PUBLISH 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

GUSTAVO MENA-FLORES, 

 Petitioner, 

v. Nos. 13-9532, 13-9584 & 13-9605 

ERIC H. HOLDER, JR., United 

States Attorney General, 

 

 Respondent. 

Petitions for Review from the 

Board of Immigration Appeals 

Mark R. Barr, Lichter Immigration, Denver, CO, for Petitioner. 

Robert Michael Stalzer, United States Department of Justice, Washington, 

D.C. (Stuart F. Delery, Assistant Attorney General, Civil Division, AnhThu Mai-Windle, Senior Litigation Counsel, and Julie M. Iversen, Trial 

Attorney, Office of Immigration Litigation, Civil Division, United States 

Department of Justice, Washington, D.C., on the briefs) for Respondent. 

Before HOLMES, BACHARACH, and MCHUGH, Circuit Judges. 

BACHARACH, Circuit Judge. 

The Department of Homeland Security initiated proceedings to 

remove Mr. Gustavo Mena Flores from the United States on the ground that 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 23, 2015

Elisabeth A. Shumaker 

Clerk of Court

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he was in the country illegally. Mr. Mena Flores conceded removability, 

but applied to adjust his status to permanent residency based on his 

marriage to a U.S. citizen. The immigration judge eventually denied the 

request, stating that Mr. Mena Flores was ineligible for permanent 

residency because of a “reasonable belief” that he had participated in drug 

trafficking. On appeal the Board of Immigration Appeals affirmed, 

concluding that the immigration judge had sufficient evidence to find a 

reason to believe that Mr. Mena Flores had participated in drug trafficking. 

Mr. Mena Flores petitioned this court to review the Board’s denial of 

his request for adjustment in status. While the petition was pending, the 

Board denied Mr. Mena Flores’s subsequent motions to reopen the case and 

reconsider the denial of his motion to reopen. Mr. Mena Flores then filed 

petitions seeking review of these denials. 

We deny Mr. Mena Flores’s petitions to review the Board’s three 

orders, which affirmed the denial of his application to adjust his status and 

denied his requests to reopen the proceedings and to reconsider the refusal 

to reopen. The Board of Immigration Appeals did not err when it held that 

Mr. Mena Flores had failed to 

● prove eligibility for an adjustment in status or 

● justify reopening or reconsideration. 

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I. Removal Proceedings and Request for an Adjustment in Status 

Mr. Mena Flores entered the United States unlawfully in 1990. 

Sixteen years later, the Department of Homeland Security initiated removal 

proceedings on the ground that he was present in the United States without 

admission or parole. Mr. Mena Flores admitted that he was removable 

because he was “undocumented.” But, Mr. Mena Flores tried to change 

this status, seeking permanent residency based on his marriage to a U.S. 

citizen. If he had succeeded, he would have avoided removal. 

The Department of Homeland Security contended that Mr. Mena 

Flores could not become a permanent resident based on his criminal 

activity. This contention stemmed from an arrest of Mr. Mena Flores on 

drug charges.1

 Though Mr. Mena Flores was acquitted, an immigration 

judge cannot adjust an alien’s status if the evidence creates even a “reason 

to believe” that the applicant participated in drug trafficking. 8 U.S.C. 

§§ 1182(a)(2)(C)(i), 1255(i)(2)(A). This standard is lower than the 

“beyond a reasonable doubt” standard, so the acquittal did not guarantee 

eligibility to become a permanent resident. See, e.g., Cuevas v. Holder, 

737 F.3d 972, 975 (5th Cir. 2013) (holding “that an alien can be 

 

1

 The charges included (1) one count of distribution of a controlled 

substance, cocaine, (2) one count of distribution of a controlled substance, 

methamphetamine, (3) one count of conspiracy to distribute a controlled 

substance, cocaine and methamphetamine, (4) one count of possession of a 

controlled substance, methamphetamine, and (5) one count of possession of 

a controlled substance, cocaine. R. (Case No. 13-9532) at 590-92. 

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inadmissible under § 1182(a)(2)(C) even when not convicted of a crime”); 

Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1053 (9th Cir. 2005) (“Section 

1182(a)(2)(C) does not require a conviction, but only a ‘reason to believe’ 

that the alien is or has been involved in drug trafficking.”); Garces v. U.S. 

Att’y Gen., 611 F.3d 1337, 1345 (11th Cir. 2010) (stating that 

§ 1182(a)(2)(C) renders an alien inadmissible based on a “reason to 

believe” standard, which does not require a conviction). 

 Both parties submitted evidence on the allegations of drug 

trafficking, relying on some of the records from the state criminal trial. At 

a hearing, the immigration judge granted Mr. Mena Flores’s request for 

adjustment in status. The immigration judge found that Mr. Mena Flores 

had shown there was no reason to believe he was a participant in drug 

trafficking. R. (Case No. 13-9532) at 261-62. 

 The Department of Homeland Security appealed, urging that the 

agency had a reason to believe Mr. Mena Flores had trafficked in drugs. 

The Board of Immigration Appeals remanded to the immigration judge to 

address all of the evidence. 

On remand, the immigration judge denied Mr. Mena Flores’s 

application. On essentially the same record, the judge found that there was 

reasonable, substantial, and probative evidence creating a reason to believe 

that Mr. Mena Flores had been involved in drug trafficking. Id. at 30. For 

these findings, the immigration judge relied on 

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● the statements from “[a]t least five witnesses” involved in the 

 drug operation, 

● an affidavit by a special agent identifying two other witnesses 

 to Mr. Mena Flores’s trafficking activities, and 

● a determination that Mr. Mena Flores was not credible because 

 of his demeanor while testifying. 

Id. at 28-30. 

Mr. Mena Flores appealed to the Board of Immigration Appeals, 

which affirmed and adopted the immigration judge’s decision. Id. at 3. 

II. Mr. Mena Flores’s Administrative Motions for Reopening and 

 Reconsideration 

 After the Board’s decision, Mr. Mena Flores hired new counsel, who 

moved for the Board to reopen the removal proceedings to consider 

transcripts from the criminal trial and additional character references. See 

R. (Case No. 13-9605) at 122-23. Mr. Mena Flores argued that his prior 

attorney had been ineffective by failing to present this evidence earlier. 

The Board denied the motion to reopen, holding that prior counsel’s failure 

to introduce the evidence did not amount to “egregious circumstances” or 

result in prejudice. Id. at 123. 

Following the denial of his motion to reopen, Mr. Mena Flores 

moved for the Board to reconsider the denial of his motion to reopen, 

arguing that the Department of Homeland Security had misrepresented 

critical evidence by splitting one witness’s statements, correctly attributing 

one part and misattributing the other part to another witness. Mr. Mena 

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Flores argues that this error caused the immigration judge to mistakenly 

believe that there was an additional witness. The Board denied the motion, 

reasoning that Mr. Mena Flores could not establish prejudice because the 

misattributed statements were merely “cumulative [of] other consistent and 

corroborative evidence relied upon by the Immigration Judge.” Id. at 4. 

III. Denial of Adjustment in Status 

 When the immigration judge disallowed an adjustment in status, he 

reasoned that Mr. Mena Flores had not satisfied his burden of proof on 

eligibility because of the evidence of drug trafficking. The Board of 

Immigration Appeals dismissed the appeal, and we conclude that this 

dismissal did not constitute error. 

A. Subject Matter Jurisdiction 

This court generally has subject matter jurisdiction to review final 

orders of removal, such as the order against Mr. Mena Flores. 8 U.S.C. 

