Rene Lopez Rodriguez v. Eric H. Holder Jr. ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENE LOPEZ RODRIGUEZ, 
Petitioner,
No. 08-71481
v.
 Agency No.
ERIC H. HOLDER, Jr., Attorney A079-658-197
General,
Respondent.

RENE LOPEZ RODRIGUEZ, 
Petitioner, No. 08-73353
v.
 Agency No.
A079-658-197
ERIC H. HOLDER, Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 17, 2012—San Francisco, California
Filed June 27, 2012
Before: Procter Hug, Jr., Betty B. Fletcher, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
7573
7576 RODRIGUEZ v. HOLDER
COUNSEL
Daniel M. Kowalski, The Fowler Law Firm, PC, Austin,
Texas, for petitioner Rene Lopez-Rodriguez.
Tracey N. McDonald (argued), Gregory G. Katsas, Assistant
Attorney General, Blair T. O’Connor, Assistant Director,
Edward C. Durant, United States Department of Justice,
Washington, D.C., for respondent Eric H. Holder, Jr., Attor-
ney General.
OPINION
PAEZ, Circuit Judge:
The Board of Immigration Appeals’ (BIA or Board) gov-
erning regulations limit its scope of review of an immigration
judge’s (IJ) factual findings. Under 8 C.F.R. § 1003.1(d)(3)(i),
(iv), the BIA may only review findings of fact for clear error,
and is prohibited from making its own factual determinations.
In this petition for review, which arises in the context of alle-
gations of drug smuggling, we consider whether the Board
exceeded these limitations when it reversed the IJ’s determi-
nation that petitioner Rene Lopez-Rodriguez was admissible
and concluded instead that Lopez-Rodriguez was inadmissible
under 8 U.S.C. § 1182(a)(2)(C). Because we conclude that the
Board committed legal error by making its own factual deter-
mination and engaging in de novo review of the IJ’s factual
findings, we grant the petition and remand for further pro-
ceedings.
I.
Rene Lopez-Rodriguez is a native and citizen of Mexico.
In 2006, he was working as a “runner” or supplier for ships
in Puerto Peñasco, Sonora, a fishing and resort town located
RODRIGUEZ v. HOLDER 7577
on the Gulf of California.1 He had been working for the same
employer for two years. His employer would regularly send
him to a particular store in Phoenix, Arizona to pick up vari-
ous parts for ships. According to Lopez-Rodriguez’s testi-
mony, he had been using his employer’s 2000 Dodge Ram
1500 series pickup truck to make these trips for approxi-
mately three months prior to the incident at issue in this case.
On July 22, 2006, Lopez-Rodriguez picked up the Dodge
truck from his employer in the morning, and drove to the bor-
der crossing at Lukeville, Arizona. His destination was Phoe-
nix, where he planned to exchange old ship motor pistons for
new ones and to have the tires on the truck replaced. The
truck’s gas gauge indicated that the gas tank was full when
Lopez-Rodriguez picked up the truck. Lopez-Rodriguez testi-
fied that he did not refill the tank during the approximately
60-mile drive from Puerto Peñasco to the Lukeville port of
entry.
Upon arrival at the port of entry, Lopez-Rodriguez and his
truck were inspected by Customs and Border Protection
(CBP) officers Sergio Ballesteros, Jr. and Ivan Gonzalez.
Lopez-Rodriguez told the officers that he was going to Phoe-
nix to pick up pistons, that the truck belonged to his boss, and
that he had nothing to declare for customs. The officers then
inspected the truck by tapping the gas tank with a brass rod
and found that the tank “tapped abnormally hard,” which is
often a signal that something solid is inside the tank. After
being questioned a second time, Lopez-Rodriguez again
stated that he had no items to declare. At that point, the offi-
cers escorted Lopez-Rodriguez from his truck to a nearby
office, where he was detained while Officer Gonzalez con-
ducted a secondary inspection of the truck. According to the
1
This factual summary is drawn from testimony by Lopez-Rodriguez
and two Customs and Border Protection officers at his inadmissibility
hearings, and from factual findings made by the IJ.
7578 RODRIGUEZ v. HOLDER
officers, Lopez-Rodriguez was “calm” during this entire
period.
Officer Gonzalez drove the Dodge truck from the primary
inspection lanes to the secondary inspection area. He testified
that the gas gauge needle indicated that the tank was full.
After using a fiber optic scope to determine that there were
packages inside the gas tank, Officer Gonzalez put Lopez-
Rodriguez into a detention cell. At that point, Lopez-
Rodriguez asked why he was being detained and Officer Gon-
zalez told him that he had found drugs inside the truck.
Lopez-Rodriguez testified that he was not aware of the pres-
ence of drugs in the truck until that moment, and that he
“couldn’t believe it.” He remained calm and was silent upon
hearing this news, because he “didn’t know what to say” and
“couldn’t think of anything.”
Officer Gonzalez then removed the gas tank from the truck
and removed the sending unit from the tank to gain access to
the tank’s interior, where he found 46 vacuum-sealed pack-
ages of marijuana. They weighed, in total, approximately 46
kilograms or 101 pounds. According to Officer Gonzalez, the
gas tank was “very full” of gas and “fuel was spilling out”
when he removed the sending unit.
