FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL CHAVEZ-REYES, No. 10-70776
Petitioner,
Agency No.
v. A093-198-458
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 17, 2014*
San Francisco, California
Filed January 27, 2014
Before: Diarmuid F. O’Scannlain, Susan P. Graber,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Graber
*
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
2 CHAVEZ-REYES V. HOLDER
SUMMARY**
Immigration
The panel denied Manuel Chavez-Reyes’ petition for
review of the Board of Immigration Appeals’ decision finding
him removable because there was reason to believe that he
engaged in or assisted others in illicit trafficking in a
controlled substance, based on circumstantial evidence and on
his guilty plea to possession of cocaine with intent to
distribute.
The panel held that the BIA did not violate petitioner’s
due process rights by considering his guilty plea, even though
this court overturned the resulting conviction on appeal,
because this court overturned the conviction solely because
the police officers lacked reasonable suspicion to conduct the
traffic stop, a reason unrelated to the voluntariness of the
guilty plea.
COUNSEL
Jose A. Bracamonte, Law Office of Jose A. Bracamonte,
Phoenix, Arizona, for Petitioner.
Tony West, Assistant Attorney General, Thomas B. Fatouros,
Senior Litigation Counsel, and Julie M. Iversen, Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C., for Respondent.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CHAVEZ-REYES V. HOLDER 3
OPINION
GRABER, Circuit Judge:
Petitioner Manuel Chavez-Reyes petitions for review of
the Board of Immigration Appeals’ (“BIA”) dismissal of his
appeal from an immigration judge’s (“IJ”) entry of a final
order of removal. The BIA held that Petitioner was
removable pursuant to 8 U.S.C. § 1182(a)(2)(C)(i)1 because
there was “reason to believe” that he “is or has been an illicit
trafficker” in a controlled substance or knowingly has assisted
others in trafficking. Because the BIA did not violate due
process or otherwise err, we deny the petition.
In 1989, Petitioner was the driver and sole occupant of a
truck containing almost 900 pounds of cocaine valued at
$28.7 million, in a hidden compartment. Police officers
pulled the truck over, found the drugs, and arrested Petitioner.
He pleaded guilty to possession of cocaine with intent to
distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1).
But we overturned that conviction on appeal on the ground
that the officers lacked sufficient suspicion to make a traffic
1
Title 8 U.S.C. § 1182(a)(2)(C)(i) defines the following class of
inadmissible aliens:
Any alien who the consular officer or the Attorney
General knows or has reason to believe—
(i) is or has been an illicit trafficker in any
controlled substance or in any listed chemical (as
defined in section 802 of Title 21), or is or has been a
knowing aider, abettor, assister, conspirator, or colluder
with others in the illicit trafficking in any such
controlled or listed substance or chemical, or
endeavored to do so[.]
4 CHAVEZ-REYES V. HOLDER
stop. United States v. Chavez-Reyes, 921 F.2d 281 (9th Cir.
1990) (unpublished decision).
In the immigration proceedings on review, the
government charged Petitioner with removability under
8 U.S.C. § 1182(a)(2)(C)(i).2 Unlike many immigration
statutes, which require a criminal conviction before imposing
immigration consequences,3 § 1182(a)(2)(C)(i) requires only
a “reason to believe” that Petitioner engaged or assisted in
illicit trafficking of drugs. Lopez-Molina v. Ashcroft,
368 F.3d 1206, 1208–09 (9th Cir. 2004).
Here, the BIA held that there was “reason to believe” that
Petitioner had engaged or assisted in illicit trafficking for two
primary reasons. First, the BIA held that the circumstantial
evidence strongly suggested that Petitioner knew that the
drugs were in the truck. The BIA reasoned that the amount
of cocaine was “too large for personal use, and the quantity
and high value of the cocaine suggests that [Petitioner] was
either a drug trafficker himself, or was trusted by the drug
traffickers and that he knew that the drugs were in the
vehicle.” Second, the BIA held that Petitioner’s guilty plea
also supported its conclusion. The BIA reasoned that,
although Petitioner’s conviction “was subsequently
overturned due to a finding that the agents lacked legal
reasonable cause to stop the truck [Petitioner] was driving,
2
This case has a long procedural history, but we recount only the
historical facts relevant to the issues on appeal.