§ 1252(a)(1), (5). But, exceptions exist, and the Department of Homeland 

Security invokes three of them: 

1. 8 U.S.C. § 1252(a)(2)(C), which bars review of orders against 

 aliens who are removable because they have participated in 

 drug trafficking; 

2. 8 U.S.C. § 1252(a)(2)(B)(i), which bars review of orders 

 involving discretionary relief, including adjustment in status; 

 and 

3. 8 U.S.C. § 1252(d)(1), which bars review of unexhausted 

 arguments. 

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These provisions do not preclude jurisdiction.2

1. Criminal Aliens, 8 U.S.C. § 1252(a)(2)(C) 

In 8 U.S.C. § 1252(a)(2)(C), federal law precludes jurisdiction to 

review an order of removal of an alien who “is removable” based on 

commission of certain crimes, including drug trafficking. 8 U.S.C. 

§ 1252(a)(2)(C). We must decide if this provision applies when the agency 

ordered removal based on illegal presence in the country and relied on 

criminality only to decline an adjustment in status. We conclude that 

§ 1252(a)(2)(C) does not apply in these circumstances. 

The Department of Homeland Security argues that Mr. Mena Flores is 

removable because the government could have ordered him removed based 

on drug trafficking. We disagree with this logic. The agency did not find 

Mr. Mena Flores removable for drug trafficking, so application of this 

jurisdictional bar would require us to make new factual findings. Because 

such fact finding would be inappropriate, we hold that § 1252(a)(2)(C) 

does not preclude jurisdiction in situations like ours, when there is no 

 

2

 The Department of Homeland Security argues that if § 1252 applies, 

our jurisdiction would be limited to considering constitutional claims. 

But, we conclude that § 1252 does not foreclose jurisdiction. Thus, we 

need not consider the Department’s argument that our jurisdiction is 

limited to constitutional claims. 

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conviction and the alien was not ordered removed for a covered crime 

(such as drug trafficking).3

Section 1252(a)(2)(C) precludes jurisdiction when an alien “is 

removable” based on participation in drug trafficking. But, the phrase “is 

removable” can be interpreted in two ways: 

1. as requiring a finding by the immigration judge that the alien 

was removable for drug trafficking, or 

2. as capturing all instances in which the agency could have 

removed the alien for criminal activity, even when no 

immigration judge had found criminal activity and the alien had 

not been convicted of a covered crime. 

See Calcano-Martinez v. INS, 533 U.S. 348, 350 n.2 (2001) (stating that 

§ 1252(a)(2)(C) “is not without its ambiguities”). 

 Our resolution of this ambiguity determines whether we have 

jurisdiction. We retain jurisdiction if we adopt the first definition because 

Mr. Mena Flores was not removed based on drug trafficking. (He was 

ordered removed based on his “undocumented” status.) We might lack 

jurisdiction if we adopt the second definition because there is evidence that 

Mr. Mena Flores trafficked in drugs.4

 

3

 Under federal law, an alien is considered inadmissible when 

convicted of certain crimes. 8 U.S.C. § 1182(a)(2)(A)-(B). Thus, factfinding may be unnecessary when the alien was convicted of a crime. But, 

our case does not involve a conviction. 

4

 Under the second definition, we would need to decide in the first 

instance whether the government had proven by clear and convincing 

evidence that there was a reason to believe the allegations of drug 

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 We adopt the first definition based on 

● the “strong presumption in favor of judicial review of 

 administrative action,”5

● the “longstanding principle of construing any lingering 

 ambiguities in deportation statutes in favor of the alien,”6

 and 

● definitions of the term “removable” in other sections of the 

Immigration and Nationality Act. 

Applying these factors, we conclude that § 1252(a)(2)(C) does not strip us 

of jurisdiction. 

 Because the phrase “is removable” is ambiguous, we find guidance in 

principles of statutory interpretation. See Calcano-Martinez v. INS, 533 

U.S. 348, 350 n.2 (2001) (explaining that because § 1252(a)(2)(C) is 

ambiguous, “[the] background principles of statutory construction and 

constitutional concerns must be considered”). These principles include a 

strong presumption favoring judicial review of administration action. See 

INS v. St. Cyr, 533 U.S. 289, 298 (2001) (explaining that the agency had to 

overcome this presumption by showing that statutes “stripped the courts of 

jurisdiction to decide the question of law presented by” a habeas corpus 

application). 

 

trafficking. 8 U.S.C. § 1229a(c)(3); 8 C.F.R. § 1240.8(a). We are not 

making this assessment in the first instance because we adopt the first 

definition and reject the second. 

 

5

 INS v. St. Cyr, 533 U.S. 289, 298 (2001). 

6

 INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987).

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 As noted above, the phrase “is removable” can be interpreted in two 

ways. One would apply whenever the court could ultimately deem the 

alien removable; the other would apply only when the immigration judge 

found the alien removable for covered crimes. Interpreting the phrase to 

require a finding by the immigration judge, we adopt a definition that 

facilitates judicial review of administrative action. 

In doing so, we also follow the established principle of construing 

ambiguities in removal statutes in favor of the alien. See United States v. 

Quintana, 914 F.2d 1409, 1410 (10th Cir. 1990) (“Statutes relating to 

deportation of aliens are liberally construed in favor of the alien concerned 

as the deportation penalty can be harsh.”). This principle applies here 

because § 1252(a)(2)(C) contains a lingering ambiguity (“is removable”) 

and relates to removability by governing the appealability of orders of 

removal. 

We interpret “is removable” in favor of aliens by defining it to 

require that the agency actually removed aliens on the ground of drug 

trafficking (rather than ineligibility for an adjustment in status because of 

evidence involving drug trafficking). The statute strips us of jurisdiction 

to review orders of removal only when an alien is actually removed for 

trafficking. This interpretation expands aliens’ opportunities to seek 

judicial review. As a result, our interpretation favors aliens. 

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We rely not only on canons of construction, but also on other parts of 

the Immigration and Nationality Act. To do so, we examine the statute to 

see how it uses the terms “removal” and “removable.” 

We start with the section we are interpreting: § 1252(a)(2)(C). This 

section refers to an alien who “is removable.” Elsewhere in the statute, 

Congress provided that removal proceedings must take place before an 

immigration judge. 8 U.S.C. § 1229a(a)(1). Under 8 U.S.C. § 1229a, the 

immigration judge must “decide whether [the] alien is removable.” 8 

U.S.C. § 1229a(c)(1)(A). “Section 1229a’s use of the term ‘removable’ 

suggests . . . that a person is not ‘removable’ on a particular basis unless 

or until the [immigration judge] determines that he is.” Alvarez-Santos v. 

INS, 332 F.3d 1245, 1251 (9th Cir. 2003); see also Choeum v. INS, 129 

F.3d 29, 38 (1st Cir. 1997) (concluding that a statute―stripping courts of 

jurisdiction “‘by reason of [an alien] having committed’ certain types of 

criminal offenses”―applies only to “aliens who have actually been 

adjudged deportable” for the specified crimes). Therefore, the phrase “is 

removable” can be satisfied only when an immigration judge concludes that 

the alien is removable for committing a covered crime. 

 The government relies on Shepherd v. Holder, 678 F.3d 1171 (10th 

Cir. 2012), arguing that we lack jurisdiction because of evidence that could 

have allowed removal of Mr. Mena Flores based on drug trafficking. 

