IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60150

Summary Calendar

FLORENCIO CUEVAS,

Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Florencio Cuevas seeks review of the decision of the Board of 

Immigration Appeals (BIA) concluding that Cuevas was inadmissible because 

there was reason to believe he was a drug trafficker. Because the Department 

of Homeland Security (DHS) presented sufficient evidence to demonstrate that 

it had “reason to believe” Cuevas was an illegal trafficker, the petition for 

review is DISMISSED.

I.

Florencio Cuevas is a native and citizen of Mexico who was a legal 

permanent resident of the United States. While reentering the United States 

from Mexico in 2005, Cuevas’s car was searched, and nearly 24 kilograms of 

United States Court of Appeals

Fifth Circuit

FILED

December 10, 2013

Lyle W. Cayce

Clerk

 Case: 13-60150 Document: 00512467032 Page: 1 Date Filed: 12/10/2013
No. 13-60150

cocaine were found concealed in the car’s rear panel. Based on this finding, 

the Department of Homeland Security (DHS) charged Cuevas with 

removability under 8 U.S.C. § 1182(a)(2)(C) on the basis that there was “reason 

to believe” that Cuevas was a drug trafficker. Cuevas does not contest that the 

cocaine was found in his vehicle. Instead, Cuevas argues that there is not 

sufficient evidence to show that he was a drug trafficker because the DHS did 

not provide additional direct or circumstantial evidence that Cuevas knew the 

drugs were in his vehicle.

II.

Cuevas appeared in immigration court before an immigration judge (IJ). 

Cuevas’s main contention was that he was unaware that the cocaine was in his

vehicle. Cuevas testified that he bought the vehicle approximately two weeks 

before he left for Mexico from a man “on the street” in Chicago, paying $2,300 

for it. Cuevas testified that, during the two weeks he spent in Mexico, he had

exclusive control over the vehicle except for a period of between sixty and 

ninety minutes while his headlight was fixed at a mechanic’s shop in Mexico. 

Cuevas testified that the shop was located in a town near where he grew up, 

but that he knew neither the name of the shop nor the name of the proprietor. 

Based on this evidence, the IJ concluded that Cuevas was inadmissible, 

and therefore removable, under § 1182(a)(2)(C). Cuevas appealed the decision 

of the IJ to the BIA, and the BIA remanded the case, instructing the IJ to 

determine whether the DHS had “proven by clear, unequivocal, and convincing 

evidence” that there exists reason to believe that Cuevas was a drug trafficker. 

On remand, the IJ concluded that the DHS had shown sufficiently that 

there was reason to believe Cuevas was engaged in illicit drug trafficking. The 

IJ relied on several items of evidence: Cuevas was driving his own car that he 

had purchased just prior to his trip to Mexico; Cuevas had maintained 

exclusive control over the vehicle with the exception of a single ninety minute 

2

 Case: 13-60150 Document: 00512467032 Page: 2 Date Filed: 12/10/2013
No. 13-60150

period; Cuevas had mechanical work done on the vehicle two or three days 

before his arrest; there were fresh weld marks on the rear quarter panel of 

Cuevas’s vehicle; and the quantity of cocaine was an amount indicating illegal 

trafficking. 

The IJ rejected Cuevas’s testimony – giving it “very little weight” –

finding it implausible that either (1) someone had sold Cuevas a car containing 

24 kilograms of cocaine for $2,300 or (2) Cuevas had failed to notice 

modifications made to his car for the purposes of hiding the cocaine. 

On appeal, the BIA agreed that, through the evidence cited by the IJ, the

DHS had met its burden of proving a reason to believe that Cuevas was a drug 

trafficker and dismissed the appeal.1 Cuevas filed this timely petition for 

review.

III.

Cuevas challenges only the BIA’s determination that he is inadmissible, 

and therefore removable, under § 1182(a)(2)(C). On appeal, we review the 

BIA’s decision except to the extent the BIA has adopted conclusions or findings 

of the IJ. Chun v. I.N.S., 40 F.3d 76, 78 (5th Cir. 1994). 

An alien is inadmissible if a “consular officer or the Attorney General 

knows or has reason to believe” that the alien “is or has been an illicit trafficker 

in any controlled substance” or has knowingly aided or abetted such 

trafficking. 8 U.S.C. § 1182(a)(2)(C). Our review of such a determination is 

limited in the immigration context. We lack jurisdiction to review any final 

order of removal against an alien who is removable for having committed a 

criminal offense under § 1182(a)(2), but retain jurisdiction over questions of 

1 The BIA declined to consider the fresh weld marks as evidence against Cuevas. 

Before the BIA, Cuevas raised several arguments against relying on the weld marks as 

evidence of Cuevas’s drug trafficking. The BIA determined that it need not reach Cuevas’s 

arguments because the other evidence was sufficient.

