Opinion
INS No. A72-158-743
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Aug. 10, 2000.
Petition to Review a Decision of the Immigration and Naturalization Service.
Before B. FLETCHER, TASHIMA, Circuit Judges, and DUPLANTIER, District Judge.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.
Pedro Alvarado-Vasquez ("Alvarado"), a native and citizen of Mexico, petitions for review of the Bureau of Immigration Appeal's ("BIA") order dismissing his appeal from an Immigration Judge's ("IJ") order finding him deportable and denying him adjustment of status. The BIA found that he was statutorily ineligible for adjustment of status because an immigration officer would have reason to believe that Alvarado was a conspirator in the illegal trafficking of controlled substances. The BIA had jurisdiction pursuant to 8 U.S.C. § 1103 and 8 C.F.R. §§ 3.1(b)(2) and 242.21. We dismiss the petition for lack of jurisdiction.
I. Factual and Procedural Background
Alvarado entered the United States in 1985 on an H-1 visa to pursue a career as a jockey. In November 1987, while working as a jockey in New Hampshire, he was arrested for possession of and conspiracy to sell a controlled substance (i.e., cocaine). After leaving the United States and returning by way of Mexico, and subsequently being arrested and convicted for possession of marijuana in Washington, Alvarado eventually pleaded guilty to the cocaine offenses.
Alvarado was married to a U.S. citizen in 1992 and, pursuant to an approved visa petition filed by his wife, applied for an adjustment of status in 1994. Because of the New Hampshire drug conviction, Alvarado was placed in deportation proceedings. On August 3, 1995, pursuant to Alvarado's motion, the New Hampshire state court in which he had been convicted vacated his drug convictions.
In his motion, Alvarado argued for vacation of his convictions on the ground that not doing so would result in his deportation. There is no indication in the record that his convictions were vacated on the basis of factual innocence.
The INS alleged, inter alia, that Alvarado was deportable under § 212(a)(2)(C) of the Immigration and Nationality Act ("INA"), 8 U.S .C. § 1182(a)(2)(c) (1995), as an alien whom an immigration officer knows or has reason to believe is or has been an illicit trafficker in a controlled substance.
Although it has since been amended, the statute then provided:
Albert Kane, a police officer, testified that in November 1987, working undercover, he was introduced to petitioner and another individual named Santos Dones by a confidential informant. Kane set up a purchase of cocaine from Dones and, during that transaction, Kane testified that he and Alvarado spoke briefly on the phone. The BIA found that Alvarado informed Kane (1) that he, Alvarado, and Dones had to drive to Warrens, Massachusetts, to retrieve the cocaine for Kane; and (2) of the location where they would meet. According to Kane, at the agreed-upon meeting place, Dones produced a bag of white powder which he said was an ounce of cocaine. Dones and Alvarado were subsequently arrested. At the police station, officers found a bag of cocaine in Alvarado's jacket pocket.
The Honorable Adrian G. Duplantier, Senior United States District Judge for the Eastern District of Louisiana, sitting by designation.
Alvarado raises two subsidiary issues with respect to Kane's testimony, neither of which has merit. First, he contends that the IJ erred in permitting Officer Kane to testify by telephone. Because Kane was subjected to full cross-examination by Alvarado, any error did not render the proceeding fundamentally unfair. Cf. Cunanan v. INS, 856 F.2d 1373, 1374-75 (9 th Cir.1988) (finding fundamental unfairness where alien was unable to cross-examine spouse whose damaging affidavit had been introduced against him). Alvarado's reliance on Purba v. INS, 884 F.2d 516 (9 th Cir.1989), is unavailing. Purba held only that the alien himself was entitled to be present at his own deportation hearing. See id. at 517.
Alvarado testified that his co-worker Dones asked him for a ride to Lawrence, Massachusetts, and never said anything about selling cocaine. At a Texaco station, Dones was having trouble giving directions over the phone, so Alvarado spoke to the person on the other end only to provide directions. When they arrived at the destination, Dones told Alvarado to wait and he would be right back. Alvarado further testified that he did not know how the bag of cocaine found after his arrest got into his jacket.
II. Standards of Review
We review the BIA's determination of legal issues de novo. See Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996) (en banc). We must, however, accord deference to the BIA's legal determinations under the principles outlined in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See INS v. Aguirre-Aguirre, 526 U.S. 415, 119 S.Ct. 1439, 1445, 143 L.Ed.2d 590 (1999). On matters involving the record, the BIA's determination "must be upheld if supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal quotation marks and citation omitted). To justify a reversal of the BIA's decision, Alvarado "must establish that the evidence not only supports that conclusion, but compels it." Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995) (internal quotation marks and citations omitted).