At Lopez-Rodriguez’s merits hearing, Officer Gonzalez
testified that, based upon his experience, the truck’s gas tank
had a capacity of approximately 30 gallons. He also testified
that he estimated that the marijuana took up “[p]robably 25
gallons, leaving about 5 gallons of fluid that can be inside the
gas tank with—along with the contraband.” Officer Gonzalez
opined that “[i]f the gas tank was reading properly and if it
was full, by the time he got from [Puerto Peñasco] to
[Lukeville], [the gas gauge] would have read empty,” and
Lopez-Rodriguez “would have had to refuel again.”
Upon further questioning by the IJ, Officer Gonzalez clari-
fied that his statement that there was room for five gallons of
RODRIGUEZ v. HOLDER 7579
fuel in the gas tank was “a rough estimate” and that there
might have been room for between four and six gallons. He
stated that he based the estimate on “how much I have to
syphon out, [and] how long it takes me.” The amount of fuel
in the truck’s gas tank was never actually measured. When the
IJ asked Lopez-Rodriguez to respond to Officer Gonzalez’s
conclusions, Lopez-Rodriguez said, “But, it is the truth. I
didn’t fill up with gas.”
II.
Lopez-Rodriguez was paroled into the United States to face
immigration and criminal charges following his initial deten-
tion at the Lukeville port of entry. However, no criminal
charges were ever filed against Lopez-Rodriguez in connec-
tion with this incident. Subsequently, he was charged with
being ineligible for admission because there was “reason to
believe” that he was or had been an illicit trafficker of a con-
trolled substance, or because he was or had been “a knowing
assister, abettor, conspirator, or colluder with others in the
illicit trafficking [of a] controlled substance” in violation of
INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C).
Lopez-Rodriguez proceeded pro se in his hearings before
the IJ.2 At his second master calendar hearing, Lopez-
2
Lopez-Rodriguez appeared a total of three times before the IJ. His first
master calendar hearing was a group advisement of rights on August 17,
2006. The IJ continued Lopez-Rodriguez’s case after Lopez-Rodriguez
stated that he wanted to seek counsel, although he also said that if his case
were to be postponed then he would waive his right to counsel. His next
appearance before the IJ was at a second master calendar hearing on
August 24, 2006, at which Lopez-Rodriguez testified that he did not know
that there was marijuana in the truck’s gas tank until CBP officers told
him as much at the Lukeville port of entry. The IJ continued the case to
allow the government to call other witnesses and to ask Lopez-Rodriguez
more extensive questions. Lopez-Rodriguez’s final appearance before the
IJ occurred at his removal hearing on September 14, 2006. At the removal
hearing, the IJ heard further testimony from Lopez-Rodriguez and testi-
mony from CBP officers Ballesteros and Gonzalez.
7580 RODRIGUEZ v. HOLDER
Rodriguez admitted the charges against him, but at his
removal hearing he explained that he had done so in order “to
go faster to Mexico” where his children were in school and
needed his salary to pay their educational expenses. At all of
his appearances before the IJ, Lopez-Rodriguez expressed a
desire to have a hearing immediately so that he could return
to Mexico as quickly as possible.
Three witnesses—Lopez-Rodriguez, Officer Ballesteros,
and Officer Gonzalez—testified at the removal hearing, and
the IJ found all three to be credible. In fact, the IJ ended his
oral decision by noting that Lopez-Rodriguez “has maintained
steadfastly that he had no knowledge that there was marijuana
in the vehicle at any time,” and then stated, “I believe him.”
The IJ summarized the case by explaining that it “all comes
down to whether [Lopez-Rodriguez] is stating falsely that he
refueled between Puerto Peñasco and the Port of Entry at
Lukeville, Arizona.” Concluding that “it may very well be
true that the applicant did not put gas in the vehicle prior to
getting to the Port of Inspection in Lukeville,” and that
Lopez-Rodriguez “was used by his employer or by somebody
unbeknownst to his employer” to transport the marijuana, the
IJ found that there was no “reason to believe” that Lopez-
Rodriguez “is an elicit [sic] trafficker in a controlled sub-
stance or knowingly aided, abetted, colluded, et cetera.”
Lopez-Rodriguez was admitted into the United States as a vis-
itor until September 18, 2006, four days after the date of the
hearing and decision. Lopez-Rodriguez remained detained
during the appeals process, however, and was removed to
Mexico at some point following the BIA’s first decision
reversing the IJ.
The government appealed the IJ’s ruling to the BIA, chal-
lenging the IJ’s finding that there was “no reason to believe”
that Lopez-Rodriguez had trafficked in a controlled substance.
The BIA reversed the IJ twice. In its first decision, dated Feb-
ruary 17, 2007, the BIA reversed the IJ because Lopez-
RODRIGUEZ v. HOLDER 7581
Rodriguez’s “credibility is undermined by the fact that such
a large amount of marijuana—over 100 pounds—was found
concealed in the truck and his implausible story that he trav-
eled from Puerto Peñasco to the Arizona border on only 5 gal-
lons of gas and arrived at the port of entry with a full tank.”
