                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       AUG 11 2020
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

OREAN OSHANE CARR,                              No.   17-71352

                Petitioner,                     Agency No. A087-757-239

 v.
                                                MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted July 16, 2020
                           San Francisco, California

Before: IKUTA and HURWITZ, Circuit Judges, and TAGLE,** District Judge.
Dissent by Judge TAGLE

      Orean Oshane Carr, a native and citizen of Jamaica, petitions for review of a

decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from

an order of an Immigration Judge (“IJ”) denying his applications for adjustment of

status, cancellation of removal, and voluntary departure. We deny the petition in


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Hilda G. Tagle, United States District Judge for the
Southern District of Texas, sitting by designation.
part and dismiss it in part.

      1.      Substantial evidence supports the agency’s determination that Carr is

inadmissible, and therefore ineligible for adjustment of status, 8 U.S.C. § 1255(a),

because there is “reason to believe” that he was “a knowing aider [or] abetter . . . in

the illicit trafficking in [a] controlled or listed substance.”             8 U.S.C.

§ 1182(a)(2)(C)(i); see Gomez-Granillo v. Holder, 654 F.3d 826, 831 (9th Cir.

2011).1 Officer Frank Steven Moreno, a veteran police officer with 13 years of

experience in narcotics enforcement, testified that he was undercover on an unrelated

case at a shipping facility when Carr entered with a package, nervously “looking in

all directions.” Carr made eye contact with Officer Moreno, set the package on the

ground, and walked to the exit. Officer Moreno approached Carr at the door,

identified himself as a police officer, and stated that he suspected the package

contained contraband. Carr replied that the box was not his and consented to a



1
       The Immigration and Nationality Act does not define “reason to believe” in
this context, but we have likened similar language in the Act to probable cause. See,
e.g., Go v. Holder, 640 F.3d 1047, 1052 (9th Cir. 2011); Abufayad v. Holder, 632
F.3d 623, 630 (9th Cir. 2011). We “examine the reasoning and findings of both the
BIA and IJ,” and ask “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,” including “other
information not necessarily known” at the time of the precipitating incident. Gomez-
Granillo, 654 F.3d at 836; see also Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1207-
08, 1211 (9th Cir. 2004) (reviewing information available to IJ when the government
charged petitioner as removable).


                                          2
search, but then fled. After Carr was stopped, a drug-sniffing dog alerted to the

package and a search warrant was obtained. Officer Moreno opined that the package

contained about ten pounds of marijuana.2 Carr’s apparent nervousness, flight, and

the quantity of marijuana seized reasonably support an inference that Carr knew

what the package contained.

      2.     Although Carr testified that he agreed to ship the package for a friend

and did not know it contained drugs, substantial evidence supports the IJ’s adverse

credibility determination. See Gomez-Granillo, 654 F.3d at 838 (“If petitioner’s

denial is not credible, then circumstantial evidence may establish the requisite

‘reason to believe’ that he knew he was transporting drugs.”). Carr testified that he

fled because he was scared and did not know that Moreno and a colleague who

approached him were police officers. However, the IJ reasonably found that account

“implausible” and credited Officer Moreno’s testimony that he not only identified

himself to Carr but “always” identifies himself. “While a generous fact-finder might

have believed [Carr’s] version of the facts, both the BIA and IJ were clearly within

reason on these facts and circumstances to conclude otherwise.” Alarcon-Serrano

v. INS, 220 F.3d 1116, 1120 (9th Cir. 2000).3


2
      The seized substance was never tested and the criminal charges against Carr
were dismissed a week later; the record does not indicate the reason for the dismissal.
3
       Even assuming the credibility of Carr’s wife, her testimony does not compel
a contrary conclusion. Although she testified that she saw no evidence that Carr was

                                          3
      3.      “We lack jurisdiction to review the BIA’s discretionary determination

that [Carr] failed to satisfy the ‘exceptional and extremely unusual hardship’

requirement for cancellation of removal.” Romero-Torres v. Ashcroft, 327 F.3d 887,

892 (9th Cir. 2003); see 8 U.S.C. § 1252(a)(2)(B)(i).

      4.     We also lack jurisdiction to review the discretionary denial of voluntary

departure because Carr has not raised a colorable constitutional claim or question of

law. See Corro-Barragan v. Holder, 718 F.3d 1174, 1177 (9th Cir. 2013). Carr’s

argument that the BIA failed to consider factors in his favor is belied by the record;

the BIA recognized that Carr has lived in the United States for many years, cares for

his children and citizen wife, and is respected in the community.

    PETITION FOR REVIEW DENIED IN PART and DISMISSED IN
PART.




involved in drug trafficking, she did not live with Carr at the time of the incident at
issue. And, although she testified that Carr did not use drugs, he admitted to daily
use of marijuana from 2010 to 2013.

                                          4
                                                                       FILED
Orean Carr v. William Barr, No. 17-71352
                                                                       AUG 11 2020
TAGLE, District Judge, dissenting:                                  MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS

      While I agree with many of the majority’s conclusions in this case, I believe

the majority errs in its determination that substantial evidence supports the Board’s

drug trafficking conclusion and I must dissent.

