On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A091-815-131
The opinion of the court was delivered by: Mark L. Wolf, District Judge:
Argued and Submitted February 11, 2011-Pasadena, California
Before: A. Wallace Tashima and Raymond C. Fisher, Circuit Judges, and Mark L. Wolf, District Judge.*fn1
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- 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.*fn2
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 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 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 ...