Shepherd involved removal of an individual based on forgery after she had 

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been convicted of forgery. See Shepherd, 678 F.3d at 1175. The 

immigration judge initially denied removal, concluding that the individual 

was a citizen under the Child Citizenship Act. See id. Subsequently, the 

government again sought removal, arguing that the alien was removable 

based on the forgery conviction because she was too old to qualify for 

citizenship under the Child Citizenship Act. See id. at 1175-76. The 

immigration judge agreed and ordered removal. See id. at 1176. 

 On appeal we determined that we had jurisdiction to consider the 

threshold jurisdictional question of whether the individual was a citizen, 

but lacked jurisdiction to determine whether the individual was removable 

because of her forgery conviction. Id. at 1179. For this holding, we 

quoted Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001), where we had said: 

The [statute] divests courts of jurisdiction only if an alien “is

removable by reason of having committed a criminal offense.” 

8 U.S.C. § 1252(a)(2)(C) (emphasis added). It does not say 

that courts lack jurisdiction if the . . . alien is found deportable 

for commission of certain criminal offenses [by the 

[Immigration Judge/Board of Immigration Appeals]. Thus, the 

statutory language clearly requires that we determine whether 

[the triggering statutory] conditions exist before dismissing the 

appeal. 

Id. at 1180 (quoting Garcia v. INS, 237 F.3d 1216, 1220 (10th Cir. 2001)). 

We quoted this language only for the proposition that we can consider the 

jurisdictional facts, not to indicate that we can make new factual findings 

triggering the jurisdictional bar in § 1252(a)(2)(C). Id. There was no need 

for the court to make a new factual finding on removability for commission 

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of a covered crime; the agency had already made that finding. Id. at 1176.7

 

Thus, Shepherd does not suggest that a court can lose jurisdiction by 

making new factual findings of criminality. 

 Because Shepherd does not apply, we conclude that we have 

jurisdiction over the petition. Mr. Mena Flores was not removed for 

trafficking in drugs; he was removed because he was undocumented and 

unable to satisfy his burden for an adjustment in status. The evidence of 

criminality was relevant not to prove Mr. Mena Flores was removable as a 

criminal, but to rebut his argument that he was eligible for an adjustment 

in status. 

 Ultimately, Mr. Mena Flores bore an obligation to dispel any reason 

to believe the drug trafficking allegation. But, the immigration judge 

could deny an adjustment in status even if he had not regarded Mr. Mena 

Flores as a drug trafficker. Because Mr. Mena Flores was removed on 

noncriminal grounds, we retain jurisdiction notwithstanding 

§ 1252(a)(2)(C). See Syblis v. Att’y Gen., 763 F.3d 348, 351 n.5 (3d Cir. 

2014) (stating that § 1252(a)(2)(C) does not bar jurisdiction when the 

 

7

 The same was true in Garcia v. INS. There, we addressed 8 U.S.C. 

§ 1227(A)(2)(A)(iii), which provides for removal of aliens convicted of 

aggravated felonies. Garcia v. INS, 237 F.3d 1216, 1217 (10th Cir. 2001). 

There was no question about whether the alien was guilty. The statute 

authorized removal based on a conviction, and the alien had been convicted 

of driving under the influence. Id. The sole jurisdictional issue was 

whether the crime involved an aggravated felony. Id. at 1221. 

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agency found the alien removable based on the overstay statute rather than 

his criminal conviction). 

 2. Discretionary Relief, 8 U.S.C. § 1252(a)(2)(B)(i) 

Section 1252(a)(2)(B)(i) strips the federal courts of jurisdiction to 

review decisions “regarding the granting of [discretionary] relief” under 

§ 1229b. 8 U.S.C. § 1252(a)(2)(B)(i). Because adjustment in status 

involves a form of discretionary relief under § 1229b, the Department of 

Homeland Security argues that we lack jurisdiction. We disagree.

Even when an alien seeks a discretionary form of relief, the 

jurisdictional bar in § 1252(a)(2)(B)(i) does not apply to nondiscretionary 

aspects of that relief. Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1148-

49 (10th Cir. 2005). In evaluating an application for adjustment in status, 

an immigration judge must make both discretionary and nondiscretionary 

determinations. The judge must determine if the alien 

● satisfies the eligibility requirements and 

● merits the favorable exercise of discretion by the court. 

8 U.S.C. 1229a(c)(4)(A). The second element involves a discretionary 

determination, but the first one does not. 

The immigration judge declined relief based on the first 

determination, concluding that Mr. Mena Flores could not become a 

permanent resident because of the evidence of drug trafficking. R. (Case 

No. 13-9532) at 63-65. With this conclusion, the immigration judge noted 

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that he had not reached the discretionary determination. Id. at 65 n.1. 

Therefore, our review is limited to the nondiscretionary aspects of the 

immigration judge’s determination that Mr. Mena Flores is ineligible for 

relief. In these circumstances, § 1252(a)(2)(B)(i) does not preclude 

jurisdiction. 

3. Exhaustion of Arguments, 8 U.S.C. § 1252(d)(1) 

 We can review an order of removal only if the alien has exhausted 

available administrative remedies. 8 U.S.C. § 1252(d)(1). The government 

argues that Mr. Mena Flores makes two unexhausted arguments on appeal: 

 1. The statements by trafficker-informants were not credible 

 because of internal inconsistencies. 

 2. The government misattributed Mr. Kenneth Fuqua’s 

 statements to Mr. Gary Smith, making it appear that an 

 additional person had identified Mr. Mena Flores as a part of 

 the drug trafficking organization. 

We disagree, concluding that both arguments are exhausted because the 

Board of Immigration Appeals has addressed these arguments on the 

merits. 

 The two arguments were presented in the motions to reopen and 

reconsider, and the Board rejected both arguments on the merits. R. (Case 

No. 13-9605) at 4, 25-26, 123, 159-64. “If the [Board of Immigration 

Appeals] deems an issue sufficiently presented to consider it on the merits, 

such action by the BIA exhausts the issue as far as the agency is concerned 

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and that is all § 1252(d)(1) requires to confer our jurisdiction.” Sidabutar 

v. Gonzales, 503 F.3d 1116, 1120 (10th Cir. 2007). 

 By submitting both arguments to the Board and obtaining decisions 

on the merits, Mr. Mena Flores has exhausted his arguments on internal 

inconsistency and misattribution of statements to Gary Smith. See Molina 

v. Holder, 763 F.3d 1259, 1262-63 (10th Cir. 2014); cf. Sidabutar, 503 

F.3d at 1122 (stating that two claims were unexhausted because they 

“should have been brought before the BIA in the first instance through a 

motion to reconsider or reopen”). 

B. Merits 

 The Board denied Mr. Mena Flores’s request for adjustment in status, 

concluding that his participation in drug trafficking made him ineligible to 

become a permanent resident. On review, we evaluate if the Board’s 

conclusion was supported by substantial evidence. Based on that review, 

we conclude the agency did not err in denying Mr. Mena Flores’s 

application for an adjustment in status. 

1. Burden of Proof 

 Like any alien applying for relief from removal, Mr. Mena Flores 

bears the burden to prove his eligibility. 8 U.S.C. § 1229a(c)(4). Thus, 

Mr. Mena Flores must prove that he is eligible to become a permanent 

resident. 

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 The Department of Homeland Security denies eligibility based on 

evidence of drug trafficking. To rebut that position,8

 Mr. Mena Flores 

must prove that there is not a reason to believe that he had participated in 

drug trafficking. See 8 U.S.C. §§ 1182(a)(2)(C), 1229a(c)(2)(A), 

1255(i)(2)(A); 8 C.F.R. § 1240.8(d). 

