         10-4675
         Munera Gallego v. Holder
                                                                                         BIA
                                                                                   Verrillo, IJ
                                                                                 A072 419 098
                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
     AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1                At a stated term of the United States Court of
 2       Appeals for the Second Circuit, held at the Thurgood Marshall
 3       United States Courthouse, 40 Foley Square, in the City of New
 4       York, on the 1st day of April, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                BARRINGTON D. PARKER,
 9                PETER W. HALL,
10                     Circuit Judges.
11       _____________________________________
12
13       OMAR ALBERTO MUNERA GALLEGO,
14                Petitioner,
15
16                           v.                                  10-4675
17                                                               NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                 Omar Alberto Munera Gallego, Pro Se,
24                                       Orlando, Florida.
25
26       FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
27                                       Attorney General; Greg D. Mack,
28                                       Senior Litigation Counsel; Colin J.
 1                             Tucker, Trial Attorney, Office of
 2                             Immigration Litigation, United
 3                             States Department of Justice,
 4                             Washington, D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

 7   Board of Immigration Appeals (“BIA”) decision, it is hereby

 8   ORDERED, ADJUDGED, AND DECREED that the petition for review

 9   is DENIED.

10       Omar Alberto Munera Gallego, a native and citizen of

11   Colombia, seeks review of an October 18, 2010, decision of

12   the BIA affirming the May 10, 2010, decision of Immigration

13   Judge (“IJ”) Philip Verrillo, finding him removable and

14   denying his motion to terminate proceedings, and terminating

15   his asylee status.     In re Omar Alberto Munera Gallego, No.

16   A072 419 098 (B.I.A. Oct. 18, 2010), aff’g No. A072 419 098

17   (Immig. Ct. Hartford May 10, 2010).     We assume the parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

20       Under the circumstances of this case, we have reviewed

21   the IJ’s decision as supplemented and modified by the BIA.

22   See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005);

23   Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

24   (2d Cir. 2005).     The applicable standards of review are

25   well-established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

26   v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

                                     2
 1       Although we generally do not have jurisdiction to

 2   review a final order of removal against an alien who is

 3   removable by reason of having committed a crime involving a

 4   controlled substance, see 8 U.S.C. § 1252(a)(2)(C), we

 5   retain jurisdiction to review non-frivolous constitutional

 6   claims and questions of law — and review such questions de

 7   novo, see id. § 1252(a)(2)(D).     Munera Gallego raises non-

 8   frivolous questions of law challenging the denial of his

 9   motion to terminate and the agency’s determination that his

10   arrest for trafficking cocaine supported a reasonable belief

11   that he was engaged in drug trafficking under 8 U.S.C.

12   § 1182(a)(23) and thus was removable.    These arguments lack

13   merit.

14       Distinct from other bases of inadmissibility and

15   removability, § 1182(a)(23) does not require a conviction,

16   but a “reasonable belief” that an alien is or was engaged in

17   illicit trafficking of a controlled substance.     The BIA has

18   held that in making a finding a removability on this ground,

19   the IJ must base that finding on “reasonable, substantial,

20   and probative evidence.”    Matter of Rico, 16 I. & N. Dec.

21   181, 186 (B.I.A. 1977).    While an uncorroborated police

22   report that fails to provide factual observations may not


                                    3
 1   constitute substantial evidence, see Garces v. U.S. Att’y

 2   Gen., 611 F.3d 1337, 1343 (11th Cir. 2010); In re Arreguin

 3   de Rodriguez, 21 I. & N. Dec. 38, 42 (B.I.A. 1995), and the

 4   only complete police report in the record here was not

 5   certified by the state court in which it was filed, the IJ

 6   relied on both the factual observations in the police

 7   reports and corroborating booking and evidence reports.     The

 8   documentation established the discovery of plastic bags

 9   filled with a white substance believed to be cocaine and a

10   large amount of cash found on Munera Gallego’s person and in

11   hidden compartments in his car and belongings, and noted

12   Munera Gallego’s admission that he was in possession of

13   drugs and that he provided the police with an alias.     As his

14   admission, the large amount of currency, and the existence

15   of hidden compartments tend to demonstrate both that the

16   untested white substance was an illicit drug and that Munera

17   Gallego was a drug dealer, see United States v. Perez, 144

18   F.3d 204, 208 (2d Cir. 1998); United States v. Gonzalez, 922

19   F.2d 1044, 1056 (2d Cir. 1991), the record contained

20   substantial evidence demonstrating a reason to believe that

21   Munera Gallego was engaged in illicit trafficking of

22   cocaine, a controlled substance, see § 1182(a)(23); cf.


                                  4
 1   Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1211 (9th Cir.

 2   2004) (finding that there was substantial evidence meeting

 3   “reason to believe” standard based on reports of suspicious

 4   meetings, the alien’s attempt to evade arrest, and the

 5   subsequent discovery of 147 pounds of marijuana inside the

 6   alien’s car); Alarcon-Serrano v. INS, 220 F.3d 1116, 1120

 7   (9th Cir. 2000) (finding that evidence of alien’s arrest

 8   while attempting to drive a car carrying 86 pounds of

 9   concealed marijuana constituted substantial evidence

10   supporting a “reason to believe” the alien was engaged in

11   illicit trafficking).

12       Munera Gallego also fails to raise a meritorious

13   constitutional claim or question of law regarding the

14   termination of his asylee status.   His arguments that the IJ

15   erred in weighing the evidence merely dispute the IJ’s

16   factual findings.   See Xiao Ji Chen v. U.S. Dep’t of

17   Justice, 471 F.3d 315, 329 (2d Cir. 2006).   Although we may

18   consider his argument that the IJ failed to consider the

19   survival of certain paramilitary groups in Colombia, his

20   argument is without merit because the agency expressly

21   considered the Colombian government’s failure to dismantle

22   all paramilitary groups, but noted that its marked success

23   and continued efforts to demobilize those groups supported a
                                   5
 1   finding that Munera Gallego no longer had a well-founded

 2   fear of persecution.

 3       Furthermore, contrary to Munera Gallego’s argument, the

 4   agency did not rely solely on his voluntary return to

 5   Colombia in finding that he no longer had an objective fear

 6   of persecution.   Rather, in conjunction with the general

 7   decrease in paramilitary violence in Colombia, the agency

 8   considered Munera Gallego’s testimony that: (1) his family

 9   had over a decade before abandoned the disputed farmland

10   that rendered them targets of the guerillas; (2) he remained

11   in Colombia for one month unharmed; and (3) his family had

12   not been harmed since abandoning the disputed farmland.

13   Accordingly, because the voluntary return was only one

14   factor that the agency considered, Munera Gallego has not

15   demonstrated any legal error in the agency’s decision.      Cf.

16   Kone v. Holder, 596 F.3d 141, 150-51 (2d Cir. 2010) (citing

17   Tarraf v. Gonzales, 495 F.3d 525, 534 (7th Cir. 2007)

18   (finding that while return trips weigh against an alien’s

19   credible fear, there “well may be circumstances when a

20   person who legitimately fears persecution nevertheless might

21   elect to return temporarily to his home country”)).

22

23
                                   6
1        For the foregoing reasons, the petition for review is

2    DENIED.    As we have completed our review, any stay of removal

3    that the Court previously granted in this petition is VACATED,

4    and any pending motion for a stay of removal in this petition

5    is DISMISSED as moot. Any pending request for oral argument in

6    this petition is DENIED in accordance with Federal Rule of

7    Appellate Procedure 34(a)(2), and Second Circuit Local Rule

8    34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk




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