Lopez-Rodriguez petitioned for review of that decision with
this court. Subsequently, the government filed a motion to
remand the case to the BIA, explaining that “notwithstanding
its reference to the ‘clear error’ standard, the Board may have
engaged in de novo review of the [IJ]’s fact-findings, some-
thing that 8 C.F.R. § 1003.1(d)(3)(i) prohibits.” We granted
the motion and remanded the case to the BIA.
On remand, the BIA again reversed the IJ in a decision
dated March 17, 2008. In its order, the BIA specifically stated
that it had been directed to re-evaluate its earlier decision
under the clear error standard, and further wrote that it was
“mindful that [it is] not to engage in de novo review of facts
determined by the [IJ].” Noting that the IJ had found Officer
Gonzalez credible and that Officer Gonzalez had “significant
experience inspecting cars at the border,” and asserting that
Lopez-Rodriguez had contradicted himself in his testimony,
the BIA, “upon consideration of the evidence and testimony
of record,” concluded that it was “left with the definite and
firm conviction” that the IJ’s decision to admit him was
“clearly erroneous.” In particular, the Board “f[ou]nd it
impossible to accept the [IJ]’s conclusion that the applicant
testified credibly.”
The BIA explained its decision by discussing in detail Offi-
cer Gonzalez’s testimony, in particular the estimates that Offi-
cer Gonzalez provided of the space available in the gas tank
and the amount of gas removed from the tank during his
inspection of the truck. The BIA also noted that Officer Gon-
zalez had “concluded that [Lopez-Rodriguez] could not have
driven the distance from Puerto Peñasco to the border without
refueling and still have 4 to 6 gallons of gas filling up the
tank.”
7582 RODRIGUEZ v. HOLDER
As to Lopez-Rodriguez’s credibility, the BIA concluded
that the IJ ignored a contradiction in his testimony. According
to the BIA, “the applicant first testified that his employer had
never asked him to drive the employer’s truck into the United
States to pick up supplies before. Yet, he later testified that he
had driven his employer’s truck to the United States very
often, as much as every week, in the 3 months before he was
arrested at the border.”
The BIA also concluded that the IJ erred by finding no
“reason to believe” that Lopez-Rodriguez was an illicit traf-
ficker because the standard for inadmissibility under INA
§ 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C) is “quite low” and is
analogous to the probable cause standard.
Lopez-Rodriguez timely petitioned for review, arguing pri-
marily that the BIA violated 8 C.F.R. § 1003.1(d)(3) by
engaging in prohibited de novo review, and arguing in passing
that the Board improperly equated the regulation’s “reason to
believe” standard to the probable cause standard. Although
we grant the petition, we do not address the latter issue.
III.
Where the BIA conducts its own review of the evidence
and law, rather than adopting the IJ’s decision, our “review ‘is
limited to the BIA’s decision, except to the extent the IJ’s
opinion is expressly adopted.’ ” Hosseini v. Gonzales, 471
F.3d 953, 957 (9th Cir. 2006) (quoting Cordon-Garcia v. INS,
204 F.3d 985, 990 (9th Cir. 2000)).
We have jurisdiction over questions of law pursuant to 8
U.S.C. § 1252(a)(2)(D), and we review de novo the BIA’s
determinations of questions of law and its legal conclusions.
Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010).
Whether the BIA has applied the correct standard of review
is a question of law. Arteaga v. I.N.S., 836 F.2d 1227, 1228
(9th Cir. 1988), abrogated on other grounds by I.N.S. v. Elias-
RODRIGUEZ v. HOLDER 7583
Zacarias, 502 U.S. 478 (1992); see also Afridi v. Gonzales,
442 F.3d 1212, 1218 (9th Cir. 2006) (holding that the court
“can determine whether the BIA applied the correct legal
standard in making its determination”), overruled on other
grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147,
1160 n.15 (9th Cir. 2008) (en banc).
[1] BIA regulations prohibit the Board from “engag[ing] in
de novo review of findings of fact determined by an [IJ].” 8
C.F.R. § 1003.1(d)(3)(i); see also Brezilien v. Holder, 569
F.3d 403, 413 (9th Cir. 2009) (noting that “where the IJ has
made a factual finding, the BIA has very limited authority to
revisit that finding”). Instead, “[f]acts determined by the [IJ],
including findings as to the credibility of testimony, shall be
reviewed only to determine whether the findings of the [IJ]
are clearly erroneous.” § 1003.1(d)(3)(i) (emphasis added).
Where the BIA engages in de novo review of an IJ’s factual
findings instead of limiting its review to clear error, it has
committed an error of law, as our sister circuits have recog-
nized, and we have no difficulty in agreeing with that conclu-
sion. See, e.g., Turkson v. Holder, 667 F.3d 523, 528 (4th Cir.