2. Standard of Review 

 The Board determined that the evidence supported a belief that 

Mr. Mena Flores had participated in drug trafficking. In reviewing the 

Board’s decision, we engage in de novo review of constitutional and other 

legal questions. Lorenzo v. Mukasey, 508 F.3d 1278, 1282 (10th Cir. 

2007). Factual determinations, including credibility determinations, are 

reviewed only for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 

478, 481 (1992); see Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 

2004) (holding that credibility determinations are reviewed under the 

substantial evidence test in the asylum context). Under this standard, we 

uphold the Board’s finding only if the evidence was “reasonable, 

 

8

 After the immigration judge found that Mr. Mena Flores deserved 

discretionary relief, the Department of Homeland Security appealed to the 

Board. In deciding that appeal, the Board stated that the burden of proof 

shifted to the government to establish that there was a reason to believe 

that Mr. Mena Flores had been involved in drug trafficking. R. (Case No. 

13-9584) at 932. That statement conflicts with our precedent, which puts 

the burden on the alien to prove that a mandatory ground for denial of 

relief does not apply. Garcia v. Holder, 584 F.3d 1288, 1289-90 (10th Cir. 

2009). 

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substantial and probative.” Elzour, 378 F.3d at 1150.9

 Applying this 

standard, we can reverse the Board’s findings of fact only if “any 

reasonable adjudicator would be compelled to conclude to the contrary.” 8 

U.S.C. § 1252(b)(4)(B). 

 Although we are reviewing the decision of the Board, we can consult 

the immigration judge’s opinion to the extent that it was relied upon by the 

Board. Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). In this case, 

the Board adopted all of the immigration judge’s findings, so we will refer 

to opinions of both the Board and the immigration judge when evaluating 

the sufficiency of the evidence. R. (Case No. 13-9532) at 3. 

3. The Evidence of Trafficking 

 Authorities suspected that Mr. Mena Flores had participated in a drug 

trafficking organization led by his brother, Santiago. This suspicion led to 

drug charges against Mr. Mena Flores. Though Mr. Mena Flores was 

acquitted, the Department of Homeland Security used the trial evidence to 

prevent Mr. Mena Flores from adjusting his status to permanent residency. 

 In denying Mr. Mena Flores’s request for adjustment in status, the 

immigration judge and the Board relied on three types of evidence: 

 

9

 The requirement of “reasonable, substantial, and probative” evidence 

applies in two contexts. We define “substantial evidence” as evidence that 

is “reasonable, substantial, and probative.” Elzour v. Ashcroft, 378 F.3d at 

1150. And, in applying 8 U.S.C. § 1182(a)(2)(C), the Board of 

Immigration Appeals interprets the phrase “reason to believe” to require 

proof by “reasonable, substantial, and probative evidence.” Matter of 

Rico, 16 I. & N. Dec. 181, 185 (BIA 1977). 

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 1. witness statements, 

 2. an affidavit from a special agent, and 

 3. Mr. Mena Flores’s testimony. 

a. The Witness Statements 

 In police reports and sworn statements, four participants in the drug 

trafficking organization (Mr. Donald Skinner, Mr. Kenneth Fuqua, Mr. 

Richard Lee Clark, and Mr. Benito Garcia) said that Mr. Mena Flores had 

been involved in the drug operation. Mr. Mena Flores questions their 

credibility based on their criminal records, content of their testimony, and 

bias resulting from their incentives to provide incriminating information. 

 The first witness was Mr. Donald Skinner, who identified Mr. Mena 

Flores from a picture, stating that he was Santiago’s “brother and one of 

his runners.” R. (Case No. 13-9532) at 2003 (“I called [Santiago] and tell 

[sic] him what I needed and [Santiago] called me back telling me that I’m 

going to meet [Mr. Mena Flores].”). Mr. Skinner testified inconsistently 

regarding the number10 and locations11 of these transactions. 

 Mr. Skinner was subject to impeachment in three ways: 

 

10 R. (Case No. 13-9532) at 926 (over 30); id. at 929-30 (approximately 

24); id. at 1034 (at least 20). 

11 R. (Case No. 13-9532) at 930 (stating that the deals occurred only in 

public places); id. at 2003-04 (stating that he sometimes picked up drugs at 

Mr. Mena Flores’s house). 

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 1. He admitted that his memory was poor because of “a lot of 

 stuff in [his] head.”12

 2. He had prior arrests for making false reports.13

 3. He admitted that he could not distinguish between Mr. Mena 

 Flores and one of his brothers (Martin), who was also involved 

 in drug activity.14

 The second witness was Mr. Kenneth Fuqua, who identified 

Mr. Mena Flores as one of Santiago’s brothers involved in the drug 

business. Id. at 1051 (Incident Rep., Dec. 16, 2005), 2234 (Statement of 

Kenneth Fuqua, Feb. 7, 2006). Mr. Fuqua could not provide details about 

dates or the amount of drugs provided by Mr. Mena Flores. Id. at 2260-67. 

 The third witness was Mr. Richard Lee Clark. When shown a picture 

of Mr. Mena Flores, Mr. Clark said that he recognized the individual from 

a drug transaction. Id. at 394 (Incident Rep., Dec. 7, 2005). This account 

had two problems: 

 1. Mr. Clark said the individual’s name was “Chico,” and 

Mr. Mena Flores’s nickname was “Tavo.”15

 2. Mr. Clark elsewhere confused Mr. Mena Flores with one of his 

 brothers (Martin).16

 

12 R. (Case No. 13-9532) at 2086; see also id. at 2073 (stating that he 

had “a lot in [his] head”). 

13 R. (Case No. 13-9532) at 1176. 

14 R. (Case No. 13-9532) at 2012. 

15 R. (Case No. 13-9532) at 394. 

16 R. (Case No. 13-9532) at 2353-55. 

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 The fourth witness was Mr. Benito Garcia, who said that Mr. Mena 

Flores had been the “main person” helping Santiago. Id. at 4340 (Incident 

Rep., March 25, 2007). But, Mr. Garcia admitted that he had never 

conducted any deliveries with Mr. Mena Flores or seen him at any 

deliveries. Id.

b. Special Agent McVey’s Affidavit 

 Special Agent Jeffrey McVey submitted an affidavit stating that two 

more participants in the drug operation had identified Mr. Mena Flores: 

Ms. Kyla Weisberg and Ms. Lucinda Allen. 

 According to the affidavit, Ms. Weisberg said “that she had gone 

with [Mr. Skinner] to pick up [drugs] from [Santiago] Mena Flores and his 

brothers.” Id. at 1325. But, in a related interview, Ms. Weisberg 

acknowledged that she “did not know the brothers[’] names” and that she 

believed that the men were Santiago’s brothers because Mr. Skinner had 

told her they were. Id. at 942. Ms. Weisberg was also unable to identify 

Mr. Mena Flores when shown his picture. Id. 

 In the affidavit, Special Agent McVey also referred to a statement by 

Ms. Lucinda Allen. Ms. Allen said that on one occasion, she had “met 

[with Santiago Mena Flores] at his brother’s residence located at 372 North 

18th Ct., Brighton, Colorado.” Id. at 1326. But, this address was not Mr. 

Mena Flores’s address; it was his brother Martin’s. Id. at 1033. On a 

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separate occasion, Ms. Allen was unable to identify a photograph of Mr. 

