Gomez-Granillo, et al v. Holder

Filing

FILED OPINION (A. WALLACE TASHIMA, RAYMOND C. FISHER and MARK L. WOLF) PETITION GRANTED; REMANDED with instructions. Judge: MLW Authoring. FILED AND ENTERED JUDGMENT. [7819653]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



LUIS GOMEZ-GRANILLO,
Petitioner,
ERIC H. HOLDER
General,

v.
JR., Attorney
Respondent.




No. 06-70635
Agency No.
A091-815-131
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 11, 2011—Pasadena, California
Filed July 14, 2011
Before: A. Wallace Tashima and Raymond C. Fisher,
Circuit Judges, and Mark L. Wolf, District Judge.*
Opinion by Judge Wolf

*The Honorable Mark L. Wolf, Chief District Judge, United States District Court for the District of Massachusetts, sitting by designation.

9535

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COUNSEL
Dario Aguirre, Aguirre Law Group, Denver, Colorado; Guy
Grande (argued), Aguirre Law Group, San Diego, California,
for the petitioner.

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John Hogan and Jennifer L. Lightbody (argued), United States
Department of Justice, Washington, D.C., for the respondent.

OPINION
MARK L. WOLF, District Judge:
Petitioner Luis Gomez-Granillo petitions for review of a
decision of the Board of Immigration Appeals (“BIA”) dismissing an appeal from an order of removal to Mexico.
Despite petitioner’s testimony to the contrary, an Immigration
Judge (“IJ”) found that petitioner was inadmissible under 8
U.S.C. § 1182(a)(2)(C) because the inspectors at the border
inspection station had reason to believe that petitioner was
knowingly involved in drug trafficking. The BIA dismissed
the appeal because substantial evidence supported the finding
that an immigration officer had the necessary “reason to
believe.” We grant the petition and remand for a new hearing
because the IJ misunderstood the relevant legal standard.
I.

FACTUAL AND PROCEDURAL BACKGROUND

At the time of the proceedings before the IJ, petitioner was
a 57-year-old divorced male. He was a native and citizen of
Mexico and, since December 1, 1990, a lawful permanent resident (“LPR”) of the United States. He worked as a commercial truck driver.
On December 13, 2002, petitioner drove a tractor and
trailer from within Mexico to the Port of Entry at Otay Mesa,
California. There, his truck was inspected by an immigration
officer, George Abanico, and found to contain 8,595 pounds
of marijuana hidden within crates of produce. Later that day,
petitioner was interviewed by Special Agent Richard Encinas.
On January 9, 2003, Inspector Tony Rodriguez took a state-

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ment from petitioner. On the same day, the government issued
a Notice to Appear charging petitioner as an “arriving alien”
who had applied for admission and was inadmissible under
§ 1182(a)(2)(C) because the immigration officer knew or had
reason to believe that petitioner was or had been an illicit trafficker in a controlled substance or had been a knowing assister, abettor, conspirator, or collaborator with others in the
illicit trafficking in a controlled substance.1
At an evidentiary hearing before the IJ, petitioner testified
that he had been a truck driver since 1969 and was, at the relevant time, employed by Luis Lara, who owned a business in
Tijuana, Mexico. Petitioner’s job was to arrive at Lara’s business and pick up a loaded refrigeration trailer with a capacity
of 45,000 pounds. Petitioner stated that he did not observe the
loading process and performed only a brief inspection of the
contents of the trailer to verify that loading was complete.
Petitioner further testified that, on the day in question, he
arrived in Mexico from Los Angeles, left the empty truck at
Lara’s business, and then went to his sister’s home in Tijuana
to eat. Lara called petitioner at his sister’s home to tell him
the truck was ready. Petitioner then went to Lara’s business,
checked that the truck was completely loaded, and departed
for the local customs agency and, ultimately, the United
States. Petitioner testified that Lara did not tell him what was
in the trailer, that he saw boxes of vegetables in the trailer,
and that the manifest he received at the customs agency listed
peppers and cucumbers. Petitioner testified that he did not
1

Although the Notice to Appear cites the correct statutory provision, the
language charging that an “immigration officer knows or has reason to
believe” is drawn from a version of statute which was, as discussed below,
superseded in 1999. By January 2003, the statute defined the correct question as whether “the consular officer or the Attorney General knows or has
reason to believe.” The BIA has read the term “Attorney General” to
include the Secretary of Homeland Security. See Matter of CasillasTopete, 25 I&N Dec. 317, 319-20 (BIA 2010).