2012) (holding that “the BIA committed error as a matter of
law because it failed to apply the appropriate standard of
review”); Chen v. Bureau of Citizenship and Immigration
Serv., 470 F.3d 509, 515 (2d Cir. 2006) (holding that the
BIA’s independent credibility assessment amounted to “de
novo review and constitutes legal error by the BIA requiring
remand”). We do not rely on the Board’s invocation of the
clear error standard; rather, when the issue is raised, our task
is to determine whether the BIA faithfully employed the clear
error standard or engaged in improper de novo review of the
IJ’s factual findings.3
3
Several of our sister circuits have remanded cases to the agency where
the BIA, although invoking the “clear error” standard of review, actually
engaged in prohibited de novo review or fact-finding. See, e.g., Alvarado
de Rodriguez v. Holder, 585 F.3d 227, 235 (5th Cir. 2009) (“Quite simply,
the BIA is not entitled to state the correct legal standard but actually apply
7584 RODRIGUEZ v. HOLDER
[2] Where the IJ has not made a finding of fact on a dis-
puted matter, and such a finding is necessary to resolution of
the case, the BIA must remand to the IJ to make the required
finding; it may not conduct its own fact-finding. 8 C.F.R.
§ 1003.1(d)(3)(iv); Brezilien, 569 F.3d at 413 (concluding that
the regulation unambiguously “requires the BIA to remand
the factual inquiry to the IJ rather than making its own factual
finding on the matter”); see also Padmore v. Holder, 609 F.3d
62, 69 (2d Cir. 2010) (“The IJ did not find facts with respect
to this incident. If the BIA continues to believe that factfind-
ing on these issues is necessary for an appropriate exercise of
discretion, it should remand to the IJ for that purpose.”).
Where the BIA fails to follow its own regulations and makes
factual findings, “it commits an error of law, which we have
jurisdiction to correct.” Padmore, 609 F.3d at 67.
IV.
A.
[3] The BIA may find an IJ’s factual finding to be clearly
erroneous if it is “illogical or implausible,” or without “sup-
port in inferences that may be drawn from the facts in the
record.” Anderson v. Bessemer City, 470 U.S. 564, 577
(1985); see also United States v. Hinkson, 585 F.3d 1247,
1262 (9th Cir. 2009) (en banc).4
an incorrect standard.”); Kabba v. Mukasey, 530 F.3d 1239, 1246 (10th
Cir. 2008) (“Although the BIA’s opinion set forth the correct standard of
review and recited a conclusion that the IJ’s credibility findings were
clearly erroneous, the BIA did not apply this deferential standard in sub-
stance.”); Chen, 470 F.3d at 515 (“Although the BIA used the phrase
‘clearly erroneous’ in its opinion, the review it conducted in fact was to
independently assess Chen’s credibility without giving deference to the
findings of the IJ. This is de novo review . . . .”). We apply the same scru-
tiny here to the BIA’s assertions that it reviewed the IJ’s decision for clear
error.
4
We relied heavily on Anderson in our discussion of abuse of discretion
in Hinkson, quoting directly from the opinion in our formulation of this
RODRIGUEZ v. HOLDER 7585
[4] The Supreme Court’s opinion in Anderson is extremely
helpful to our understanding of the limits on the BIA when it
reviews the IJ’s factual findings for clear error. In fact, the
Department of Justice cited Anderson in the explanatory com-
ments that it issued to accompany the new regulations adopt-
ing the clear error standard of review, and concluded that “[a]
factfinding may not be overturned simply because the Board
would have weighed the evidence differently or decided the
facts differently had it been the factfinder.” Board of Immi-
gration Appeals: Procedural Reforms to Improve Case Man-
agement, 67 Fed. Reg. 54,878, 54,889 (Aug. 26, 2002) (citing
Anderson, 470 U.S. at 573).
Anderson provides important guidance on the purpose and
limits of the clear error standard:
Th[e clear error] standard plainly does not entitle a
reviewing court to reverse the finding of the trier of
fact simply because it is convinced that it would
have decided the case differently. The reviewing
court oversteps the bounds of its duty . . . if it under-
takes to duplicate the role of the lower court. . . . If
the district court’s account of the evidence is plausi-
ble in light of the record viewed in its entirety, the
court of appeals may not reverse it even though con-
vinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently. Where
circuit’s abuse of discretion test. 585 F.3d at 1262. Although Hinkson spe-
cifically addressed the abuse of discretion standard, the opinion noted that
the Supreme Court “defined abuse of discretion review of factual findings
in terms of ‘clearly erroneous’ review, holding that ‘[w]hen an appellate
court reviews a district court’s factual findings, the abuse-of-discretion
and clearly erroneous standards are indistinguishable . . . .’ ” Id. at 1259
(quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401 (1990))
(alteration in original). We subsequently quoted Hinkson’s formulation of
the abuse of discretion test as a statement of the standard for clear error
review. Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 660 F.3d 384,
395 (9th Cir. 2011).
7586 RODRIGUEZ v. HOLDER
there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly
erroneous.
470 U.S. at 573-74 (emphasis added); see also Inwood Labs.,
Inc. v. Ives Labs., Inc., 456 U.S. 844, 857-58 (1982) (“An
appellate court cannot substitute its interpretation of the evi-
dence for that of the trial court simply because the reviewing
court ‘might give the facts another construction, resolve the
ambiguities differently, and find a more sinister cast to actions
which the District Court apparently deemed innocent.’ ”
(quoting United States v. Real Estate Boards, 339 U.S. 485,
495 (1950))).
[5] In particular, where credibility determinations are at
issue, Anderson counsels that “even greater deference” must
be afforded to the IJ’s factual findings, “for only the trial
judge can be aware of the variations in demeanor and tone of
voice that bear so heavily on the listener’s understanding of
and belief in what is said.” Id. at 575 (citing Wainwright v.