Mena Flores. Id. at 2551-52. 

 c. Mr. Mena Flores’s Testimony 

Mr. Mena Flores testified, denying any involvement in drug crimes or 

knowledge of his brother’s participation in drug crimes. The immigration 

judge found that Mr. Mena Flores was not credible “regarding his lack of 

knowledge of [sic] brother’s criminal activity,” finding instead that the 

evidence against Mr. Mena Flores was “internally consistent and 

probative.” Id. at 30. 17

4. Reason to Believe 

Mr. Mena Flores could not obtain permanent residency if there was 

“reason to believe” that he had participated in drug trafficking. 8 U.S.C. 

§ 1182(a)(2)(C).18 Thus, we ask: Did the Board err by concluding that Mr. 

Mena Flores had failed to disprove a reason to believe he had engaged in 

 

17 Mr. Mena Flores has not challenged the finding on his own 

credibility. 

18 The parties disagree on what this burden entails. Mr. Mena Flores 

admits that the evidence need not have proven drug trafficking beyond a 

reasonable doubt. But, what would suffice? The Board of Immigration 

Appeals has stated that the “reason to believe” standard is met only if the 

evidence is “reasonable, substantial and probative.” In re El-Abed, 2006 

WL 1558763, at *2 (BIA 2006); see note 9, above. The Department of 

Homeland Security concedes that the government had reason to believe the 

drug-trafficking allegations only if the evidence was reasonable, 

substantial, and probative. And, as discussed above, our standard of 

review requires us to decide whether the evidence was reasonable, 

substantial, and probative. See pp. 17-18 & note 9, above. 

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drug trafficking? Keeping in mind that Mr. Mena Flores bears the burden 

of proof for adjustment in status, we conclude the Board did not err. 

a. Credibility Issues 

The immigration judge was entitled to give credence to the testimony 

of Mr. Skinner, Mr. Fuqua, and Mr. Garcia19 despite the credibility 

challenges made by Mr. Mena Flores. 

Though Mr. Skinner identified Mr. Mena Flores as a participant in 

the drug ring, there were credibility issues. For the agency’s 

determinations on these credibility issues, we apply the abuse-of-discretion 

standard. See Elzour v. Ashcroft, 378 F.3d 1143, 1150 n. 9 (10th Cir. 

2004). Under this standard, the agency had the discretion to credit Mr. 

Skinner’s testimony. The agency could have downplayed the 

inconsistencies in light of Mr. Skinner’s consistent testimony that he had 

met Mr. Mena Flores at least twenty times. Similarly, the agency could 

have downplayed the problems in distinguishing Mr. Mena Flores from his 

brother Martin because Mr. Skinner said that he knew that both Mr. Mena 

Flores and Martin were active in the drug organization. 

The fact-finder could also give weight to Mr. Fuqua’s testimony. 

Mr. Fuqua remembered seeing Mr. Mena Flores’s car and a particular 

 

19 As discussed above, Mr. Richard Lee Clark also stated that he had 

recognized Mr. Mena Flores from a drug transaction. But, Mr. Clark had 

elsewhere confused Mr. Mena Flores with his brother Martin. We may 

assume, for the sake of argument, that Mr. Clark’s account added little to 

the government’s proof. See pp. 24-25, below. 

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transaction. Though Mr. Mena Flores attacks Mr. Fuqua’s credibility, a 

rational adjudicator could determine that Mr. Fuqua was credible. 

 The agency could also have relied on testimony by Mr. Garcia, who 

identified Mr. Mena Flores as a participant in the organization. Though 

Mr. Garcia never saw Mr. Mena Flores at a transaction, an adjudicator 

could rely on hearsay testimony. N-A-M v. Holder, 587 F.3d 1052, 1057-

58 (10th Cir. 2009) (explaining that the rules of evidence are relaxed in the 

immigration setting and the judge may rely on hearsay evidence as long as 

it is “probative and its use is fundamentally fair”). 

Through the accounts of Mr. Fuqua, Mr. Skinner, and Mr. Garcia, the 

immigration judge could reasonably find that the evidence supported a 

finding of ineligibility based on Mr. Mena Flores’s criminal activity. See 

United States v. Aguayo-Delgado, 220 F.3d 926, 934-35 (8th Cir. 2000) 

(holding that the evidence was sufficient to convict beyond a reasonable 

doubt when the evidence consisted mainly of testimony by other 

participants in drug transactions, even though there were questions about 

the reliability and consistency of the accounts). 

 Mr. Mena Flores points to questions surrounding the government’s 

remaining witnesses. We need not consider these questions because a 

reasonable adjudicator could have relied on the statements by Mr. Skinner, 

Mr. Fuqua, and Mr. Garcia to find that Mr. Mena Flores had not satisfied 

his burden of persuasion. With credibility findings lying in the province 

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of the immigration judge, he could reasonably find that the evidence 

showed ineligibility for permanent residency because of criminal activity. 

b. Mr. Mena Flores’s Arguments 

Mr. Mena Flores makes six arguments in challenging the Board’s 

finding of ineligibility for permanent residency: 

1. The denial of the application to adjust status was a close call. 

2. The evidence tainted by governmental misrepresentations was 

not reasonable, substantial, or probative. 

3. Law enforcement officers never saw Mr. Mena Flores commit a 

 crime despite months of surveillance. 

4. His personal characteristics were inconsistent with criminal 

 behavior. 

5. Most members of the drug operation were unable to identify 

 Mr. Mena Flores as a participant. 

6. The government’s witnesses were unreliable. 

His arguments do not affect our conclusion that there was sufficient 

evidence for a reasonable adjudicator to conclude that Mr. Mena Flores had 

trafficked in drugs.20

 

20 Mr. Mena Flores argues that in the absence of a conviction, the 

Board of Immigration Appeals has upheld findings of inadmissibility only 

when there were other non-trafficking or controlled substance possession 

convictions, trafficking-related arrests, admissions to authorities, detection 

of drugs on the person, or observation by government officials. In support, 

Mr. Mena Flores cites a number of cases upholding findings of 

inadmissibility under these circumstances. But, Mr. Mena Flores does not 

cite any cases in which the Board of Immigration Appeals has invalidated a 

finding of inadmissibility without these kinds of proof. From Mr. Mena 

Flores’s listing of cases, we might infer that the present case is unique. 

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i. Close Call 

Mr. Mena Flores asserts that we should consider the closeness of the 

issue. We assume, for the sake of argument, that the underlying factual 

issue involves a close call. But, we must uphold the Board’s decision if 

there is sufficient evidence for a reasonable adjudicator to conclude that 

Mr. Mena Flores was involved in drug trafficking. 8 U.S.C. 

§ 1252(b)(4)(B). Thus, even if we determine that the immigration judge or 

the Board had inappropriately relied on certain evidence, we must uphold 

the findings if the remaining evidence would permit a reasonable factfinder to conclude that Mr. Mena Flores had trafficked in drugs. Because 

the evidence is sufficient, we reject Mr. Mena Flores’s argument. 

In evaluating the evidence, we find little guidance from existing case 

law. The case law involves a spectrum of facts on which circuit courts 

have affirmed or reversed an agency’s finding regarding a reason to 

believe that an alien had engaged in drug crimes. Mr. Mena Flores does 

not fall neatly on either side of the spectrum. 

On one side of the spectrum, there are cases in which courts have 

found a “reason to believe” the alien was engaged in criminality. Circuit 

courts have routinely upheld “reason-to-believe” findings when the alien 

● admits to the relevant crime, 

 

But, the listing of cases does not help us in deciding how to adjudicate this 

unique case. 

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● is directly observed with drugs by police, immigration, or 

 government officials, or 

● has a conviction for possession of a controlled substance or 

 another nontrafficking offense. 