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know the truck contained illegal drugs until officers at the
border found the marijuana.
Agents of the government also testified at the hearing. Officer Abanico described how he discovered the marijuana by
inspecting the truck by x-ray and then by offloading the cargo
and inserting a probe into the middle of the boxes of produce.
He also testified that, while he conducted his inspection, petitioner violated port policy by speaking on a cell phone and
repeatedly ignored instructions to cease doing so. Special
Agent Encinas described his December 13, 2002 interview
with petitioner. He perceived discrepancies in petitioner’s
trucking log book, as well as inconsistencies in petitioner’s
responses when petitioner was asked about his history of
money import/export transactions. Inspector Rodriguez testified concerning his January 9, 2003 interview with petitioner.
Agent Ted Lehman testified as an expert on the drug trade
and opined that it would be highly unusual for such a large
quantity of drugs to be entrusted to an unknowing courier.
In addition to these witnesses, both the government and
petitioner submitted various exhibits, including, for example,
petitioner’s log book, federal regulations regarding the maintenance of such log books, and photographs of Bajas Produce
in Los Angeles, a location at which petitioner stopped on
December 12, 2002.
In his decision following the evidentiary hearing, the IJ
stated that petitioner “makes an application for admission to
the United States” and sustained the charge of inadmissibility.
Citing Matter of Rocha, 20 I&N Dec. 944 (BIA 1995), superseded by statute, Intelligence Authorization Act for Fiscal
Year 2000, Pub. L. No. 106-120, § 809, 113 Stat. 1606, 1632,
as recognized in Matter of Casillas-Topete, 25 I&N Dec. 317
(BIA 2010), the IJ concluded “the ‘reason to believe’ is the
officer’s belief at the time the alien is encountered at the port
of entry.” The IJ “agree[d] with the Government that the totality of the circumstances indicate clear, convincing, and

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unequivocal evidence that the inspectors at the border inspection station had reason to believe that the [petitioner] was consciously involved in an illicit scheme to bring into the United
States a huge load of marijuana.” Specifically, the IJ noted the
following circumstantial evidence that petitioner knowingly
transported marijuana.
1.

At the border, petitioner “did not act as a man at
ease and with innocent mind.” Specifically, as
Officer Abanico carried out his inspection of the
truck, petitioner violated port policy by speaking
on a cell phone and repeatedly ignored instructions to cease doing so.

2.

When questioned by Special Agent Encinas,
petitioner “was very nervous and fidgeting in his
seat.” Petitioner also unequivocally denied prior
involvement in money transfer activities. However, after being confronted with documents
showing that petitioner was involved in 1998
and 1999 with import/export transactions of
$30,000 and $27,000, petitioner “became flustered, changed his story, and then stated that he
had been involved in such transactions, but
could not remember the exact details.”

3.

Trucking regulations “mandate that the trucker
record the location of each stop.” When petitioner made a stop at the Bajas Produce company in Los Angeles on December 12, 2002 (the
day before the discovery of the marijuana), he
should have but did not “make a Bajas Produce
entry in his log book for December 12, 2002.”
Rather, Special Agent Encinas observed that the
log book showed a stop that day at the Los
Angeles market.

4.

Agent Lehmann, who has many years of experience regarding the illicit trafficking in narcotics

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across the border, testified “that it would be
highly unusual for a courier . . . to be totally
unaware of the presence of more than 8,500
pounds of marijuana in the truck that he was
driving.” He testified that the owner would not
take the chance of giving millions of dollars
worth of marijuana to an unknowing courier
because “loss of the load would be a catastrophic loss to the owner thereof.”
Regarding petitioner’s testimony denying knowledge of the
marijuana, the IJ stated only that “[t]he mere fact that the
[petitioner] does not admit guilty knowledge . . . does not preclude a finding against him on this issue.” On September 13,
2004, the IJ ordered petitioner removed from the United
States to Mexico.2
Petitioner appealed to the BIA. On January 4, 2006, the
BIA dismissed the appeal because substantial evidence supported the IJ’s conclusion that petitioner was inadmissible.
The BIA relied in part on reasoning similar to the IJ’s. The
BIA also found that, although petitioner testified that Lara
denied ownership of the drugs, Lara retained counsel for petitioner during related criminal proceedings.3 Additionally, the
BIA found that, although petitioner initially claimed that he
did not have fear of reprisal from the owner of the marijuana,
he later testified that he feared returning to Mexico as “ ‘this
persons that did this with me would take reprisals against
me.’ ” Notably, while the IJ, citing Matter of Rocha, 20 I&N
Dec. 944, focused the inquiry on whether the officials at the
border had reason to believe petitioner was engaged in drug
trafficking, the BIA, citing Lopez-Molina v. Ashcroft, 368
2

In addition to finding petitioner inadmissible, the IJ denied petitioner’s
application for cancellation of removal. The BIA affirmed. The cancellation issue has not been raised in this petition for review.
3
The government represents that criminal charges against petitioner
were ultimately dismissed on motion of the government.

