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U.S.

Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - HAR


P. 0. Box 230217
Hartford,CT 06123-0217

Name: ESPINOZA LEON, DARIO ENRIQ ...

A 060-814-718

Date of this notice: 8/17/2016

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

bonrtL.

{!a/Vu

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer. Anne J.

Userteam: Docket

For more unpublished BIA decisions, visit


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Cite as: Dario Enrique Espinoza Leon, A060 814 718 (BIA Aug. 17, 2016)

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DeLuca,Crescenzo
Law Offices Crescenzo Deluca
81 Wolcott Hill Road
Wethersfield,CT 06109

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A060 814 718 - Hartford, CT

Date:

AUG 1 7 2016

In re: DARIO ENRIQUE ESPINOZA LEON

APPEAL
ON BEHALF OF RESPONDENT: Crescenzo DeLuca, Esquire
ON BEHALF OF DHS: Courtney Gates-Graceson
Assistant Chief Counsel
CHARGE:
Notice: Sec.

212(a)(2)(C), I&N Act [8 U.S.C. l 182(a)(2)(C)] Controlled substance trafficker

APPLICATION: Termination
The respondent, a native and citizen of Peru, appeals the Immigration Judge's June 3, 2015,
decision finding the respondent removable as charged, denying his motion to terminate
proceedings, and ordering him removed from the United States. The record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including credibility
determinations and the likelihood of future events, under a "clearly erroneous" standard.
8 C.F.R. 1003. l(d)(3)(i); Matter ofZ-Z-0-, 26 l&N Dec. 586 (BIA 2015). We review all other
issues, including questions of law, judgment, or discretion, under a de novo standard. 8 C.F.R.
I 003.l(d)(3)(ii).
We find that the record before us is inadequate for appellate review, and we will remand the
matter to the Immigration Judge to permit the parties to further develop the record. In his written
decision denying the respondent's motion to terminate proceedings, the Immigration Judge found
that the Department of Homeland Security ("DHS") had met its burden to demonstrate "reason to
believe" that the respondent engaged in or knowingly aided and abetted controlled substance
trafficking (I.J. at 2). According to a Form I-213 ("Record of Deportable/Inadmissible Alien")
filed by the DHS, the respondent was apprehended at JFK Airport while allegedly transporting
luggage containing a large amount of cocaine and counterfeit cash. The respondent was paroled
into the United States for prosecution, indicted, and acquitted in federal district court of three
charges, while the fourth charge was dropped.
We acknowledge that the "reason to believe" standard is less stringent than the "beyond a
reasonable doubt" standard required for a criminal conviction, and that inadmissibility under
section 212(a)(2)(C) of the Act need not be premised on a conviction (I.J. at 2). We also
acknowledge that, absent evidence that a Form 1-213 contains information that is inaccurate or
was obtained by coercion or duress, that document is inherently trustworthy and admissible as
Cite as: Dario Enrique Espinoza Leon, A060 814 718 (BIA Aug. 17, 2016)

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IN REMOVAL PROCEEDINGS

A060 814 718

ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with this order and for the entry of a new decision.

',
FOR THEBO

2
Cite as: Dario Enrique Espinoza Leon, A060 814 718 (BIA Aug. 17, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

evidence to prove alienage or deportability (I.J. at 3). However, in the circumstances of this
case, we find that the respondent's acquittal on federal criminal charges is relevant to the
accuracy of the information in the Form 1-213 that the Immigration Judge and the parties should
endeavor to resolve. We note that, prior to the final hearing, the government attorney indicated
that she intended to submit into evidence all the documents from the respondent's criminal trial
and documents related to the events at the airport, but then at the respondent's final hearing she
declined to do so, instead resting solely on the Form 1-213 (Tr. at 14-16, 18-19). Therefore, we
will remand the matter to the Immigration Judge for further development of the record and the
entry of a new decision.

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW


UNITED S TATES IMMIGRATION COURT
HARTFORD, CONNECTICUT
IN THE MATTER OF:

) IN REMOVAL PROCEEDINGS
)
)
_RE_SP
_ _ O_ND
_ E
_ N
_ T
_ ________ )
ESPINOZA LEON, Dario Enrique
A060-814-718

CHARGES:

INA 2 l2(a)(2)(C)(i), as amended: alien who 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 21 U.S.C.
802), or is or has been a knowing aider, abettor, assister, conspirator,
or colluder with others in the illicit trafficking in any controlled or
listed substance or chemical, or endeavored to do so.

APPLICATIONS:

Motion to Terminate
ON BEHALF OF DBS
Courtney Gates-Graceson, Esq.
Office of the Chief Counsel
450 Main Street, Room 483
Hartford, Connecticut 06103

ON BEHALF OF RESPONDENT
Crescenzo DeLuca, Esq.
Law Offices of Crescenzo DeLuca
81 Wolcott Hill Road
Wethersfield, Connecticut 06109

DECISION AND ORDER OF THE IMMIGRATION JUDGE


I.

