as seeking
admission into the United States for purposes of the immigration laws [except under
cerain enumerated circumstances]. " One of the enumerated circumstances is
inadmissibility under INA 212(a)(2)(C). It is, however, the goverment's burden to
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establish that a permanent resident is "regarded as seeking admission." See Matter of
Rosas, 22 l&N Dec. 616 (BIA 1999); Matter of Rivens, 25 I. & N. Dec. 623 (BIA 2011 ).
Thus, in 212(a)(2)(C) cases involving lawful permanent residents, the DHS has
the burden of establishing that the alien is "seeking admission" (because there is clear
and convincing evidence to believe he is or has been a drug trafcker). If this burden is
met then the OHS has necessarily established inadmissibility under 212(a)(2)(C). But,
if the OHS does not establish that the lawful permanent resident is 11seeking admission,"
then inadmissibility charges are improper and removar proceedings must be terminated.
Many factors are potentially relevant to determine whether there is suficient
probable cause or "reason to believe" to suppor an INA 212(a)(2)(C) charge, and
some have been discussed in cour decisions. Nervous behavior is circumstantial
evidence of guilty knowledge. United States v. Casi a, 20 F.3d 600, 607 (5th Cir.
1994); United States v. Orega Reyna, 148 F. 3d 540, 544, (5th Cir. 1998.).
Consciousness of guilt may also be established by inconsistent statements and
implausible stories. United States v. Pennington, 20 F.3d 593, 598 (5th Cir. 1994).
With regard to inconsistent statements made to the CBP Officers, "perhaps the
strngest evidence of a criminal defendant's guilty knowledge is inconsistent
statements to federal oficials." United States v. Diaz-Carreon, 915 F.2d 951, 954-55
(5th Cir. 1990). While an alien may profer an explanation about being solicited to work
as a document courier or shuttle driver, "a less-than-credible explanation" for a
defendant's actions is par of the overall circumstantial evidence from which guilty
knowledge may be inferred. Id. at 955.
Other relevant factors include (1) driving in tandem, (2) driving on a route
commonly used by smugglers, (3) false claim to citizenship, and (4) nerousness. See
U.S. v. Garcia-Barron, 116 F.3d 1305 (9th Cir. 1997). With respect to a drug-detecting
canine alerting (indicating a recent presence of narcotics), "[a] canine snif alone can
supply the probable cause" in the context of search warrant applications. United States
v. Lingenfelter, 997 F.2d 632, 639 (9th Cir.1993). Also, although the informant's tip,
alone, is not necessarly reliable and may not constitute probable cause, it is a relevant
factor. See U.S. v. Villalobos, 161 F.3d 285 (5th Cir. 1998).
Even assuming that the alien did not definitively know that the vehicle contained
drugs and that he was "duped" by being told that he was merely transporing
documents, deliberate ignorance may substitute for guilty knowledge. While knowledge
on the par of the defendant cannot be established merely by demonstrating that the
defendant was negligent, careless, or foolish, knowledge can be inferred if the
defendant deliberately blinded himself to the existence of a fact. (5th Circuit Patter
Jur Instruction 1.37); see also United States v. Moreno, 185 F. 3d 465, 476 (5th Cir.
1999), cer. denied, 120 S.Ct. 835 (2000). Thus a purpored 11document courier" who
lied to the CBPO because his boss told him to lie cannot successfully argue lack of
knowledge, because a reasonable person would have known something was amiss if
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.
,
their employer instructed them to lie to federal oficiafs.
6. Analysis
We have a similar situation here in the respondent's case. At primar, and again
at secondar, respondent lied to CBP Oficers about the purpose of his trip, making up
a rather elaborate stor about travelling to Mexico to see his new born child, and then
returing to the United States to pick up the child's grandmother so she could visit the
child in Mexico. This was all a lie.
Afer the substantial quantity of marijuana is found in the vehicle respondent is
driving, respondent then tells the HSI Special Agents that he was contacted on Face
Book and ofered $600 to drive the vehicle from Juarez to El Paso Gust a matter of a
couple of miles), with the purpose of possibly then selfing the vehicle. Respondent then
tells the HSI agents that the people that hired him "promised" that there was nothing
"wrong" with the car, and that he was an honest man who was duped.
The diference between these two statements of purpose is astounding ... not
even close. As noted by the Fifth Circuit, such inconsistent statements made to federal
oficials is perhaps the strongest evidence of guilty knowledge. Citing, United States v.
Diaz-Carreon, 915 F.2d 951, 954-55 (5th Cir. 1990). Coupled with the nerousness of
the respondent at primar and secondary, the lane-check infrmation regarding the
vehicle respondent was driving, the aspect of the vehicle itself (large-capable of
transporing large amounts of contraband), and finalJy, the significantly large amount of
marijuana fund in the vehicle all point to respondent's knowledge or "willful blindness"
to facts that a reasonable person should know point towards something nefarious.
Mater of Rico, supra; United States v. Villarreal, 324 F.3d 319, 324 (5th Cir.
2003)(substantial value of drug load being transpored by respondent is circumstantial
evidence probative of knowledge since respondent would not be entrusted with such
valuable caro if he was not par of the trafcking scheme}.
Because respondent has refused to testify in his own defense, we only have one
side of the stor. Respondent refuses to explain his inconsistent statements, or furher
elaborate on his motives in driving this vehicle. Therefore, based upon the
uncontrovered evidence before it, the cour fnds that respondent knew or should have
known that he was driving a vehicle with some type of contraband in it. That
contraband turned out to be marijuana, a federally controlled substance. As such, the
court furher finds that the OHS has proven by clear and convincing evidence that
respondent was a knowing paricipant in drug trafficking by driving that vehicle from
Mexico into the United States. The cour furher finds respondent an applicant fr
admission who is otherise inadmissible to the United States under section
212(a)(2)(C) of the Act.
8
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7. Relief from Removal
Respondent has not identified any frm of relief from removal that is available to
him, nor is the cour aware of any relief.
8. Orders
ORDER: Respondent's motion to terminate removal proceedings is denied.
FURTHER
ORDER: Respondent's motion to suppress his written statements made to HSI
Special Agents is denied.
FURTHER
ORDER: Respondent is fund inadmissible as charged in the Notice to Appear.
FURTHER
ORDER: Respondent is ordered removed from the United States to Mexico.
William Lee AbBtt
Immigration Judge
9
Date: August 13, 2013
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