3
See, e.g., 8 U.S.C. § 1182(a)(2)(A) (“Conviction of certain crimes”);
id. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated
felony at any time after admission is deportable.”); id. § 1227(a)(2)(C)
(“Any alien who at any time after admission is convicted [of specified
firearm offenses] is deportable.”).
CHAVEZ-REYES V. HOLDER 5
this does not change the fact that [Petitioner] pled guilty to
engaging in drug trafficking.”
Petitioner argues that the BIA violated his due process
rights by considering his guilty plea, because the resulting
conviction was overturned on appeal. We have jurisdiction
over this constitutional claim. Rojas v. Holder, 704 F.3d 792,
794 (9th Cir. 2012). We review de novo whether the BIA
violated due process. Ramirez-Alejandre v. Ashcroft,
319 F.3d 365, 377 (9th Cir. 2003) (en banc). We must
determine whether “the proceeding was so fundamentally
unfair that [Petitioner] was prevented from reasonably
presenting his case.” Sanchez-Cruz v. INS, 255 F.3d 775, 779
(9th Cir. 2001) (internal quotation marks omitted). We find
no fundamental unfairness here.
As a general rule, a voluntary guilty plea to criminal
charges is probative evidence that the petitioner did, in fact,
engage in the charged activity, even if the conviction is later
overturned for a reason unrelated to voluntariness.4 Indeed,
as the Eleventh Circuit held in a case in which the conviction
was expunged, “[b]ecause petitioner has pleaded guilty to
cocaine trafficking, it logically follows that immigration
officials do not merely have reason to believe he has
trafficked in narcotics, they have reason to know he has done
so.” Castano v. INS, 956 F.2d 236, 238 (11th Cir. 1992).
We recognize that there may be instances in which an
overturned conviction may require the BIA to give little or no
4
Because the BIA considered Petitioner’s guilty plea in combination
with other evidence, we need not and do not address whether a guilty plea
would be sufficient—by itself—to satisfy the “reason to believe” standard.
We decide only that the BIA properly considered the guilty plea at issue.
6 CHAVEZ-REYES V. HOLDER
weight to a guilty plea. For example, the Eleventh Circuit has
held that a guilty plea may “carry little or no probative
weight,” Garces v. U.S. Attorney Gen., 611 F.3d 1337, 1347
(11th Cir. 2010), if, among other things, the guilty plea was
involuntary and the state court later vacated the conviction on
that ground, id. at 1340–41, 1347–48. Here, however, we
overturned Petitioner’s conviction solely because the police
officers lacked reasonable suspicion to conduct the traffic
stop—a reason unrelated to the voluntariness of the guilty
plea. Nor has Petitioner suggested any other particularized
reason why his guilty plea is so unreliable that the BIA’s
reliance on it rendered his proceeding “fundamentally unfair.”
Sanchez-Cruz, 255 F.3d at 779. Accordingly, we conclude
that the BIA did not violate Petitioner’s due process rights.
Petitioner also argues that substantial evidence does not
support the BIA’s “reason to believe” finding. See Lopez-
Molina, 368 F.3d at 1211 (holding that we review the BIA’s
“reason to believe” finding for substantial evidence). We
disagree. The large amount of drugs in a vehicle over which
Petitioner had sole control, coupled with his guilty plea,
strongly suggests that Petitioner indeed knew that his truck
contained drugs. “While a generous fact-finder might have
believed [Petitioner’s] version of the facts, both the BIA and
IJ were clearly within reason on these facts and circumstances
to conclude otherwise.” Alarcon-Serrano v. INS, 220 F.3d
1116, 1120 (9th Cir. 2000); see also Cuevas v. Holder,
737 F.3d 972, 975–76 (5th Cir. 2013) (holding, in similar
circumstances, that substantial evidence supported the BIA’s
“reason to believe” finding). Petitioner’s reliance on our
decision in Pichardo v. INS, 188 F.3d 1079 (9th Cir. 1999),
CHAVEZ-REYES V. HOLDER 7
is in error, because that opinion was withdrawn and
superseded on rehearing, 216 F.3d 1198 (9th Cir. 2000). In
short, the BIA’s decision rests on substantial evidence.
Petition DENIED.