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F.3d 1206 (9th Cir. 2004), and Alarcon-Serrano v. INS, 220
F.3d 1116, 1119 (9th Cir. 2000), appears to have focused on
whether substantial evidence supported the IJ having reason
to believe, based on the totality of the evidence at the evidentiary hearing, that petitioner was participating in drug trafficking.
The IJ made no explicit adverse credibility finding with
respect to petitioner’s testimony. Indeed, because the IJ
found, based on Matter of Rocha, that the “reason to believe”
is the border “officer’s belief at the time the alien is encountered at the port of entry,” it appears that the IJ did not believe
that it was necessary or appropriate to evaluate the veracity of
petitioner’s testimony at the hearing at all.
The BIA reviewed the IJ’s conclusions under the “substantial evidence” standard. Although the BIA noted arguable
inconsistencies in petitioner’s testimony, the BIA’s only mention of petitioner’s credibility came in a footnote, which reads
in its entirety:
The [petitioner] argues that his claim of lack of
knowledge must be accepted under Ninth Circuit
credibility case law, absent a supportable adverse
credibility ruling by the Immigration Judge. Unlike
asylum cases, for example, where the issue is most
often an alien’s past persecution or well-founded
fear of future persecution, the focus of the [petitioner’s] case was whether an immigration officer has
reason to believe the [petitioner] is a drug trafficker.
A reasonable immigration officer is not required to
accept a claim of innocence when the totality of the
evidence points the other way.
Following the BIA’s decision, petitioner timely filed this
petition for review. In a May 3, 2006 Order, this court stayed
petitioner’s removal.

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II.

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JURISDICTION AND STANDARD OF REVIEW
Under 8 U.S.C. § 1182(a)(2)(C),
[a]ny alien who the consular officer or the Attorney
General knows or has reason to believe . . . 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 . . . is
inadmissible.

The court must “determine whether ‘reasonable, substantial,
and probative evidence’ supports the IJ’s ‘reason to believe’
that [petitioner] knew he was participating in illicit drug trafficking.” Lopez-Molina, 368 F.3d at 1211 (quoting AlarconSerrano, 220 F.3d at 1119). In addressing this question, it is
appropriate to examine the reasoning and findings of both the
BIA and IJ. See Alarcon-Serrano, 220 F.3d at 1119-20. In
Lopez-Molina, we held that, if substantial evidence supports
the IJ’s reason to believe that petitioner knowingly participated in illicit trafficking of drugs, the court is barred from
reviewing other legal claims arising out of the removal order
pursuant to 8 U.S.C. § 1252(a)(2)(C), and the petition for
review must be dismissed for lack of jurisdiction. See 368
F.3d at 1212. Subsequent to Lopez-Molina and AlarconSerrano, however, the REAL ID Act clarified that “[n]othing
in [8 U.S.C. § 1252(a)(2)(B)-(C)] . . . shall be construed as
precluding review of constitutional claims or questions of law
raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D).
Although there is arguably now a tension between the statute
and our holding in Lopez-Molina, we are unable to determine
whether substantial evidence supports the agency’s decision
in this case for the reasons explained below, and we therefore
have jurisdiction over the petition in any event.

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III.

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DISCUSSION

In the course of his argument, petitioner raises two preliminary questions of law which must be resolved before addressing whether substantial evidence exists to support the IJ’s
“reason to believe.” First, petitioner argues that information
not available to the examining officers at the time petitioner
sought admission at the Otay Mesa Port of Entry is not relevant to the “reason to believe” inquiry and should not have
been considered by the IJ. Second, and presumably in the
alternative, petitioner argues that unless the IJ makes an
explicit adverse credibility finding regarding petitioner’s testimony at the hearing, the court must take petitioner’s testimony as true. As explained below, petitioner’s contentions are
not correct. Nevertheless, we remand this matter because the
IJ applied the incorrect standard in evaluating whether there
was “reason to believe,” and therefore appears to have
wrongly assumed that he could not take into consideration
whether or not petitioner testified credibly that he had no
knowledge of the marijuana.
A.