III. Discussion
In Alarcon-Serrano v. INS, No. 99-70578, 2000 WL 1015226 (9th Cir. July 25, 2000), we held that pursuant to § 309(c)(4)(G) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 110 Stat. 3009, 3625-627, this court lacks jurisdiction when the BIA's determination pursuant to INA § 212(a)(2)(C) that an alien is not admissible is supported by substantial evidence. See id. at *3. Specifically, if substantial evidence supports the BIA's conclusion that "an immigration officer 'knows or has reason to believe' that [the alien] is an illicit trafficker in controlled substances or that [the alien] has knowingly assisted, abetted, conspired with, or colluded with others in such illicit trafficking," we do not have jurisdiction over the petition for review. Id.
Alvarado is subject to IIRIRA's transitional rules, as the BIA dismissed his appeal from the IJ's decision on November 23, 1998, and deportation proceedings began on or about June 13, 1994. See Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir.1997).
Alvarado has failed to show that the evidence compels a finding in his favor; thus, he has not shown that the BIA's decision is not supported by substantial evidence. See Ghaly, 58 F.3d at 1431. We further note that § 212(a)(2)(C) does not require a showing that an alien is a current and active trafficker of illicit drugs; rather, knowing past aiding and abetting of, or conspiratorial activity related to, trafficking activity suffices. See INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C).
The INS has adduced sufficient evidence to show that Alvarado conspired with Dones to traffic in cocaine. No one disputes that Alvarado drove the vehicle to the location of the transaction. While the mere driving of a vehicle with drugs in it, standing alone, may not be sufficient to link the driver to a drug conspiracy, see United States v. Wiseman, 25 F.3d 862, 865 (9th Cir.1994), Officer Kane testified, in response to a question as to what his conversation was with Alvarado, that Alvarado "had driven there with Mr. Santos Dones in an attempt to get the ounce of cocaine for me and that the supplier was supposed to come up to New Hampshire and make the transaction." The BIA found that this evidence, coupled with the discovery of cocaine on Alvarado's person after his arrest, was sufficient to support the finding that an immigration officer would have reason to believe that Alvarado had been "an assister, abettor, or conspirator in the illicit trafficking" of a controlled substance. See Hamid v. INS, 538 F.2d 1389 (9th Cir.1976) (stating that "reason to believe," as opposed to knowledge, is the proper test under the former version of § 212(a)(2)(C)). We conclude that the evidence does not compel a finding contrary to the BIA's determination.
Alvarado argues that even if the evidence supports his awareness of the cocaine in the vehicle, § 212(a)(2)(C) has not been, and cannot be, interpreted so expansively as to encompass his conduct. The plain language of the provision, however, clearly covers Alvarado's conduct. See INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n. 12, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (stating that there is a "strong presumption that Congress expresses its intent through the language it chooses"). Specifically, it encompasses the alien's being or having been a "knowing assister ... with others in theillicit trafficking" of drugs. INA § 212(a)(2)(C) (emphasis added). Contrary to Alvarado's contentions, "illicit trafficking" is not defined as a series of events or as requiring a minimum quantity of drugs. See Pichardo v. INS, No. 98-70759, 2000 WL 897754 (9th Cir. July 7, 2000) (noting that BIA found alien removable for single incident of importing marijuana; affirming on other grounds); Rhoden v. United States, 55 F.3d 428 (9th Cir.1995) (finding that single importation of marijuana was sufficient to detain alien at border pursuant to § 212(a)(2)(C)). Further, given the deference owed to the INS under Chevron with respect to any ambiguity in the statute, its interpretation certainly falls within a range of reasonableness. See Chevron, 467 U.S. at 843-44 ("a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the ... agency").
In sum, based on the evidence in the record and under a proper interpretation of the statute, we cannot say that "no reasonable factfinder could fail to find the facts were as the alien alleged." Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir.1997). For the foregoing reasons, we lack jurisdiction to consider any of Alvarado's other grounds of relief, including his constitutional claims. See Alfaro-Reyes v. INS, No. 97-70443, 2000 WL 1059807 (9th Cir. Aug.3, 2000) (holding that constitutional claims are barred from direct review under IIRIRA § 309(c)(4)(G)).
The petition for review is DISMISSED.
Any alien who the consular or immigration officer knows or has reason to believe is or has been an illicit trafficker in any such controlled substance or is or has been a knowing assister, abettor, conspirator, or colluder with others in the illicit trafficking in any such controlled substance, is excludable.
Officer Kane also refreshed his recollection with a police report of the incident. Alvarado contends that this violated a provision of New Hampshire law which prohibits the disclosure or communication of "a record of arrest or conviction annulled pursuant to this section...." N.H.Rev.Stat. Ann.§ 651:5, § XII. Such provisions of state law, however, cannot control the admissibility of evidence in an immigration proceeding. See Paredes-Urrestarazu v. INS, 36 F.3d 801, 808 (9 th Cir.1994) (holding that the BIA "may consider an alien's past conduct and legal consequences flowing from that conduct regardless of a state's policy to the contrary").