Witt, 469 U.S. 412 (1985)). Similarly, the Fourth Circuit very
recently noted that “IJs hear witnesses and determine the
credibility of evidence. The BIA reviews a paper record,
devoid of the nuances of weighing evidence first hand. The IJ
is thus in a better position to make factual determinations than
the BIA acting in an appellate capacity.” Turkson, 667 F.3d
at 527.
Of course, as the Anderson Court rightly pointed out,
“[t]his is not to suggest that the trial judge may insulate his
findings from review by denominating them credibility deter-
minations, for factors other than demeanor and inflection go
into the decision whether or not to believe a witness.” 470
U.S. at 575. In certain circumstances, Anderson explains, the
weight of the record may overcome a positive credibility
determination:
Documents or objective evidence may contradict the
witness’ story; or the story itself may be so internally
RODRIGUEZ v. HOLDER 7587
inconsistent or implausible on its face that a reason-
able factfinder would not credit it. Where such fac-
tors are present, the court of appeals may well find
clear error even in a finding purportedly based on a
credibility determination.
Id. (citing United States v. U.S. Gypsum Co., 333 U.S. 364,
396 (1948)). However, the Anderson court concluded by
explaining that
when a trial judge’s finding is based on his decision
to credit the testimony of one of two or more wit-
nesses, each of whom has told a coherent and
facially plausible story that is not contradicted by
extrinsic evidence, that finding, if not internally
inconsistent, can virtually never be clear error.
Id. (emphasis added).
In the context of this case, it would be error for the BIA to
hold that the IJ’s findings of fact and credibility determina-
tions were clearly erroneous if those findings and determina-
tions were not illogical or implausible and had support in
inferences that may be drawn from the record, and if Lopez-
Rodriguez’s testimony is uncontradicted by objective evi-
dence and internally consistent.
B.
The BIA relied on two aspects of the testimony in this case
to vacate the IJ’s decision and to find that certain factual find-
ings were “clearly erroneous”: Officer Gonzalez’s estimates
and opinions regarding the amount of gas in the gas tank, and
a supposed contradiction in Lopez-Rodriguez’s testimony.
The testimony regarding these issues, according to the BIA,
made it “impossible to accept” that Lopez-Rodriguez testified
credibly. However, by characterizing Officer Gonzalez’s esti-
mates and opinions as factual, the BIA engaged in impermis-
7588 RODRIGUEZ v. HOLDER
sible fact-finding. In addition, the BIA engaged in further
fact-finding and in de novo review of the IJ’s factual findings
by concluding that Lopez-Rodriguez contradicted himself.
Finally, the BIA applied de novo review to the IJ’s credibility
determination by independently assessing Lopez-Rodriguez’s
credibility without deference to the IJ’s findings.
Officer Gonzalez’s Testimony
The IJ made certain findings of fact in his oral decision. He
found that both the CBP officers and Lopez-Rodriguez testi-
fied credibly. He also found that Lopez-Rodriguez worked as
a runner for fishing boats, providing supplies as directed by
his employer, and that the truck in question belonged to
Lopez-Rodriguez’s employer. Further, the IJ found that
Lopez-Rodriguez was calm throughout his interactions with
the CBP officers at the port of entry.
The IJ made no factual findings, however, as to the quantity
of gas in the Dodge truck either when Lopez-Rodriguez left
Puerto Peñasco or when he arrived at the Lukeville port of
entry, or as to the amount of gas that the truck used per mile
from Puerto Peñasco to Lukeville on July 22, 2006.5 Further-
more, the IJ made no factual determination of whether Lopez-
Rodriguez refueled during his drive north. Although the IJ did
note that both Officer Gonzalez and Lopez-Rodriguez testi-
5
The IJ noted Officer Gonzalez’s estimates on these factual questions,
but subsequently stated that “there is no statement of expertise in measure-
ment of Officer Gonzalez. And, in questioning by the Court, he acknowl-
edges that there might have been four gallons, maybe five, maybe six. He
is not sure of the exact amount. . . . There was no actual measurement of
the amount of gas that was in there. This was all by basically, for lack of
a better term, eyeballing it.” The IJ further concluded that the govern-
ment’s printout of a Dodge Ram 1500 series pickup truck’s likely fuel
usage from the web site www.fueleconomy.gov “does not answer the ques-
tion of actually how much gas was in the vehicle when the applicant
started from Puerto Peñasco versus how much was in the vehicle when it
was syphoned out and not put into any measurement.”
RODRIGUEZ v. HOLDER 7589
fied that the gas gauge indicated that the tank was full upon
arrival at the Lukeville port of entry, he did not make a spe-
cific finding on the issue.
The BIA may not make its own factual findings to resolve
these issues; if the BIA believes that it cannot decide the case
without resolution of these facts, then it must remand to the
IJ for further factual findings. 8 C.F.R. § 1003.1(d)(3)(iv);
Brezilien, 569 F.3d at 413; Padmore, 609 F.3d at 69. Here,
however, the BIA accepted as true Officer Gonzalez’s esti-
mates and opinions regarding these unresolved factual issues.