Defining “Reason to Believe”

Citing Matter of Rocha, 20 I&N Dec. 944, petitioner argues
that, as the IJ held in this case, the relevant “reason to
believe” is the immigration officer’s belief at the time the
alien is encountered at the port of entry. Here, officers who
encountered petitioner at the border on December 13, 2002,
did testify before the IJ about what they observed at that time.
Officer Abanico inspected petitioner’s truck and testified that
he found the marijuana and that petitioner made phone calls
in violation of policy and oral instructions. Special Agent
Encinas questioned petitioner shortly after the marijuana was
discovered and testified that petitioner had a demeanor consistent with a drug trafficker, that petitioner’s log book omitted
a stop at Bajas Produce, and that petitioner made inconsistent
statements about his history of transporting money across the
border.

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However, both the IJ and BIA also relied on other information that was not available to anyone at the border on December 13, 2002. Agent Lehman, who did not take part in events
at the border, testified as an expert that, based on his years of
experience, it would be highly unusual for a drug smuggler to
entrust such a large quantity of drugs to an unknowing courier. Inspector Rodriguez described his interview with petitioner on January 9, 2003, about a month after petitioner’s
attempt to cross the border. Although the BIA and IJ did not
rely on information provided by Inspector Rodriguez, both the
IJ and BIA relied on Agent Lehman’s expert testimony. Additionally, although not noted by the petitioner, the BIA relied
on other pieces of information that were not available to anyone at the border on December 13, 2002, such as a statement
made by petitioner at the hearing and the fact that the owner
of the trucking company retained an attorney for petitioner
during criminal proceedings arising out of the seizure of marijuana at the border. Petitioner argues that this later-acquired
information cannot properly be considered in deciding
whether there was the requisite “reason to believe” that he
knowingly transported the seized marijuana.
In its brief, submitted in 2006, the government, citing
Lopez-Molina, 368 F.3d at 1209-11, argues that we should
look to whether substantial evidence supports the IJ having
the necessary “reason to believe.” See Resp.’s Brief at 31. At
oral argument, however, the government argued that the court
should follow the BIA’s 2010 precedential decision in Matter
of Casillas-Topete, which recognizes that Matter of Rocha
was superseded by statute and requires instead that “the information [creating ‘reason to believe’] was demonstrably
known to an appropriate immigration official when the admission occurred,” but not necessarily to the inspecting immigration officer. Matter of Casillas-Topete, 25 I&N Dec. at 321.
We are, therefore, required to decide who must have the
necessary “reason to believe” and at what time. Although the
Ninth Circuit and BIA precedent might initially appear incon-

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sistent, we conclude that, in fact, the BIA’s approach in Matter of Casillas-Topete and our court’s approach in AlarconSerrano and later cases are reconcilable. This conclusion
requires some discussion of the relevant cases, particularly
because it appears that we are the first court of appeals to
address the implications of Matter of Rocha and Matter of
Casillas-Topete. Indeed, it appears we are the first court of
appeals ever to cite these precedential decisions of the BIA.
1.

Matter of Rocha: the BIA Construes the Pre-1999
Version of § 1182(a)(2)(C)

[1] In 1995, in Matter of Rocha, the BIA applied an earlier
version of § 1182(a)(2)(C), which at that time excluded “any
alien who the consular or immigration officer knows or has
reason to believe” is a drug trafficker. See 20 I&N Dec. at 945
(quoting § 1182(a)(2)(C)) (emphasis added). In that case, an
alien was admitted into the United States without incident.
See id. at 944. Indeed, it was uncontested that the alien “made
an ‘entry’ ” into the United States before encountering any
problems. See id. at 946. Subsequently, however, the alien
was stopped at a traffic checkpoint, found to be in possession
of marijuana, and charged with being deportable under 8
U.S.C. § 1251(a)(1)(A) (now 8 U.S.C. § 1227(a)(1)(A)) on
the basis of being excludable at the time of entry under
§ 1182(a)(2)(C). See id. at 944-45. The BIA held that “the
particular examining officer who inspected the [alien] must in
fact have known or suspected that the [alien] was a trafficker
at the time of his application for admission.” Id. at 946.
Because the marijuana was not found until after the alien
made entry, the examining officer could not have had the necessary “reason to believe,” and the alien’s deportation proceedings were terminated. See id. at 946-48.
2.