      Under 8 U.S.C. § 1182(a)(2)(C)(i) a person is ineligible for adjustment of

status when there is “reason to believe” that he was “a knowing aider [or] abetter…

in the illicit trafficking in [a] controlled or listed substance.” As the majority

correctly notes, in other contexts a “reason to believe” has been equated with the

criminal probable cause standard. See supra pg 2 n.1. Probable cause requires

“knowledge or reasonably trustworthy information sufficient to lead a person of

reasonable caution to believe that an offense has been or is being committed.” Rodis

v. City, Cty. of San Francisco, 558 F.3d 964, 969 (9th Cir. 2009). This record lacks

sufficient reasonably trustworthy information for the conclusion that Carr was a

knowing aider of illicit drug traffickers.

      There is not substantial evidence to discredit Carr’s testimony. According to

the majority, Carr testified the police officers did not identify themselves which was

inconsistent with Moreno’s testimony. Supra at 3. Yet, the record demonstrates

Carr’s testimony about whether the police officers identified themselves and showed

a badge when approaching Carr was “I don’t remember” and “I don’t remember


                                             1
seeing it.” Carr testified he ran because “…it was a plainclothes, and I didn’t know

what was going on.” A lack of recollection is not an inconsistency on which a person

could be impeached or found not credible.

      Even if an inconsistency exists on which to find Carr’s testimony not credible,

discrediting Carr’s testimony does not establish that Carr knew there was marijuana

inside the box. There still must be substantial evidence of Carr’s knowledge on

which to base the knowing drug trafficking inadmissibility bar.

      To support the position that Carr knew what was in the box, the majority relies

on “Carr’s apparent nervousness, flight, and the quantity of marijuana seized…”

Supra at 3.

      The box containing the suspected marijuana was closed when Carr brought it

to the shipping facility. The quantity of marijuana found was approximately ten

pounds. A closed box weighing ten pounds is not probative of Carr’s knowledge.

      The flight of an undocumented person of color from police also gives no

support to the conclusion that Carr knew what was in the box. Nervousness and flight

from police are not necessarily indicative of ongoing criminal activity. See Illinois

v. Wardlow, 528 U.S. 119, 125 (2000). “The Court has a long history of recognizing

that innocent people may reasonably flee from the police.” United States v. Brown,

925 F.3d 1150, 1155 (9th Cir. 2019). Justice Steven’s statement in Wardlow is worth

repeating: “Among some citizens, particularly minorities and those residing in high


                                         2
crime areas, there is also the possibility that the fleeing person is entirely innocent,

but, with or without justification, believes that contact with the police can itself be

dangerous, apart from any criminal activity associated with the officer's sudden

presence.” Wardlow, 528 U.S. at 132 (Stevens, J. concurring in part).

      Probable cause depends on the totality of the circumstances. Rodis, 558 F.3d

at 969. Carr did not bolt at a border crossing. See United States v. Garcia, 516 F.2d

318 (9th Cir. 1975). Carr ran after being approached by a plain-clothed police officer

who showed a badge under his polo t-shirt at a shipping store in Tucson. Basing

probable cause solely on nervousness and flight punishes people who fear police and

lowers the already minimal evidentiary standard.

      There was no evidence that Carr received the package from a known drug

trafficker; that Carr was shipping the package to a suspected trafficker; that he

received unusually large compensation for shipping the box; or any other

circumstantial evidence which points towards Carr’s knowledge of the contents of

the box before arriving at the shipping facility.

      Moreno’s testimony does not support the conclusion that Carr knew what was

in the box. Moreno offered no specific evidence on which to base the conclusion that

Carr knew what was inside the package. There was no evidence of any prior direct

or indirect contact between Moreno and Carr. Carr did not match a suspected courier

profile or other identification. Moreno himself testified he was not sure Carr knew


                                           3
what was inside the package. Moreno formed a hunch based on his opinion that Carr

looked nervous. A hunch does not equal probable cause.

      The facts that the arresting officer is unsure of an essential element of

knowledge and that the prosecutor declined to pursue charges lend credence to the

conclusion that substantial evidence of probable cause was not present. Given the

immediate parties’ doubts, a reviewing judicial body so far removed from the events

in question should thoroughly examine all direct and circumstantial evidence in the

record for substantial evidence of probable cause for imposing the knowing drug-

trafficking bar.

      When similarly faced with an absence of substantial facts to establish a drug

trafficking bar other circuits have reversed. See Garces v. Att'y Gen., 611 F.3d 1337,

1350 (11th Cir. 2010); Igwebuike v. Caterisano, 230 F. App'x 278, 283 (4th Cir.

2007). Instead, the majority’s affirmance presumptively punishes a person who flees

from police. Such a presumption does not achieve the purposes of 8 U.S.C. § 1182

or fulfill the promise of due process and equal protection before the law.

      I would reverse the Board’s conclusion that Carr is inadmissible and therefore

ineligible for adjustment of status. I respectfully dissent.




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