Hugo Gutierrez-Sanchez v. Eric Holder, Jr. ( 2012 )

FILED
NOT FOR PUBLICATION AUG 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUGO GUTIERREZ-SANCHEZ, No. 11-70322
Petitioner, Agency No. A089-522-112
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 12, 2012
Seattle, Washington
Before: SCHROEDER, REINHARDT, and M. SMITH, Circuit Judges.
Hugo Gutierrez-Sanchez petitions for review of a decision of the Board of
Immigration Appeals (BIA), affirming the Immigration Judge’s (IJ) determination
that he is inadmissible based on sufficient “reason to believe” that he was involved
in illicit trafficking of marijuana. Because the parties are familiar with the factual
and procedural history of this case, we repeat only those facts necessary to resolve
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the issues raised on appeal. We have jurisdiction pursuant to 8 U.S.C. § 1252, and
we deny the petition for review.
The BIA did not err in holding that Gutierrez-Sanchez is inadmissible
because there is “reason to believe” that he “has been an illicit trafficker in [a]
controlled substance.” 8 U.S.C. § 1182(a)(2)(C)(i). We inquire “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.” Gomez-Granillo v. Holder, 654 F.3d 826, 836 (9th
Cir. 2011). The BIA’s determination must be upheld unless “the evidence compels
a contrary conclusion.” Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir.
2000). The IJ and BIA relied on substantial evidence in the record including
Gutierrez-Sanchez’s confession that he was involved in the marijuana grow
operation and that the scale, dried prepackaged marijuana, and marijuana seeds
found in his room belonged to him, and on the testimony of Detective Stedman,
who interviewed Gutierrez-Sanchez after the raid. Gutierrez-Sanchez’s opposing
testimony at his immigration hearing regarding why he confessed and who was in
the charge of the grow operation does not “compel a contrary conclusion.” Id.We also reject Gutierrez-Sanchez’s contention that the IJ failed to evaluate
his credibility. While in the relief from removal context, “adverse credibility
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findings in the eligibility phase must be express and the IJ must offer a specific,
cogent reason for any stated disbelief,” Kalubi v. Ashcroft, 364 F.3d 1134, 1137
(9th Cir. 2004) (quotation omitted), this has not been generally extended outside of
that context. Abufayad v. Holder, 632 F.3d 623, 631 (9th Cir. 2011);
Gomez-Granillo, 654 F.3d at 837. Moreover, the IJ considered Gutierrez-
Sanchez’s testimony, along with the other evidence and testimony, and came to the
ultimate conclusion that “[u]nder these circumstances, [Gutierrez-Sanchez]’s claim
of innocence along with the claims made by his mother and sister in their
testimony are incredible and unpersuasive.” The BIA properly found that this
adverse credibility finding was not erroneous.
PETITION DENIED.
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