3

 

 Case: 13-60150 Document: 00512467032 Page: 3 Date Filed: 12/10/2013
No. 13-60150

law. 8 U.S.C. § 1252(a)(2)(C)-(D). Additionally, we retain jurisdiction to review 

jurisdictional questions, such as whether an alien “is inadmissible pursuant to 

[§ 1182(a)(2)].” Balogun v. Ashcroft, 270 F.3d 274, 278 (5th Cir. 2001). Specific 

to this case, the Government concedes that we have jurisdiction to decide 

whether the DHS had reason to believe that Cuevas participated in illegal drug 

trafficking. If we find that the DHS had reason to believe that Cuevas was 

engaged in illegal trafficking, we lack jurisdiction to review the BIA’s order 

and must dismiss the petition.

IV.

In deciding this jurisdictional question, we face two related issues on 

which our court has not spoken. First, whether a criminal conviction is 

required for an alien to be removable under § 1182(a)(2)(C). Second, what 

amount of evidence the DHS must provide in order to establish a reason to 

believe that an alien is engaged in illegal trafficking.

A.

Our court has not yet decided whether there can be reason to believe that 

an alien is a drug trafficker if the alien were not convicted of a drug trafficking

offense. We have no difficulty, however, in joining other circuits that have held 

that a conviction is not required to meet this standard. See Lopez-Umanzor v. 

Gonzales, 405 F.3d 1049, 1053 (9th Cir. 2005) (“Section 1182(a)(2)(C) does not 

require a conviction. . . .”); 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.”); see also In re Rico, 16 I. & N. 

Dec. 181, 185–86 (BIA 1977) (alien excluded after being caught with truckload 

of marijuana, even though never convicted).

Moreover, the plain language of the statute does not indicate that a prior 

conviction is necessary. Indeed, “reason to believe” necessarily evokes a lower 

standard than the “beyond a reasonable doubt” required to obtain a criminal 

4

 Case: 13-60150 Document: 00512467032 Page: 4 Date Filed: 12/10/2013
No. 13-60150

conviction. Compare 8 U.S.C. § 1182(a)(2)(C), with In re Winship, 397 U.S. 

358, 361 (1970) (reaffirming requirement of proving guilt beyond a reasonable 

doubt for criminal convictions). Based on this language, and the precedents 

mentioned above, we hold that an alien can be inadmissible pursuant to

§ 1182(a)(2)(C) even when not convicted of a crime.

B.

Although not requiring a prior conviction, § 1182(a)(2)(C) does require

some measure of evidence to support the DHS’s belief that an alien is an illegal 

drug trafficker. Again, however, our circuit precedent has not established the

amount of evidence that the DHS must present to satisfy the reason to believe

standard. The First Circuit and the BIA have intimated that this standard is

equivalent to the probable cause standard. See Westover v. Reno, 202 F.3d 475, 

480 n.6 (1st Cir. 2000) (speculating in dicta that probable cause to believe that 

an alien was growing marijuana could have rendered the alien removable 

under § 1182(a)(2)(C)); In re U-H-, 23 I. & N. Dec. 355, 356 (BIA 2002)

(describing the “reasonable ground to believe” standard as “akin” to the 

probable cause standard). Conversely, the Ninth Circuit requires a showing

greater than mere probable cause. See Alarcon-Serrano v. I.N.S., 220 F.3d 

1116, 1119 (9th Cir. 2000) (holding that a “reason to believe” must be “based 

on reasonable, substantial, and probative evidence”). 

Under either of these standards, the DHS presented sufficient evidence 

to support its belief that Cuevas was engaged in illicit trafficking. To recap:

Cuevas was attempting to enter the United States with nearly 24 kilograms of 

cocaine, an amount consistent with trafficking; the cocaine was found in a 

vehicle that Cuevas owned; and, aside from a period of ninety minutes, Cuevas 

exercised complete control over the vehicle since he purchased it. 

Although this evidence does not establish with certainty that Cuevas 

knew about the cocaine being in the vehicle – it is possible, but hardly 

5

 Case: 13-60150 Document: 00512467032 Page: 5 Date Filed: 12/10/2013
No. 13-60150

plausible, that the cocaine was in the car when he purchased it or was placed 

in the vehicle without his knowledge – such certainty is not required under 

§ 1182(a)(2)(C). The facts presented by the DHS provide “reasonable, 

substantial, and probative evidence” that Cuevas was a drug trafficker. 

Because the evidence satisfies this standard – the more stringent of the two 

potential standards – it is unnecessary to decide whether a probable cause

standard would support the DHS’s reason to believe an alien is a drug 

trafficker. Under either standard, Cuevas was removable under 

§ 1182(a)(2)(C).

V.

Because a prior conviction is not required for an alien to be removable 

under § 1182(a)(2)(C), and because the DHS has shown through reasonable, 

substantial, and probative evidence that Cuevas was engaged in illicit 

trafficking, we lack jurisdiction to consider the petition for review. 

Accordingly, Cuevas’s petition is 

DISMISSED.

6

 Case: 13-60150 Document: 00512467032 Page: 6 Date Filed: 12/10/2013