PROCEDURAL AND FACTUAL HIS TORY

Dario Enrique Espinoza Leon (Respondent) is a native and citizen of Peru and a lawful
permanent resident of the United States who last sought admission to the United States in lawful
permanent resident status on or about September 7, 2012, at John F. Kennedy International
Airp ort in Jamaica, New York. Respondent was arrested at the airport and paroled for
prosecution after an enforcement examination revealed he was carrying $299,300 in counterfeit
$100 bills and 12.3 pounds of cocaine, concealed inside various articles and packed in two duffle
bags. Respondent was indicted on federal charges, and on March 14, 2013, in the United States
District Court for the Eastern District of New York, he was found not guilty on three of the four
charges lodged against him; the fourth charge was dismissed.
On May 15, 2013, the Department of Homeland Security (DHS) personally served
Respondent with a Notice to Appear (NTA) charging him as removable pursuant to INA
212(a)(2)(C)(i). On April 29, 2014, Respondent, by and through counsel, entered written
pleadings in which he conceded proper service of the NTA; admitted he is a native and citizen of
Peru and a lawful permanent resident of the United States who on or about September 7, 2012
applied for admission into the United States at New York's John F. Kennedy International
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II.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Respondent is properly identified as an arriving alien as defined in INA 10l(a)(13), and


is inadmissible pursuant to INA 212(a)(2)(C)(i). INA 101(a)( l 3)(C) provides that a lawful
permanent resident alien "shall not be regarded as seeking an admission into the United States
for purposes of the immigration laws" unless one of six enumerated exceptions apply. One of
those exceptions, INA 10l(a){l3)(C)(v), includes instances in which the alien "has committed
an offense identified in section 212(a)(2)." Section 212(a)(2)(C)(i), for its part, renders
inadmissible "[a]ny alien who the consular officer or the Attorney General knows or has reason
to believe--(i) 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." INA 212(a)(2)(C)(i). The INA burdens
OHS with establishing by clear and convincing evidence that a lawful permanent resident alien is
seeking admission. Matter ofRivens, 25 I&N Dec. 623, 625 (BIA 2011) ("[W]e find no reason to
depart from our longstanding case law holding that the DHS bears the burden of proving by clear
and convincing evidence that a returning lawful permanent resident is to be regarded as seeking
an admission.
").DHS has met its burden in this matter.
An alien is inadmissible if a "consular officer or the Attorney General knows or has
reason to believe" the alien "is or has been an illicit trafficker in a controlled substance" or has
knowingly aided or abetted such trafficking. INA 212(a)(2)(C)(i). A reason to believe need not
be premised on a conviction. See Matter of Rico, 16 I&N Dec. 181, 185-86 (BIA 1977)
(concluding that although alien was never convicted, he was properly excluded after being
caught with truckload of marijuana); see also Cuevas v. Holder, 737 F.3d 972, 975 (5th Cir.
2013) ("We have no difficulty in joining other circuits that have held that a conviction is not
required to meet this standard."); Garces v. United States Atty. Gen., 611 F.3d 1337, 1345 (11th
Cir.2010) ("A 'reason to believe' determination can be made even if the alien was never
convicted of any offense."); Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1053 (9th Cir. 2005)
("Section 1182(a)(2)(C) does not require a conviction...."). Indeed, as the Fifth Circuit
observed in Cuevas, the phrase '"reason to believe "' necessarily evokes a lower standard than
the "'beyond a reasonable doubt "' standard required to obtain a criminal conviction." Cuevas v.
Holder, 737 F.3d at 975; see also Garces, 611 F.3d at 1347 ("[T]he 'reasonable, substantial, and
probative evidence' needed to support a determination of removability is considerably less than
the proof beyond a reasonable doubt that would be required for a criminal conviction.").
Although conviction is not required to establish inadmissibility under INA
212(a)(2)(C){i), DHS must present sufficient evidence to support a reason to believe that the
alien was engaged in, or knowingly aided or abetted, controlled substance trafficking. The Board

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Airport; denied that during an airport enforcement examination on that date, authorities seized
$299,300 in counterfeit $100 bills and 12.3 pounds of cocaine from two duffel bags he presented
for inspection; denied he informed authorities he was not carrying more than $10,000 in United
States currency; denied the charge of removability; and named Peru as the country to which his
removal should be directed if so ordered. Respondent requested relief in the form of termination
of proceedings.He declined to testify.

Under Board precedent, "reasonable, substantial, and probative evidence" suffices to