Matter of Casillas-Topete: the BIA Construes the
Post-1999 Version of § 1182(a)(2)(C)

[2] In 2010, in Matter of Casillas-Topete, the BIA held
that Matter of Rocha was superseded by statute. See 25 I&N

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Dec. at 321. In Matter of Casillas-Topete, officials within the
Department of Homeland Security (“DHS”) knew petitioner
had been convicted of unlawful transportation of marijuana
for sale while residing in the United States and placed him in
deportation proceedings on that basis. See id. at 318. However, the alien then left the United States and, upon his return,
was admitted. See id. DHS then withdrew the original deportation charges and lodged a new deportation charge that the
alien (like the alien in Matter of Rocha) was deportable under
8 U.S.C. § 1227(a)(1)(A) on the basis of being inadmissible
at time of admission under § 1182(a)(2)(C) because there was
reason to believe he was a drug trafficker based on his earlier
conviction. See id. The IJ, citing Matter of Rocha, concluded
the alien was not inadmissible because the particular officer
examining him at the border did not know or suspect he was
a drug trafficker. See id.
[3] The BIA vacated the IJ’s decision based on the 1999
amendment to § 1182(a)(2)(C), which broadened the text to
render inadmissible, and therefore removable, “ ‘[a]ny alien
who the consular officer or the Attorney General knows or
has reason to believe’ ” is a drug trafficker. See id. at 319
(quoting Intelligence Authorization Act for Fiscal Year 2000,
Pub. L. No. 106-120, § 809, 113 Stat. 1606, 1632 (effective
Dec. 3, 1999)) (emphasis added). The BIA also noted that,
given the Homeland Security Act of 2002, the reference to the
Attorney General should be read to include the Secretary of
Homeland Security. See id. at 320 (citing Homeland Security
Act of 2002, Pub. L. No. 107-296, § 1517, 116 Stat. 2135,
2311 (enacted Nov. 25, 2002) (codified at 6 U.S.C. § 557)).
In light of these statutory amendments, the BIA held that “it
is not relevant under the terms of the statute that the inspecting immigration officer does not have access to information
regarding the alien’s trafficking if that information is known
to other immigration officials.” See 25 I&N Dec. at 321.
“Thus, as long as the information was demonstrably known to
an appropriate immigration official when the admission
occurred, it can be relied on to sustain the charge.” See id.

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(emphasis added); cf. Hing Sum v. Holder, 602 F.3d 1092,
1096 (9th Cir. 2010) (defining admission); Matter of RosasRamirez, 22 I&N Dec. 616, 618-20 (BIA 1999) (same). The
BIA vacated the IJ’s decision because DHS officials knew of
the alien’s conviction at the time he was admitted, even if the
particular examining officer at the border did not. See id.
3.

Ninth Circuit Precedent

[4] In 2000, in Alarcon-Serrano, petitioner was detained at
the border after officers found concealed marijuana in his
vehicle, and he was then placed in exclusion proceedings
under the narrower pre-1999 version of § 1182(a)(2)(C). See
220 F.3d at 1117-18.4 Applying the pre-1999 version of
§ 1182(a)(2)(C), we held that “the only requirement is that an
immigration officer ‘knows or has reason to believe’ that
[petitioner] is an illicit trafficker in controlled substances or
that [petitioner] has knowingly assisted, abetted, conspired
with, or colluded with others in such illicit trafficking.” Id. at
1119 (emphasis added). In the next sentence, the court held
that “[t]he appropriate way of measuring whether the IJ and
BIA had ‘reason to believe’ that [petitioner] knew he was participating in drug trafficking is to determine whether substantial evidence supports such a conclusion.” Id. (emphasis
added). Thus, we held that, under the pre-1999 version of
§ 1182(a)(2)(C), the focus is upon the information available
to the IJ and BIA, at least where the alien seeks adjudication
of admissibility before admission. See id. at 1119-20. The
court in Alarcon-Serrano employed this approach, focusing
on the veracity of petitioner’s testimony before the IJ, and
information derived from it, which could not have been available to officers at the border or on the day petitioner was
apprehended at the border. See id. at 1118, 1119-20.
4

Petitioner was also charged with a different ground of exclusion, but
the IJ, BIA, and Ninth Circuit did not address or rely upon that ground.
See Alarcon-Serrano, 220 F.3d at 1117 n.3.

