Leon-Hernandez v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 16, 2005

Charles R. Fulbruge III
Clerk
No. 04-60240
Summary Calendar

SALVADOR LEON-HERNANDEZ,

Petitioner,

versus

JOHN ASHCROFT, U. S. ATTORNEY GENERAL,

Respondent.

--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A75 244 560
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Salvador Leon-Hernandez (“Leon”) petitions this court for

review of the Board of Immigration Appeal’s (“BIA”) denial of his

motion to suppress and final order of removal. Leon argues that

the factual findings in this case are subject to de novo review

because the Immigration Judge (“IJ”) did not make sufficient

findings of fact. He contends that inconsistencies in the

testimony of the two Border Patrol agents who stopped him,

Lawrence Robinson and Enrique Flores, made their testimony not

credible. He further asserts that Robinson and Flores did not

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
 No. 04-60240
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have reasonable suspicion to make the traffic stop that led to

his arrest and the present removal proceedings.

On a petition for review of a BIA decision, we review

factual findings for substantial evidence and questions of law de

novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.

2001). “[T]he administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude

to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the order

of the BIA and will consider the underlying decision of the IJ

only if it influenced the determination of the BIA. Ontunez-

Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002). In the

present case, the BIA made sufficient factual findings and did

not rely upon the ruling of the IJ. Accordingly, we review the

factual findings of the BIA for substantial evidence. See id.;

Lopez-Gomez, 263 F.3d at 444.

Although there were some inconsistencies between Robinson’s

testimony and Flores’s testimony, their testimony was not

incredible as a matter of law. See United States v. Casteneda,

951 F.2d 44, 48 (5th Cir. 1992); United States v. Washington, 44

F.3d 1271, 1282 (5th Cir. 1995). Accordingly, we will not

disturb the BIA’s determination that the testimony of Robinson

and Flores was credible. See Chun v. INS, 40 F.3d 76, 78 (5th

Cir. 1994).

Both Robinson and Flores testified that Leon did not stop at

a stop sign and that the occupants of his truck looked surprised
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and behaved suspiciously. Flores asserted that the occupants of

the truck avoided making eye contact with him and did not wave to

him like ranchers from the area did. Flores averred that he had

been assigned to the area in question for 17 years and that

smugglers often used the road on which Leon was traveling. Given

the totality of the circumstances, the BIA did not err by finding

that Robinson and Flores had a reasonable suspicion to stop Leon.

See United States v. Morales, 191 F.3d 602, 604-07 (5th Cir.

1999); United States v. Orozco, 191 F.3d 578, 582-83 (5th Cir.

1999). The stop did not involve a flagrant violation of the

Fourth Amendment that transgressed notions of fundamental

fairness. See Young v. INS, 759 F.2d 450, 454 (5th Cir. 1985).

Leon’s petition for review is DENIED.