See, e.g., Fernandez-Bernal v. Att’y Gen., 257 F.3d 1304, 1310-11 (11th 

Cir. 2001) (alien admitted to possessing cocaine, even though the 

underlying conviction was expunged); Cuevas v. Holder, 737 F.3d 972, 973 

(5th Cir. 2013) (car search revealed cocaine hidden in the rear panel); 

Nunez-Payan v. INS, 811 F.2d 264, 265-66 (5th Cir. 1987) (pleaded guilty 

to narcotics charge and received a probationary sentence of 32 months 

under a deferred adjudication statute); see also Appellant’s Opening Br. 

(Case No. 13-9532) at 27-34 (listing cases in which the Board of 

Immigration Appeals or a court has upheld reason-to-believe findings). 

On the other side of the spectrum are cases in which courts have 

reversed the agency’s “reason to believe” findings. These cases involve 

the Board’s reliance on 

● the fact that an arrest had been made without analyzing the 

 underlying circumstances, or 

● the presence of conclusory police reports that lack any 

 indication of criminality. 

See, e.g., Garces v. Att’y Gen., 611 F.3d 1337, 1350 (11th Cir. 2010) 

(reversing a finding of reason to believe based only on a vacated plea and 

some hearsay in police reports); Igwebuike v. Caterisano, 230 F. App’x 

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278, 283-85 (4th Cir. 2007) (reversing a finding of reason to believe that 

had been based solely on insubstantial, non-probative evidence). 

Our facts fall somewhere in the middle of this spectrum. Mr. Mena 

Flores has not admitted trafficking, has never been observed by law 

enforcement with drugs, and has no criminal record. On the other hand, 

the evidence against him is stronger than other cases in which a court has 

reversed the Board’s “reason to believe” findings. For example, the 

evidence here includes the statements of at least three participants in the 

trafficking organization. On balance, we conclude that the agency could 

reasonably determine that the facts create a reason to believe criminality 

despite the absence of circumstances frequently found in other cases. 

Thus, the agency did not err in concluding that Mr. Mena Flores had failed 

to meet his burden. 

ii. The Government’s Erroneous Statement

Mr. Mena Flores argues that the agency’s decision is tainted by a 

governmental misrepresentation. In its evidence, the Department of 

Homeland Security mistakenly attributed part of Mr. Fuqua’s account to 

Mr. Gary Smith. Based on this mistake, it appeared that Mr. Smith had 

implicated Mr. Mena Flores when Mr. Smith had not.21 Mr. Mena Flores 

 

21 The Department of Homeland Security notified the immigration judge 

of the mistake, but the judge still relied on the error. See R. (Case No. 13-

9605) at 1219. 

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argues this error is significant because of Mr. Smith’s role in the drug 

trafficking organization. 

The Board addresses this argument in Mr. Mena Flores’s subsequent 

motion to reconsider, concluding that the error was harmless because the 

evidence was cumulative. See pp. 39, 41, below. We agree with the 

Board’s conclusion expressed in its denial of the motion to reconsider. As 

we have stated, the remaining evidence permits the conclusion that Mr. 

Mena Flores trafficked in drugs. Therefore, this mistake does not require 

reversal of the Board’s denial of Mr. Mena Flores’s request for an 

adjustment in status. 

iii. No Eyewitness Testimony by Law Enforcement Officers

Mr. Mena Flores points out that no law enforcement officer ever saw 

him commit a crime despite months of surveillance. But, eyewitness 

testimony by law enforcement officers is not necessary to preclude 

eligibility for an adjustment in status. See 8 U.S.C. § 1182(a)(2)(C) 

(requiring only a “reason to believe”). The evidence need only be 

reasonable, substantial, and probative for the Board to have a reason to 

believe that Mr. Mena Flores was involved in drug-trafficking. See Matter 

of Rico, 16 I. & N. Dec. 181, 185 (1977) (requiring reasonable, substantial, 

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30 

and probative evidence when the burden was on the government). Because 

that evidence exists, we reject Mr. Mena Flores’s argument.22

iv. Personal Characteristics 

Mr. Mena Flores emphasizes that the circumstances of his personal 

life do not suggest criminality: He has no prior criminal record, did not 

have multiple telephone numbers, and kept a steady job. 

But, a reasonable adjudicator could find criminality notwithstanding 

this evidence. Our question is whether the evidence supports the agency’s 

determination that Mr. Mena Flores is ineligible for an adjustment in status 

based on involvement in drug-trafficking. The commendable aspects of his 

personal life do not preclude an agency from finding that Mr. Mena Flores 

failed to satisfy his burden of persuasion on the evidence of drug 

trafficking. 

 v. Not Identified by Most Members of the Drug Operation 

Mr. Mena Flores notes that most members of the drug operation did 

not identify him as a participant. But, some did, and their testimony 

provides sufficient evidence for the immigration judge to conclude that Mr. 

Mena Flores is not eligible to become a permanent resident. 

 

22 Mr. Mena Flores argues that despite the lengthy investigation, he was 

referenced in only a single set of surveillance notes and less than 0.02% of 

all calls. This argument bears on credibility of the witnesses linking Mr. 

Mena Flores to the drug ring. But, as discussed above, the agency could 

credit the witness testimony despite the infrequent references to Mr. Mena 

Flores. 

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vi. Unreliability of Witnesses 

Mr. Mena Flores also argues that the government’s witnesses are 

unreliable. By relying on the witnesses, the immigration judge implicitly 

found that the testimony of the governmental witnesses was reliable. See 

United States v. Toro-Pelaez, 107 F.3d 819, 825 (recognizing the district 

court’s implicit “resolution of credibility issues”). 

We have already addressed the reliability of the statements made by 

Mr. Fuqua, Mr. Skinner, and Mr. Garcia. For the sake of argument, we can 

assume that solid reasons exist to question the credibility of the three men. 

Despite these credibility issues, a reasonable fact-finder could rely on the 

witnesses’ statements. As a result, these statements require us to uphold 

the Board’s determination. 

5. Summary 

In summary, substantial evidence supports the Board’s determination 

that Mr. Mena Flores was inadmissible based on involvement in a drugtrafficking crime. 

IV. Review of the Motion to Reopen and Reconsider 

 We deny the petitions on the Board’s decisions to deny reopening 

and reconsideration. 

A. Jurisdiction 

We have subject matter jurisdiction to review the Board’s denial of 

Mr. Mena Flores’s motion to reopen and reconsider because both are final 

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orders. Infanzon v. Ashcroft, 386 F.3d 1359, 1361-62 (10th Cir. 2004); see 

also Khan v. Gonzales, 495 F.3d 31, 36 (2d Cir. 2007) (reviewing a motion 

to reconsider).23

 B. Motion to Reopen

Through a motion to reopen, an alien can request the Board to reopen 

his appeal in light of newly available evidence. Typically, “[a] motion to 

reopen seeks to present evidence that ‘is material and was not available 

and could not have been discovered or presented at the former hearing.’” 

Mahamat v. Gonzales, 430 F.3d 1281, 1283 n.3 (10th Cir. 2005) (quoting 8 

C.F.R. § 1003.2(c)(1)). But, an alien can also base a motion to reopen on 

available documents that had not been submitted because of counsel’s 

ineffectiveness. See Akinwunmi v. INS, 194 F.3d 1340, 1341 & n.2 (10th 

Cir. 1999) (per curiam). 