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[5] In 2004, in Lopez-Molina, petitioner was admitted to
the United States as a visitor in 1995, and a year later was
charged with misprision of felony arising out of a drug-related
arrest in 1990, to which he ultimately pled guilty. See 368
F.3d at 1207. Petitioner later applied to adjust his status to
permanent resident. See id. His application was denied, and he
was charged with being deportable under 8 U.S.C.
§ 1227(a)(1)(A) because he was inadmissible under
§ 1182(a)(2)(C) at the time of adjustment of status. See id.
[6] Applying the broader post-1999 version of
§ 1182(a)(2)(C), we held that “[t]he only requirement under
§ 1182(a)(2)(C) is that an immigration official has ‘reason to
believe’ that the alien is or has been involved in illicit drug
trafficking.” Id. at 1209 & n.5. Citing Alarcon-Serrano, the
court held that “we must . . . determine whether ‘reasonable,
substantial, and probative evidence’ supports the IJ’s ‘reason
to believe’ that [petitioner] knew he was participating in illicit
drug trafficking. Id. at 1211 (quoting Alarcon-Serrano, 220
F.3d at 1119) (emphasis added). Thus, in Lopez-Molina, the
court imported the holding of Alarcon-Serrano into the application of the post-1999 version of § 1182(a)(2)(C). See id.
This importation is consistent with the BIA’s reasoning in
Casillas-Topete that the amendments to the statute substituted
the broad term “Attorney General [or Secretary of Homeland
Security]” in place of the narrower term “immigration officer.” See 25 I&N Dec. at 319-20. In Alarcon-Serrano, we
construed the IJ to be the “immigration officer” before the
1999 amendment, see 220 F.3d at 1119-20, and the IJ, an
employee of the Department of Justice, fits even more comfortably with the term “Attorney General.” See CasillasTopete, 25 I&N Dec. at 320.5
5

After the Homeland Security Act of 2002, the IJ and the BIA remain
in the Department of Justice and implement its immigration-related adjudicative functions. See Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th
Cir. 2005).

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Ultimately, the court in Lopez-Molina found the necessary
“reason to believe” based on records of petitioner’s 1990
arrest and his later guilty plea resulting in a criminal conviction, which existed at the time of his 1997 application to
adjust his status. See 368 F.3d at 1208, 1211. Evidently the
immigration authorities were aware of these documents at the
time of the application for adjustment, as they denied the
application and “soon thereafter” initiated removal proceedings based on the arrest and conviction. See id. at 1207.
In 2005, in Lopez-Umanzor v. Gonzales, the petitioner
entered the United States illegally, was placed in removal proceedings, and then applied for cancellation of removal under
8 U.S.C. § 1229b(b)(2). See 405 F.3d 1049, 1050 (9th Cir.
2005). To qualify for cancellation of removal, petitioner had
to show at that time, among other things, that she was not
inadmissible under § 1182(a)(2)(C). See id. at 1053. The government contended there was reason to believe the petitioner
was a drug trafficker because she had been charged in Alaska
with Misconduct Involving a Controlled Substance based on
evidence of involvement with cocaine distribution. See id. at
1052. That charge, however, had been dismissed, and petitioner testified before the IJ that she was never involved in
drug trafficking and that there was an innocent explanation
for the circumstantial evidence of such involvement. See id.
Adopting the holding of Alarcon-Serrano, our court stated
that “ ‘[t]he appropriate way of measuring whether the IJ and
BIA had reason to believe’ that a petitioner is involved in
drug trafficking is to assess ‘whether substantial evidence
supports such a conclusion.’ ” Id. at 1059 n.10 (quoting
Alarcon-Serrano, 220 F.3d at 1119). In Lopez-Umanzor, we
held that the IJ and BIA are among those included in the collective term “Attorney General [or Secretary of Homeland
Security],” at least where the question is whether the alien is
inadmissible at the time of IJ’s evidentiary hearing. See id. at
1053, 1059 n.10. The analysis in Lopez-Umanzor reflects that
approach, as it focuses on “one question: who was telling the

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truth [at the evidentiary hearing] about Petitioner’s alleged
involvement in drug trafficking, Petitioner or [a detective]?”
See id. at 1053. This question would only be relevant if information received by the IJ at the evidentiary hearing could be
considered in the “reason to believe” analysis. The court concluded it should be considered. See id. at 1058-59. Ultimately,
it held that the IJ improperly made an adverse credibility
determination regarding petitioner’s testimony and remanded
for a new hearing, preferably before a different IJ. See id. at
1059.
4.

The Various “Reason to Believe” Cases Are Not in
Conflict

[7] The BIA’s decision in Casillas-Topete and this circuit’s approach in Alarcon-Serrano and later cases lead to the
following, consistent conclusions.
[8] 1.

The IJ and BIA may, depending on the circumstances, be among the “appropriate
immigration officials” included in the term
“Attorney General [or Secretary of Homeland Security]” in § 1182(a)(2)(C). See
Lopez-Molina, 368 F.3d at 1211-12;
Alarcon-Serrano, 220 F.3d at 1119;
Casillas-Topete, 25 I&N Dec. at 321.

[9] 2.

The “appropriate immigration officials”
may make a finding of “reason to believe”
based only on information available “when
the admission occurred.” See CasillasTopete, 25 I&N Dec. at 321. Therefore, the
appropriate immigration officials must collectively know the information before the
alien makes lawful entry into the United
States after inspection and authorization by
an immigration officer. See 8 U.S.C.
§ 1101(a)(13)(A); Hing Sum, 602 F.3d at

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1096 (defining admission); Matter of RosasRamirez, 22 I&N Dec. at 618-20 (same).
[10] 3.