The BIA also stated conclusively that the truck’s gas gauge
reflected that the tank was full upon arrival at the Lukeville
port of entry.6 This is fact-finding prohibited by
§ 1003.1(d)(3)(iv).
In its decision the Board cited “Officer Gonzalez’s credible
testimony” as one reason why it is “impossible to accept the
[IJ]’s conclusion that [Lopez-Rodriguez] testified credibly.”
6
There is nothing in the record to establish that the gas gauge accurately
reflected the quantity of gas in the tank. Indeed, Officer Gonzalez quali-
fied his testimony regarding the gas gauge by stating that “If the gas tank
was reading properly and if it was full, by the time [Lopez-Rodriguez] got
from [Puerto Peñasco] to [Lukeville], it would have read empty.” Officer
Gonzalez’s testimony is also somewhat contradictory on the issue of the
gas gauge. The government’s attorney initially asked him if the flotation
device that measures the quantity of gas in the tank was “unobstructed by
these packages [of marijuana],” and Officer Gonzalez responded that “[i]t
was obstructed.” However, shortly thereafter, Officer Gonzalez testified
that “[t]he sending unit was reading correctly.” Leaving Officer Gonza-
lez’s testimony aside, the IJ noted in his oral decision that “[f]requently,
from common experience, when a gas gauge reads full, it reads full for a
while before dropping. And, how much gas may be consumed by the time
that gauge starts dropping, I do not know and I am not going to venture
a guess at.” In its opinion, the Board presumed that the gas gauge was
working properly and accurately reflected the quantity of gas in the tank,
but there is no evidence to support such a conclusion. If this unresolved
factual issue were key to the Board’s review of the IJ’s decision in this
case, it should have remanded to the IJ for further factual findings. 8
C.F.R. § 1003.1(d)(3)(iv).
7590 RODRIGUEZ v. HOLDER
Noting Officer Gonzalez’s “significant experience inspecting
cars at the border,” the BIA listed a number of the estimates
that Gonzalez made about the gas tank and the amount of gas
it contained when Lopez-Rodriguez reached the border, and
mentioned Gonzalez’s opinion that Lopez-Rodriguez “could
not have driven the distance from Puerto Peñasco to the bor-
der without refueling and still have 4 to 6 gallons of gas fill-
ing up the tank.” The BIA does not explain further how
Officer Gonzalez’s testimony undermines the IJ’s finding that
Lopez-Rodriguez testified credibly; we are left to draw our
own conclusions from the Board’s recitation of the officer’s
testimony.
Our review of the BIA’s decision leads us to conclude that
the Board accepted as true Officer Gonzalez’s estimates and
opinions, although the BIA was careful to note that it was
simply quoting from Officer Gonzalez’s testimony (“As Offi-
cer Gonzalez testified,” “He stated,” “he estimated,” and “he
concluded”). If the Board had not accepted these statements
as true, there would be no basis—other than the supposed
contradiction in Lopez-Rodriguez’s testimony, discussed infra
—to reverse the IJ’s credibility determination as “clearly erro-
neous.” That the IJ found Officer Gonzalez to have testified
credibly, however, does not give the Board license to accept
as true Officer Gonzalez’s estimates and opinions about his-
torical factual details when the IJ clearly decided not to make
factual findings regarding these disputed issues. The IJ stated
that he did not “doubt Officer Gonzalez’ [sic] assessment as
being made in good faith,” but stated twice in his oral deci-
sion that whether Lopez-Rodriguez refueled between Puerto
Peñasco and Lukeville was unresolved due to insufficient evi-
dence.7 The IJ concluded that Officer Gonzalez did not lie, but
7
Immediately after citing Officer Gonzalez’s good faith, the IJ noted
that “in fairness, it may very well be true that the applicant did not put gas
in the vehicle prior to getting to the Port of Inspection in Lukeville.” Later
in his oral decision, he concluded that the case “comes down to whether
it was five gallons of gas that were used, thereby necessitating a refilling
of the tank. And, I do not think that there is sufficient evidence to show
that this applicant has lied and refilled the tank prior to getting to the Port
of Inspection in Lukeville.”
RODRIGUEZ v. HOLDER 7591
also concluded that Officer Gonzalez’s estimates alone were
insufficient to resolve the issue of whether or not Lopez-
Rodriguez refueled between Puerto Peñasco and Lukeville.
The BIA may not take it upon itself to resolve the issue. 8
C.F.R. § 1003.1(d)(3)(iv).
[6] By accepting Officer Gonzalez’s estimates and opin-
ions as true, and by stating conclusively that the Dodge
truck’s gas gauge read full at the Lukeville inspection station,
the BIA engaged in impermissible fact-finding in violation of
8 C.F.R. § 1003.1(d)(3)(iv). As noted above, these issues
were left unresolved by the IJ, as was the issue of whether the
gas gauge accurately reflected the true quantity of gas in the
tank. If the BIA wanted specific factual findings on these
issues, then the governing regulations required it to remand
the case to the IJ instead of making its own factual determina-
tions. See Brezilien, 569 F.3d at 413; Padmore, 609 F.3d at
69.
