May 20, 2019

Tenth Circuit: Acquittal on Drug Trafficking Charges Does Not Preclude Immigration Removal

The Tenth Circuit Court of Appeals issued its opinion in Mena-Flores v. Holder on Friday, January 23, 2015.

Gustavo Mena-Flores entered the United States illegally in 1990. In 2006, the Department of Homeland Security initiated removal proceedings. Mr. Mena-Flores admitted he was “undocumented,” but sought permanent residency based on his marriage to a U.S. citizen. The Department contended Mr. Mena-Flores was not eligible for residency due to criminal activity, stemming from an arrest of Mr. Mena-Flores on charges of drug trafficking.

Mr. Mena-Flores’ brother, Santiago, ran a drug trafficking organization. During his arrest and indictment, four witnesses identified Mr. Mena-Flores as involved in Santiago’s organization. Although Mr. Mena-Flores was eventually acquitted of all charges, the Department argued he should be denied residency due to “reason to believe” he could have been involved in the drug trade. The immigration judge granted Mr. Mena-Flores’ request for adjustment in status, but the Department appealed, and the BIA remanded to the immigration judge to consider all evidence of drug trafficking activity. On remand, the immigration judge denied Mr. Mena-Flores’ petition, finding there was reasonable, substantial, and probative evidence creating a reason to believe he had been involved in drug trafficking.

Mr. Mena-Flores appealed to the BIA, which upheld the immigration judge’s decision. He appealed the BIA’s decision to the Tenth Circuit. He then hired new counsel, who urged the BIA to reopen the case to consider new evidence. Mr. Mena-Flores argued his trial counsel was ineffective by failing to present the evidence earlier. The BIA denied the motions and Mr. Mena-Flores appealed.

Before addressing the merits of Mr. Mena-Flores’ appeals, the Tenth Circuit addressed the Department’s arguments that it lacked jurisdiction to hear the appeal. The Department argued 8 U.S.C. § 1252 barred review of (1) orders against aliens who are removable because of participation in drug trafficking, (2) orders involving discretionary relief, and (3) unexhausted arguments.

The Tenth Circuit extensively evaluated the term “removable” and determined that, although there was an inference Mr. Mena-Flores was involved in drug trafficking, he was not “removable” based on the drug trafficking because he was being removed for lack of documentation. The Department next argued that since adjustment in status involves a form of discretionary relief, the Tenth Circuit lacked jurisdiction. The jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B)(i) does not apply to the nondiscretionary aspects of relief. Finally, the Department argued Mr. Mena-Flores had not exhausted his administrative remedies, but the Tenth Circuit disagreed.

Addressing the merits of the appeal, the Tenth Circuit evaluated whether the BIA’s conclusion that Mr. Mena-Flores’ participation in drug trafficking precluded permanent residency was supported by substantial evidence. The Tenth Circuit looked at the inferences that Mr. Mena-Flores participated in drug trafficking and noted that he bore the burden of proof to show he was not involved in the drug trade. The Tenth Circuit would uphold the BIA’s determination if the evidence was “reasonable, substantial and probative.”

The Tenth Circuit found no error in the BIA’s determination. Witness statements, a special agent’s affidavit, and Mr. Mena-Flores’ testimony all influenced the immigration judge’s decision that Mr. Mena-Flores was not eligible for an adjustment in status due to his participation in drug trafficking activity. Because Mr. Mena-Flores bore the burden of proof, the Tenth Circuit found no error in the BIA’s decision. The evidence presented by Mr. Mena-Flores that tended to show non-involvement did not outweigh the inference created by the government’s evidence.

Mr. Mena-Flores also appealed the BIA’s denial of his motion to reopen. Although he argued that he had presented new evidence to the BIA, the Tenth Circuit disagreed. Mr. Mena-Flores’ counsel’s discretionary and tactical decisions to include or exclude evidence did not constitute ineffective assistance.

The Tenth Circuit found that Mr. Mena-Flores failed to meet his burden of proof, and affirmed the BIA’s decisions.

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