Accordingly, where the alien is apprehended at the border and, rather than being
admitted, is charged with being inadmissible, information learned by the IJ during
the subsequent proceedings to determine
inadmissibility may be considered in
deciding whether there is “reason to
believe” the alien is involved in drug trafficking. See Alarcon-Serrano, 220 F.3d at
1119-20.6 However, if the alien is admitted, information not known to an appropriate immigration official when the
admission occurred may not later be relied
upon to sustain a charge that the alien was
inadmissible at the time of admission.7 See
Casillas-Topete, 25 I&N Dec. at 321.

[11] Applying these principles, the proper question in this
case is whether substantial evidence supports the IJ and BIA
having “reason to believe” petitioner knowingly engaged in
drug trafficking based on all the evidence known to the IJ at
the time of the IJ’s decision. See Alarcon-Serrano, 220 F.3d
at 1119-20. As in Alarcon-Serrano, and unlike in CasillasTopete, petitioner arrived at the border and was apprehended
and alleged to be inadmissible. Compare Alarcon-Serrano,
6

This conclusion is consistent with the BIA’s approach in Matter of
Rico, 16 I&N Dec. 181, 182-86 (BIA 1977), a case applying a predecessor
statute to § 1182(a)(2)(C) and cited by the BIA in its decision in this case.
In Matter of Rico, the alien was apprehended at the border and detained
for an exclusion hearing. See id. at 182. The BIA clearly found the alien’s
testimony before the IJ relevant but simply disbelieved it. See id. at 186.
7
Because petitioner was charged with being inadmissible at the time of
his hearing, we need not, and do not, decide whether the IJ may consider
an alien’s post-admission testimony in evaluating the evidence known at
the time of admission.

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220 F.3d at 1118-19, with Casillas-Topete, 25 I&N Dec. at
318. In the Notice to Appear, petitioner was charged as an
arriving alien. Therefore, consistent with the conclusions
articulated above, the IJ, as a representative of the Attorney
General, was free to receive new information at the evidentiary hearing, and to decide its credibility and weight. See
Alarcon-Serrano, 220 F.3d at 1119-20. It was permissible and
appropriate for the IJ and BIA to rely on such information in
determining whether there was “reason to believe” petitioner
was knowingly transporting marijuana when he attempted to
cross the border into the United States. See id. Accordingly,
we conclude that it was proper for the IJ to receive and consider petitioner’s testimony, Agent Lehman’s opinion, and
other information not necessarily known, actually or constructively, to officers at the border on December 13, 2002.
B.

No Explicit Adverse Credibility Determination Is
Required

Petitioner also argues that where, as here, the IJ does not
make an explicit adverse credibility finding regarding petitioner’s testimony, the court must assume that the petitioner’s
factual assertions are true. This contention alone, if correct,
would require that this court grant the petition. See LopezUmanzor, 405 F.3d at 1058-59. As in Lopez-Umanzor, the
credibility of petitioner’s denial of knowledge is the critical
issue in the litigation. See id. If petitioner’s testimony that he
did not know he was transporting marijuana was deemed
credible by the IJ and BIA, they could not — and presumably
would not — have found that the other evidence provided the
required reason for them to believe otherwise. See id.
Although the government did not directly address this argument in its initial response to the petition, we ordered supplemental briefing addressing this issue. We hold that in this case
we need not take petitioner’s testimony as true for lack of an
explicit adverse credibility determination.

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[12] In 2004, in Kalubi v. Ashcroft, an asylum case, we
held that “[i]n this circuit adverse credibility findings in the
eligibility phase must be express and the IJ must offer a ‘specific, cogent reason for any stated disbelief.’ ” 364 F.3d 1134,
1137 (9th Cir. 2004) (quoting He v. Ashcroft, 328 F.3d 593,
595 (9th Cir. 2003)) (emphasis added). With one exception,
this statement of the law is consistent with the cases cited by
the parties and found by the court. See, e.g., Lopez-Alvarado
v. Ashcroft, 381 F.3d 847, 851 (9th Cir. 2004) (eligibility for
cancellation of removal); Damon v. Ashcroft, 360 F.3d 1084,
1086 n.2 (9th Cir. 2004) (eligibility for waiver of under 8
U.S.C. § 1186a(c)(4)); Kataria v. INS, 232 F.3d 1107, 111314 (9th Cir. 2000) (eligibility for asylum); Leiva-Montalvo v.
INS, 173 F.3d 749, 750 (9th Cir. 1999) (eligibility for asylum
and withholding of removal).8 Indeed, shortly after this case
was argued and submitted, another panel of this court held
that “there is no general requirement that the testimony of an
applicant seeking admission to the United States outside of
the asylum context be regarded as true” in the absence of an
explicit adverse credibility determination. Abufayad v.
Holder, 632 F.3d 623, 631 (9th Cir. 2011).9
The exception referenced above is McDonald v. Gonzales,
in which the court stated in a footnote that the IJ did not make
an explicit adverse credibility determination when deciding
whether the alien was removable for voting in violation in
Hawaiian law. See 400 F.3d 684, 686 n.2 (9th Cir. 2005). In
that case, however, the court did not rely on the alien’s credibility, but instead granted the petition because the facts found
by the IJ did not constitute a violation of the relevant law in
8