Contradiction in Lopez-Rodriguez’s Testimony
The IJ did not identify any contradictions in Lopez-
Rodriguez’s testimony. The claimed contradiction noted by
the BIA in its decision following remand relates to whether or
not Lopez-Rodriguez had previously driven his employer’s
truck into the United States to pick up boat supplies before his
trip on July 22, 2006, and if so, how often. The IJ found spe-
cifically that Lopez-Rodriguez “has come into the United
States on numerous occasions and is basically directed each
time by his employer to go to a specific place in Phoenix to
pick up supplies for the boat, turn around and come back to
his work in Mexico.” The IJ did not make any findings as to
what specific vehicle or vehicles Lopez-Rodriguez used to
drive to the United States on these trips.
The BIA, without specifically referring to this factual deter-
mination by the IJ or concluding that the IJ’s determination
was illogical, implausible, or without support in the record,
7592 RODRIGUEZ v. HOLDER
found that the IJ “ignored a contradiction” in Lopez-
Rodriguez’s testimony. The Board stated that Lopez-
Rodriguez “first testified that his employer had never asked
him to drive the employer’s truck into the United States to
pick up supplies before. Yet, he later testified that he had
driven his employer’s truck to the United States very often, as
much as every week, in the 3 months before he was arrested
at the border.” Without further explanation, the BIA used this
claimed contradiction as a second basis for finding that the
IJ’s credibility determination was “clearly erroneous.”
The first exchange between the IJ and Lopez-Rodriguez to
which the BIA referred in its decision occurred at Lopez-
Rodriguez’s second master calendar hearing on August 24,
2006, after the government’s attorney had finished asking a
series of questions about the white Dodge Ram pickup truck
that Lopez-Rodriguez was driving on the day in question, and
what Lopez-Rodriguez had planned on doing with it that day:
IJ: How long have you been working for this person
[the employer], sir?
L-R: Two years.
IJ: Did he ever ask you to do this before?
L-R: No.
IJ: Have you ever taken a vehicle into the United
States before?
L-R: How so? I mean, I, I didn’t hear?
IJ: Have you ever taken a vehicle into the United
States before?
L-R: No, just with that and my vehicle, that’s it.
RODRIGUEZ v. HOLDER 7593
The IJ did not find that the above exchange contradicted
Lopez-Rodriguez’s testimony at his removal hearing on Sep-
tember 14, 2006, in which he answered the IJ as follows:
IJ: How long had you worked for him [the
employer]?
L-R: Two years.
IJ: You had gone to Phoenix before?
L-R: Yes.
IJ: Have you driven that truck before?
L-R: I had — I had started driving that truck three
months prior to my being stopped, arrested.
IJ: Ever take it to Phoenix before?
L-R: Yes, I was, I was going very often. Every 15
days, every week, once a month.
IJ: In that truck?
L-R: In that truck.
The BIA found that the second exchange contradicted the
first.
[7] The BIA could not conclude, however, that Lopez-
Rodriguez contradicted himself in these two exchanges with-
out drawing factual inferences from Lopez-Rodriguez’s
answers to the IJ’s questions, and without making findings as
to the vehicle or vehicles that Lopez-Rodriguez regularly used
to drive into the United States for his employer.
7594 RODRIGUEZ v. HOLDER
In the first exchange that the BIA referenced, the IJ asked,
“Have you ever taken a vehicle into the United States
before?,” and Lopez-Rodriguez responded, “No, just with that
and my vehicle, that’s it.” (Emphasis added.) As noted above,
just before this exchange the government’s attorney had asked
Lopez-Rodriguez a series of questions about his employer’s
white Dodge Ram truck. In the second exchange, Lopez-
Rodriguez testified that he had been driving the Dodge truck
to Phoenix for work regularly for approximately three months
prior to July 22, 2006. For the BIA to have found a contradic-
tion in these two exchanges, it would have had to read Lopez-
Rodriguez’s answer, “No, just with that and my vehicle, that’s
it,” to mean that he had only ever driven his own vehicle and
some other vehicle that was not the Dodge truck (“that”) into
the United States.8 However, both the Board’s interpretation
of what Lopez-Rodriguez meant when he said “No, just with
that and my vehicle, that’s it,” and its conclusion regarding
the vehicle or vehicles Lopez-Rodriguez regularly drove into
the United States for his employer, required the Board to
make prohibited findings of fact. If this factual determination
was essential to the Board’s review of the IJ’s decision, it
should have remanded to the IJ for additional factual findings.
See 8 C.F.R. § 1003.1(d)(3)(iv); Padmore, 609 F.3d at 69;
Brezilien, 569 F.3d at 413.
[8] That the Board engaged in de novo review of the IJ’s
factual findings is evident in its selective review of Lopez-
Rodriguez’s testimony. Specifically, the BIA ignored a third
exchange that explained Lopez-Rodriguez’s other responses
to the IJ and supported his testimony that he had driven the
Dodge truck to the United States for work previously.
8
This interpretation seems to ignore both the context of the exchange
between the IJ and Lopez-Rodriguez and the normal vagaries of human
speech, especially when that speech is translated into English. Prior to this
exchange, the government’s attorney had just asked Lopez-Rodriguez
about the Dodge Ram truck. The most logical interpretation of “just with
that and my vehicle” is that “that” referred to the Dodge truck, given that
Lopez-Rodriguez had just been discussing it.