provide the Attorney General a reason to believe an alien was involved in illicit trafficking.
Matter of Rico, 16 l&N Dec. at 184. In Rico, the alien was the subject of a criminal complaint
filed in the United States District Court for the District of Arizona alleging that he imported 162
pounds of marijuana into the United States. Id. at 183. The indictment was dismissed shortly
after it was filed, for reasons not reflected in the Immigration Court record. Id. Based in part on
the testimony of special agents of the Drug Enforcement Administration present during the
alien's interrogation, the Court found Respondent's testimony incredible and determined he was
excludable as an alien "who the consular officer or immigration officers know or have reason to
believe is or has been an illicit trafficker." Id. at 184. Similarly, the United States Court of
Appeals for the Second Circuit has held in several unpublished decisions that the Attorney
General's reason to believe that an alien was involved in illicit trafficking must be supported by
"substantial" evidence. See e.g., Gallego v. Holder, 516 Fed. App'x 8 1, 83 (2d Cir. 2013)
(factual observations contained in uncertified police report, coupled with corroborating evidence
reports, constituted substantial evidence that alien was illicit trafficker); Nguyen v. Holder, 336
Fed. App'x 43, 46 (2d Cir. 2009) (proof of alien's arrest and indictment for crossing border with
suitcase of heroin rendered him excludable, notwithstanding his acquittal in criminal court).
Here, a detailed Form I-213 Record of Deportable/Inadmissible Alien prepared on
September 7, 2012 reveals that Respondent, the subject of a narcotics alert, was stopped at the
John F. Kennedy International Airport and subject to an enforcement examination, during which
he presented two duffle bags for inspection. Upon examination of the duffle bags, counterfeit
$ 100 bills were discovered concealed in various items, including wallets, placemats, and
slippers. The examiner also thought that various facial cream jars and lotion bottles contained in
Respondent's belongings were abnormally heavy; upon investigation, the examiner discovered
bags of a white powdery substance that field tested as cocaine. The examiner turned over to the
United States Secret Service 299,300 counterfeit $100 bills and related evidence; to Homeland
Security Investigations, the examiner turned over 12.3 pounds of cocaine and related evidence.
The BIA has consistently held that absent any evidence that a Form 1-2 13 contains
information that is inaccurate or obtained by coercion or duress, that document, although
hearsay, is inherently trustworthy and admissible as evidence to prove alienage or deportability.
See Matter of Gomez-Gomez, 23 l&N Dec. 522 (BIA 2002); Matter of Ponce-Hernandez, 22
I&N Dec. 784 (BIA 1999); Matter of Barcenas, 19 I&N Dec. 609, 6 1 1 (BIA 1988). The Court
has no reason to doubt the veracity of the I-2 13 contained in the record. The Form bears several
indicia of reliability: it is detailed, includes the source of the information contained therein, and
3

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of Immigration Appeals (BIA) holds that the quantum of evidence necessary to support a
"reasonable ground to believe" is "akin" to that required to support probable cause. See Matter of
A-H-, 23 I&N Dec. 774 (A.G. 2005) (analyzing "reasonable ground for regarding" standard
found at INA 208(b)(2)(A)(iv) and concluding "[t]he statutory reference to 'reasonable'
grounds implies the use of a reasonable person standard" consistent with "probable cause");
Matter of U-H-, 23 I&N Dec. 355, 356 (BIA 2002) (relying on Adams v. Baker, 909 F.2d 643,
649 ( 1st Cir. 1990), in which court determined a reasonable belief may be formed if evidence "is
sufficient to justify a reasonable person in the belief that the alien falls within the proscribed
category.") (internal quotations omitted.)

describes the circumstances of Respondent's apprehension. See Gomez-Gomez, 23 I&N Dec. at


526. Moreover, Respondent declined to testify and offered no other evidence to impugn the
Form's contents. The Court thus credits the information contained in the I-2 1 3 .

In conclusion, the evidence presented in this matter set forth sufficient facts on which to
find that Respondent was a knowing participant in illicit trafficking when he last attempted to
enter the United States. Accordingly, Respondent is properly charged as an arriving alien and is
inadmissible under INA 2 l 2(a)(2)(C)(i).
III.

ORDERS

Based on the foregoing, the following orders are entered:


IT IS HEREBY ORDERED that Respondent' s motion to terminate removal proceedings in
DENIED;
IT IS FURTHER ORDERED that Respondent be removed to the PERU.

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The I-2 1 3 thus provides substantial evidence, satisfying the "reason t o believe" standard,
that Respondent was knowingly involved in trafficking. To establish that Respondent's
participation in trafficking was knowing, DHS need only prove Respondent knew or had reason
to know he was carrying a controlled substance. See Nguyen v. Holder, 336 Fed. App'x at 46
(government need not prove specific intent to traffick). Respondent was apprehended with 1 2.3
pounds of cocaine, an amount consistent with trafficking; the cocaine was found in two duffle
bags Respondent presented to authorities as his own; the duffle bags were evidently within
Respondent's possession and control; and the cocaine was carefully concealed within cosmetic
containers. These facts support the conclusion Respondent knew or should have known he was
carrying a large quantity of controlled substance, and thus that he was knowingly involved in
illicit trafficking. Cf Alarcon-Serrano, 220 F.3d I 1 1 6, 1 1 1 9 (9th Cir. 2000) (concluding it was
reasonable to believe alien knew he was participating in drug trafficking when he attempted to
cross the border in a car - with eighty-six pounds of marijuana in a concealed compartment given to him by a man he knew to be a drug smuggler); . Further, during ''routine questioning"
performed before the cocaine and counterfeit bills were discovered in Respondent's possessions,
Respondent behaved in a manner that suggests he was aware he was engaged in unlawful
activity: he "began to avoid eye contact and seemed visibly nervous."

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