The government agrees the pre-REAL ID Act standards for credibility
determinations apply in this case.
9
Although Abufayad established the lack of a “general requirement” and
did not apply the rule in that particular case, it left open the possible application of the rule in other categories of cases in which “adjustment to normal evidentiary burdens is . . . warranted” and does not necessarily control
this case. See 632 F.3d at 631.

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any event. See id. at 689-90. Therefore, although the court in
McDonald noted the existence of the principle at issue, it had
no occasion to extend it beyond the eligibility phase, nor did
it purport to do so. See id. at 686 n.2. We are not, therefore,
bound by McDonald’s footnote to conclude that an explicit
adverse credibility determination was required in this case.
See United States v. Joyce, 357 F.3d 921, 924-25 & n.3 (9th
Cir. 2004).
[13] As in Abufayad, we decline to extend “[t]he ‘deemed
true’ convention” to this new context because we see no need
to adjust the normal evidentiary burdens. See 632 F.3d at 631.
Accordingly, we are not required to take petitioner’s testimony as true in the absence of an explicit adverse credibility
determination, because this question does not arise in the context of deciding a petitioner’s eligibility for relief from
removal. See Kalubi, 364 F.3d at 1137; Lopez-Alvarado, 381
F.3d at 851.
C.

Remand for Decision Based on All Evidence Properly
Before the IJ, Including Petitioner’s Testimony

[14] Because the IJ did not understand that he could consider credible testimony by petitioner, he evidently did not,
even implicitly, make a decision regarding petitioner’s credibility. Failure of the IJ and BIA to evaluate the credibility of
a petitioner’s testimony in a case like this is a fundamental
flaw, which deprives a petitioner of his right to have his testimony considered and precludes effective review. Cf. LopezUmanzor, 405 F.3d at 1053-54, 1059 (“Had the IJ believed
Petitioner’s explanation, then she would have met the statutory criteria for relief.”).
[15] If petitioner’s denial is not credible, then circumstantial evidence may establish the requisite “reason to believe”
that he knew he was transporting drugs. See Alarcon-Serrano,
220 F.3d at 1120 (finding substantial evidence of “reason to
believe” based on circumstantial evidence where “[b]oth the

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BIA and the IJ disbelieved [petitioner’s] testimony claiming
lack of knowledge”). Here, however, it appears the IJ did not
evaluate the credibility of petitioner’s denial of knowledge
because the IJ incorrectly concluded that the “reason to
believe” is the officer’s belief at the time the alien is encountered at the port of entry and that petitioner’s later denial of
knowledge was, therefore, irrelevant. The BIA also appears to
have made no credibility determination of its own and may
have instead concluded, erroneously, that the IJ had already
made an implicit adverse credibility determination. In these
circumstances, it is appropriate to remand for further proceedings to evaluate the credibility of petitioner’s testimony that
he did not know he was transporting marijuana, and the effect
of that determination on the question of whether the IJ or BIA
had “reason to believe” in light of all the evidence placed
before the IJ during the course of these proceedings. See
Lopez-Umanzor, 405 F.3d at 1059; Hartooni v. INS, 21 F.3d
336, 343 (9th Cir. 1994) (remanding for a credibility determination where the BIA relied on the IJ’s credibility determination when, in fact, the IJ did not make such a credibility
finding); see also Kho v. Keisler, 505 F.3d 50, 56 (1st Cir.
2007) (“If, in the absence of a credibility finding by the IJ, a
reviewing court determines that such a finding is necessary
for effective review of the case, it may remand to the agency
for further factfinding.”). We remand for such proceedings
and do not decide the substantial evidence question because
it is premature to do so.
PETITION GRANTED; REMANDED with instructions.