Mr. Mena Flores bases his motion to reopen on evidence that was not 

presented because of ineffective representation. The Board denied the 

motion to reopen, and we conclude that the decision fell within the Board’s 

discretion. 

 

23 The Department of Homeland Security argues that we lack subject 

matter jurisdiction over these motions because we lack jurisdiction over 

the petition addressing adjustment in status. But, as discussed above, we 

conclude we have jurisdiction over the agency’s decision to deny an 

adjustment in status. Because we conclude that we have jurisdiction over 

the petition addressing adjustment in status, we need not address the 

Department’s related jurisdictional challenge to the petitions involving 

reopening and reconsideration. 

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1. Burden to Show Ineffective Representation 

The Board of Immigration Appeals could reopen the proceedings only 

if Mr. Mena Flores showed that counsel was ineffective and the 

circumstances were egregious. Matter of Lozada, 19 I. & N. Dec. 637, 

638-39 (BIA 1988), overruled, Matter of Compean, 24 I. & N. Dec. 710 

(BIA 2009), vacated, 25 I. & N. Dec. 1 (BIA 2009). The legal 

representation was ineffective only if the attorney’s deficiencies were so 

prejudicial that the proceedings became fundamentally unfair. Akinwunmi, 

194 F.3d at 1341 n.2. 

2. Abuse of Discretion 

In rejecting Mr. Mena Flores’s claim of ineffective representation, 

we consider whether the agency abused its discretion. Pineda v. Gonzales, 

427 F.3d 833, 838 (10th Cir. 2003). The agency abused its discretion if it 

failed to give a rational explanation, inexplicably deviated from past 

policies, failed to supply any reasoning, or rested on summary or 

conclusory statements. Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th 

Cir. 2004). 

3. Mr. Mena Flores’s Arguments 

Mr. Mena Flores urges an abuse of discretion based on four aspects 

of the Board’s decision: 

1. summary dismissal of the argument involving the omission of 

 part of the criminal trial transcripts, 

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34 

2. failure to explain why Mr. Mena Flores’s character references 

 could not rebut specific evidence considered by the 

 immigration judge, 

3. a misstatement regarding the number of witnesses identifying 

 Mr. Mena Flores as a participant in the drug trafficking 

 organization, and 

4. failure to address Mr. Mena Flores’s contention that the 

 particular circumstances should lessen his burden of proving 

 actual prejudice. 

 

Under the abuse-of-the-discretion standard, our inquiry is whether the 

Board provided a rational explanation or rested on conclusory statements. 

We conclude the explanation was rational. 

a. Trial Transcripts 

Mr. Mena Flores bears the burden to prove that 

● his counsel’s failure to introduce the trial transcripts rendered 

 the legal representation ineffective, and 

● the ineffectiveness caused enough prejudice to make the 

 proceedings fundamentally unfair. 

Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003). The 

ineffectiveness prong requires “egregious circumstances,”24 and the 

prejudice prong requires a “reasonable likelihood” that the outcome would 

have been different but for counsel’s deficient performance.25

 

24 Osei v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002) (quoting Stroe v. 

INS, 256 F.3d 498, 501 (7th Cir. 2001)). 

25 United States v. Aguirre-Tello, 353 F.3d 1199, 1208-09 (10th Cir. 

2004). 

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The Board concluded that it was not egregious for Mr. Mena Flores’s 

prior counsel to withhold the trial transcripts. Because the transcripts 

include evidence damaging to Mr. Mena Flores, the Board determined that 

Mr. Mena Flores’s prior counsel probably made a strategic decision on 

which parts to offer. An attorney’s objectively reasonable tactical 

decisions do not qualify as ineffective assistance. Hooper v. Mullin, 314 

F.3d 1162, 1169-70 (10th Cir. 2002). So, the Board determined that Mr. 

Mena Flores’s attorney was not ineffective by failing to submit the 

transcripts. 

Mr. Mena Flores argues that the Board abused its discretion, 

claiming that his attorney could not have made a strategic decision because 

he had not even read the transcripts. But, Mr. Mena Flores provides no 

evidence that the attorney failed to read the transcripts. 

In addition to concluding that Mr. Mena Flores’s attorney did not fail 

to provide effective representation, the Board concluded that the failure to 

submit the transcripts was not prejudicial. Mr. Mena Flores claims the 

Board failed to analyze how the transcripts could have damaged the 

credibility of the government’s witnesses. For example, Mr. Mena Flores’s 

trial counsel testified that 

● jurors stated after the trial that they had not believed the 

 prosecution’s witnesses because they testified inconsistently 

 and had strong reasons to lie, 

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36 

● some witnesses had provided substantial help to the prosecution 

 and agreed to cooperate in exchange for reductions in their 

 sentences, 

● an employer had testified that Mr. Mena Flores was a good 

 employee, 

● Mr. Mena Flores’s brother (Santiago) had admittedly made the 

 telephone calls from Mr. Mena Flores’s telephone, and 

● none of the surveillance showed activity by Mr. Mena Flores. 

R. (Case No. 13-9605) at 1224-30, 1233. 

 Mr. Mena Flores overstates the significance of the trial transcripts. 

The Board and the immigration judge already knew about the prosecution’s 

difficulty in obtaining the conviction and the impeachment of the 

government’s witnesses. 

The transcripts contain at least some information that could have 

proven damaging to Mr. Mena Flores. At the criminal trial, the 

prosecution presented testimony by Mr. Skinner and Mr. Fuqua. After 

hearing their testimony on direct examination and cross examination, Mr. 

Mena Flores’s attorney moved for a judgment of acquittal. R. (Case No. 

13-9605) at 706-07. The trial judge denied the motion, concluding that “a 

reasonable juror could conclude that Mr. Mena Flores [was] guilty.” Id. at 

708. 

In the removal proceedings, the agency had not only the accounts by 

Mr. Skinner and Mr. Fuqua, but also the account of Mr. Benito Garcia. 

Unlike the district court, the agency did not have to decide whether 

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37 

someone could find beyond a reasonable doubt that Mr. Mena Flores was 

guilty of distribution of a controlled substance, conspiracy, or possession 

of a controlled substance. The question before the agency was merely 

whether there was “reason to believe” Mr. Mena Flores had trafficked in 

drugs. 

The full transcripts might have allowed the agency to rely on the trial 

judge’s assessment of the evidence. After hearing that evidence, the trial 

judge stated that a reasonable jury could conclude beyond a reasonable 

doubt that Mr. Mena Flores had committed the crimes. And, he drew that 

conclusion with less evidence than the immigration judge had. Under these 

circumstances, a full copy of the trial transcript might have strengthened 

the immigration judge’s resolve to find a “reason to believe” that Mr. 

Mena Flores was a drug trafficker. 

The Board’s decision was supported by a clear rationale, did not 

depart from established policies, and applied a correct interpretation of the 

law. Thus, we hold that the Board did not abuse its discretion in declining 

to reopen the proceedings based on counsel’s alleged failure to use the full 

trial transcript. 

b. Character References 

Mr. Mena Flores claims that his attorney acted egregiously in failing 

to present letters attesting to good character. In his brief to the Board, Mr. 

Mena Flores claimed that the statements of his friends, family, and coAppellate Case: 13-9605 Document: 01019374856 Date Filed: 01/23/2015 Page: 37 
38 

workers would have rebutted the statements of the adverse witnesses. The 

desired letters would have depicted Mr. Mena Flores as an honest, 

hardworking man, whose family is his first priority. 

The Board dedicated less than one sentence to the letters. But, in 

that sentence, the Board concluded that the character references failed to 

rebut the information considered by the immigration judge. The brevity of 

this explanation does not establish an abuse of discretion. Infanzon v. 

Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004). 

The Board could reasonably conclude that the character evidence did 

not rebut the evidence relied on by the immigration judge.26 As a result, 

the attorney’s failure to present character evidence did not require the 

Board to grant the motion to reopen. 

c. Statement of Gary Smith 

As discussed previously, the Department of Homeland Security 

misattributed a statement made by Mr. Fuqua to both Mr. Fuqua and Mr. 

Smith. This error suggested that five witnesses had implicated Mr. Mena 

 

26 Mr. Mena Flores argues that the evidence relied on by the 

immigration judge was just as general as the evidence of good character. 

We may assume, for the sake of argument, that he is correct. Nonetheless, 

the Board of Immigration Appeals could reasonably conclude that the 

character references did not rebut the evidence relied on by the 

immigration judge. 

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Flores when only four witnesses had done so.27 In ruling on Mr. Mena 

Flores’s motion to reopen, the Board stated: “There were at least five 

informants or witnesses who stated that [Mr. Mena Flores] served as a 

‘runner’ for [Santiago], and the statements were consistent and 

corroborative.” R. (Case No. 13-9605) at 123. Mr. Mena Flores argues 

that the Board’s factual mistake entails an abuse of discretion. We 

disagree. 

 When Mr. Mena Flores subsequently asked the Board to reconsider 

its denial of the motion to reopen, he also argued that the Board’s factual 

mistake was fatal. In denying the motion to reconsider, the Board 

determined that the mistake was harmless because the erroneous evidence 

was cumulative of other evidence. R. (Case No. 13-9605) at 4. 

 The Board was ideally suited to say how it would have decided if it 

had known there were only four witnesses rather than five. After all, the 

Board would have known how it would have ruled with the correct 

information. Thus, the Board had the discretion to decline to reopen the 

proceedings based on its earlier mistake. 

 

27 Mr. Mena Flores also argues that Mr. Garcia never saw any alleged 

acts of criminality by Mr. Mena Flores. But, as will be discussed below, 

the Board did not say there were four eye-witnesses; the Board merely said 

that there were four witnesses implicating Mr. Mena Flores in drug crimes. 

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40 

d. Unaddressed Evidentiary Burden 

In his motion to reopen, Mr. Mena Flores argued his case should be 

reopened even if he disputed only a few pieces of evidence relied on by the 

immigration judge. He explained that his case contained less direct 

evidence than others in which the Board had sustained “reason to believe” 

findings. The Board did not address this argument, and Mr. Mena Flores 

claims that the Board had a duty to explain why the typical evidentiary 

burden would apply. 

We disagree. The Board’s obligation is to “‘consider the issues 

raised . . . and announce its decision in terms sufficient to enable a 

reviewing court to perceive that it has heard and thought and not merely 

reacted.’” Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir. 1987) 

(quoting Osuchukwu v. INS, 744 F.3d 1136, 1142-43 (5th Cir. 1984)). This 

obligation does not require the Board to “‘expressly parse or refute on the 

record’ each individual argument . . . offered by the petitioner.” Wang v. 

BIA, 437 F.3d 270, 275 (2d Cir. 2006) (quoting Xian Ji Chen v. Dep’t of 

Justice, 434 F.3d 144, 160 n.13 (2d Cir. 2006)). Thus, the Board had no 

obligation to say why the typical standard applied and we decline to 

reverse the Board’s decision on this ground. 

C. Motion to Reconsider 

 “A motion to reconsider . . . is available to raise errors of fact or law 

committed by the [Board] in its prior decision.” Mahamat v. Gonzales, 430 

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F.3d 1281, 1283 n.3 (10th Cir. 2005); see 8 C.F.R. § 1003.2(b)(1). Mr. 

Mena Flores asked the Board to reconsider its denial of his motion to 

reconsider, arguing that the Board had affirmed the immigration judge’s 

findings based in part on a factual error. 

 The Board relied on the immigration judge’s statements that “[t]here 

were at least five informants or witnesses” who implicated Mr. Mena 

Flores in the trafficking organization. R. (Case No. 13-9605) at 3. In fact, 

there were only four witnesses. The Board denied the motion to 

reconsider, deciding that the evidence in error “was cumulative to other 

consistent and corroborative evidence.” Id. at 4; see pp. 29, 39, above. 

The Board then listed the other evidence, concluding that it was sufficient. 

 Mr. Mena Flores argues that the Board abused its discretion by 

making new factual mistakes and by making impermissible factual 

findings. We conclude that the Board did not abuse its discretion in 

denying the motion to reconsider. 

1. Factual Errors 

 In denying the motion to reconsider, the Board made two statements 

that Mr. Mena Flores characterizes as inaccurate: 

 1. There had been four witnesses to Mr. Mena Flores’s 

 criminality. 

 2. Mr. Richard Clark had identified a picture of Mr. Mena Flores. 

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 Mr. Mena Flores argues the first statement constitutes error because 

there were not four “eye-witnesses to his criminality.” Appellant’s 

Opening Br. (Case Nos. 13-9584 & 13-9605) at 50 (emphasis added). This 

argument is based on the fact that Mr. Garcia, one of the witnesses, never 

saw Mr. Mena Flores participate in trafficking. But, the Board did not say 

there were four eye-witnesses; it said merely that there were four witnesses 

implicating Mr. Mena Flores in drug crimes. Mr. Garcia was a witness 

because he had made statements indicating that he was aware of Mr. Mena 

Flores’s participation in the drug trafficking organization. Thus, there 

were four witnesses, even if not all of them were eye-witnesses, and the 

Board did not err in saying there were four witnesses. 

 In addition, Mr. Mena Flores argues that he was never identified by 

Mr. Clark. But, Mr. Clark identified Mr. Mena Flores through a 

photograph as an individual who had been present at a drug transaction. R. 

(Case No. 13-9532) at 394. 

 As Mr. Mena Flores argues, Mr. Clark gave the wrong nickname for 

Mr. Mena Flores. Id. But, Mr. Clark’s mistake goes to the reliability of 

the identification; it does not change the fact that Mr. Clark identified Mr. 

Mena Flores (through a photograph) as someone involved in the drug 

organization. Thus, the Board’s characterization of Mr. Clark’s account 

was accurate. 

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 Even if the Board had made factual errors, the record contains 

sufficient evidence for a reasonable adjudicator to conclude that Mr. Mena 

Flores participated in drug trafficking. Therefore, the alleged errors would 

not have compelled the Board to grant the motion to reconsider. 

2. Impermissible Fact-Finding 

 Mr. Mena Flores adds that the Board should have granted the motion 

to reconsider and ordered a remand to the immigration judge once the 

Board determined that there were not five witnesses. In Mr. Mena Flores’s 

view, the Board’s analysis entailed impermissible fact-finding. See 8 

C.F.R. § 1003.1(d)(3)(iv). 

 The Board did not err. It merely determined that the remaining facts 

would have led to the same result even without the mistake over the 

number of witnesses. Thus, we reject Mr. Mena Flores’s argument that the 

Board engaged in impermissible fact-finding. 

 We conclude that the Board did not abuse its discretion in denying 

Mr. Mena Flores’s motion to reconsider. 

V. Conclusion 

 Mr. Mena Flores bears the burden to establish that there was no 

reason to believe that he had been a drug trafficker and that the Board 

abused its discretion by denying his motions to reopen and reconsider. 

He has failed to satisfy his burdens. Thus, we deny the petitions for 

review. 

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