RODRIGUEZ v. HOLDER 7595
Towards the end of the second master calendar hearing, the
IJ and Lopez-Rodriguez engaged in the following exchange:
IJ: You’ve never done this [drug smuggling] before?
L-R: No.
IJ: When did you get your border crossing card?
What year?
L-R: I don’t recall exactly what year.
IJ: Approximately? How long have you had it?
L-R: Since six year [sic], seven years.
IJ: You never had a problem before?
L-R: No.
IJ: And, do you come into the United States?
L-R: Well, I would just go on business, that’s it.
IJ: And, what business is that?
L-R: Shipping business. It would be every 15 days,
you know, every month or every, every week.
IJ: For this boss also?
L-R: Yes.
IJ: Were you driving other vehicles for this boss into
the United States?
L-R: No, that was the only one. Sometimes I would
go in my vehicle.
7596 RODRIGUEZ v. HOLDER
(Emphases added). Although Lopez-Rodriguez does not men-
tion the length of time that he had been using the Dodge Ram
truck to run errands for his boss, this exchange undermines
the BIA’s assertion that Lopez-Rodriguez contradicted him-
self in his testimony. As the Tenth Circuit concluded in
Kabba, “when rejecting the IJ’s credibility findings under a
review purportedly targeted only at clear error, the BIA can-
not selectively examine some evidence while ignoring other
evidence presented to it.” 530 F.3d at 1247. In so doing, the
BIA substituted its own reading of the evidence for that of the
IJ without applying the deference required by the clear error
standard of review. That is an error of law under the BIA’s
own regulations. 8 C.F.R. § 1003.1(d)(3)(i).
Credibility Determination
[9] Finally, the BIA found the IJ’s decision to be “clearly
erroneous” on the basis of its own determination of Lopez-
Rodriguez’s credibility. As the Supreme Court noted in
Anderson, a credibility determination is based, at least in part,
on “variations in demeanor and tone of voice” that only the
factfinder witnesses. 470 U.S. at 575. Although an appellate
court or other reviewing body may find clear error in a fact-
finder’s credibility determination if a witness’s story is con-
tradicted by the evidence or is internally inconsistent or
implausible, a factfinder may nevertheless credit one wit-
ness’s testimony over another’s if both have related coherent
and facially plausible stories that are not contradicted by
extrinsic evidence. See id. Such a decision “can virtually
never be clear error.” Id.
[10] Here, both Lopez-Rodriguez and Officer Gonzalez
told coherent and facially plausible stories. The IJ believed
both and concluded that there was not enough evidence to
show that Lopez-Rodriguez was lying. Although the IJ found
that both Officer Gonzalez and Lopez-Rodriguez testified
credibly, the BIA decided instead, on the basis of the paper
record, that only the testimony of Officer Gonzalez was truth-
RODRIGUEZ v. HOLDER 7597
ful. The BIA has not identified sufficient evidence, however,
to show that the IJ’s credibility determination with respect to
Lopez-Rodriguez was “clearly erroneous” under the deferen-
tial clear error standard of review. Instead, it relied upon its
own factual findings and de novo review of the evidence. The
BIA’s independent credibility determination, therefore, con-
stitutes improper de novo review. See Anderson, 470 U.S. at
575; Hinkson, 585 F.3d at 1262.
Conclusion
Although the BIA invoked the clear error standard, it failed
to apply this deferential standard of review. This is an error
of law that requires that we grant Lopez-Rodriguez’s petition
and remand the case to the agency. 8 C.F.R. § 1003.1(d)(3)(i);
Brezilien, 569 F.3d at 413; see also Kabba, 530 F.3d at 1245-
46; Chen, 470 F.3d at 515.
The BIA made its own findings as to the accuracy of the
historical facts discussed in Officer Gonzalez’s testimony and
the supposed contradiction in Lopez-Rodriguez’s testimony.
The Board further engaged in prohibited de novo review in
finding a contradiction in Lopez-Rodriguez’s testimony and
in making its own finding regarding Lopez-Rodriguez’s credi-
bility. Both are disallowed by the agency’s own regulations.
8 C.F.R. § 1003.1(d)(3)(i), (iv).
V.
This case clearly lacks a robust factual basis on which to
determine whether Lopez-Rodriguez drove to the border
knowing that there were drugs in his employer’s truck’s gas
tank. It is not up to the BIA, however, to create one on its
own. The BIA improperly found facts and applied de novo
review to the IJ’s decision, and we therefore remand this case
to the agency so that the BIA may apply the correct “clear
error” standard of review. If the BIA concludes that it cannot
properly review the IJ’s decision without further factual
7598 RODRIGUEZ v. HOLDER
development of the record, then the Board must remand the
case to the IJ so that he may make the requisite factual find-
ings.
Because we conclude that the BIA erred in its application
of the clear error standard of review and erred by making fac-
tual findings, and remand on that basis, we need not resolve
whether a “reason to believe” under INA § 212(a)(2)(C), 8
U.S.C. § 1182(a)(2)(C) is the equivalent of the probable cause
standard under the Fourth Amendment.
GRANTED AND REMANDED.