Mena-Flores v holder

Mena-Flores applied for adjustment of status based on is marriage to a United States Citizen. The immigration judge found there was reason to believe Mena-Flores participated in drug trafficking and denied relief. The immigration board affirmed and the panel also affirmed. It held there was jurisdiction to hear the appeal as 8 USC 1252 is ambiguous regarding what “is removable” means and reviewing cases is consistent with principles to error on the side of aliens and to review administrative action and the government here sought removal based on undocumented status not drug trafficking . The panel noted that Mena-Flores was acquitted of drug trafficking charges and thus provisions about convicted felons did not apply nor were there any discretionary acts by the immigration judge as the only determination were eligibility which were mandatory. The panel held Mena-Flores failed to disprove reason to believe given four members of the conspiracy identified him as a participant and this evidence was not rebutted even though this was a close case and no law enforcement officer saw Mena-Flores with drugs. The panel also affirmed denial of Mena-Flores motion to reopen as trail counsel had sound reasons not to enter the whole criminal trial transcript and the character evidence proffered was insufficient to overcome the evidence supporting the reason to believe. The panel noted there was a factual error as to the number witnesses against Mena-Flores, but, the board properly found this error harmless as the true number of witnesses was not a relevant factor in its decision.