On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A079-658-197
The opinion of the court was delivered by: Paez, Circuit Judge:
Argued and Submitted February 17, 2012-San Francisco, California
Before: Procter Hug, Jr., Betty B. Fletcher, and Richard A. Paez, Circuit Judges.
The Board of Immigration Appeals' (BIA or Board) governing regulations limit its scope of review of an immigration judge's (IJ) factual findings. Under 8 C.F.R. § 1003.1(d)(3)(i), (iv), the BIA may only review findings of fact for clear error, and is prohibited from making its own factual determinations. In this petition for review, which arises in the context of allegations of drug smuggling, we consider whether the Board exceeded these limitations when it reversed the IJ's determination that petitioner Rene Lopez-Rodriguez was admissible and concluded instead that Lopez-Rodriguez was inadmissible under 8 U.S.C. § 1182(a)(2)(C). Because we conclude that the Board committed legal error by making its own factual determination and engaging in de novo review of the IJ's factual findings, we grant the petition and remand for further proceedings.
Rene Lopez-Rodriguez is a native and citizen of Mexico. In 2006, he was working as a "runner" or supplier for ships in Puerto Penasco, Sonora, a fishing and resort town located on the Gulf of California.*fn1 He had been working for the same employer for two years. His employer would regularly send him to a particular store in Phoenix, Arizona to pick up various parts for ships. According to Lopez-Rodriguez's testimony, he had been using his employer's 2000 Dodge Ram 1500 series pickup truck to make these trips for approximately three months prior to the incident at issue in this case.
On July 22, 2006, Lopez-Rodriguez picked up the Dodge truck from his employer in the morning, and drove to the border crossing at Lukeville, Arizona. His destination was Phoenix, where he planned to exchange old ship motor pistons for new ones and to have the tires on the truck replaced. The truck's gas gauge indicated that the gas tank was full when Lopez-Rodriguez picked up the truck. Lopez-Rodriguez testified that he did not refill the tank during the approximately 60-mile drive from Puerto Penasco to the Lukeville port of entry.
Upon arrival at the port of entry, Lopez-Rodriguez and his truck were inspected by Customs and Border Protection (CBP) officers Sergio Ballesteros, Jr. and Ivan Gonzalez. Lopez-Rodriguez told the officers that he was going to Phoenix to pick up pistons, that the truck belonged to his boss, and that he had nothing to declare for customs. The officers then inspected the truck by tapping the gas tank with a brass rod and found that the tank "tapped abnormally hard," which is often a signal that something solid is inside the tank. After being questioned a second time, Lopez-Rodriguez again stated that he had no items to declare. At that point, the officers escorted Lopez-Rodriguez from his truck to a nearby office, where he was detained while Officer Gonzalez conducted a secondary inspection of the truck. According to the officers, Lopez-Rodriguez was "calm" during this entire period.
Officer Gonzalez drove the Dodge truck from the primary inspection lanes to the secondary inspection area. He testified that the gas gauge needle indicated that the tank was full. After using a fiber optic scope to determine that there were packages inside the gas tank, Officer Gonzalez put Lopez-Rodriguez into a detention cell. At that point, Lopez-Rodriguez asked why he was being detained and Officer Gonzalez told him that he had found drugs inside the truck. Lopez-Rodriguez testified that he was not aware of the presence of drugs in the truck until that moment, and that he "couldn't believe it." He remained calm and was silent upon hearing this news, because he "didn't know what to say" and "couldn't think of anything."
Officer Gonzalez then removed the gas tank from the truck and removed the sending unit from the tank to gain access to the tank's interior, where he found 46 vacuum-sealed packages of marijuana. They weighed, in total, approximately 46 kilograms or 101 pounds. According to Officer Gonzalez, the gas tank was "very full" of gas and "fuel was spilling out" when he removed the sending unit.
At Lopez-Rodriguez's merits hearing, Officer Gonzalez testified that, based upon his experience, the truck's gas tank had a capacity of approximately 30 gallons. He also testified that he estimated that the marijuana took up "[p]robably 25 gallons, leaving about 5 gallons of fluid that can be inside the gas tank with-along with the contraband." Officer Gonzalez opined that "[i]f the gas tank was reading properly and if it was full, by the time he got from [Puerto Penasco] to [Lukeville], [the gas gauge] would have read empty," and Lopez-Rodriguez "would have had to refuel again."
Upon further questioning by the IJ, Officer Gonzalez clarified that his statement that there was room for five gallons of fuel in the gas tank was "a rough estimate" and that there might have been room for between four and six gallons. He stated that he based the estimate on "how much I have to syphon out, [and] how long it takes me." The amount of fuel in the truck's gas tank was never actually measured. When the IJ asked Lopez-Rodriguez to respond to Officer Gonzalez's conclusions, Lopez-Rodriguez said, "But, it is the truth. I didn't fill up with gas."
Lopez-Rodriguez was paroled into the United States to face immigration and criminal charges following his initial detention at the Lukeville port of entry. However, no criminal charges were ever filed against Lopez-Rodriguez in connection with this incident. Subsequently, he was charged with being ineligible for admission because there was "reason to believe" that he was or had been an illicit trafficker of a controlled substance, or because he was or had been "a knowing assister, abettor, conspirator, or colluder with others in the illicit trafficking [of a] controlled substance" in violation of INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C).
Lopez-Rodriguez proceeded pro se in his hearings before the IJ.*fn2 At his second master calendar hearing, Lopez- Rodriguez admitted the charges against him, but at his removal hearing he explained that he had done so in order "to go faster to Mexico" where his children were in school and needed his salary to pay their educational expenses. At all of his appearances before the IJ, Lopez-Rodriguez expressed a desire to have a hearing immediately so that he could return to Mexico as quickly as possible.
Three witnesses-Lopez-Rodriguez, Officer Ballesteros, and Officer Gonzalez-testified at the removal hearing, and the IJ found all three to be credible. In fact, the IJ ended his oral decision by noting that Lopez-Rodriguez "has maintained steadfastly that he had no knowledge that there was marijuana in the vehicle at any time," and then stated, "I believe him."
The IJ summarized the case by explaining that it "all comes down to whether [Lopez-Rodriguez] is stating falsely that he refueled between Puerto Penasco and the Port of Entry at Lukeville, Arizona." Concluding that "it may very well be true that the applicant did not put gas in the vehicle prior to getting to the Port of Inspection in Lukeville," and that Lopez-Rodriguez "was used by his employer or by somebody unbeknownst to his employer" to transport the marijuana, the IJ found that there was no "reason to believe" that Lopez-Rodriguez "is an elicit [sic] trafficker in a controlled substance or knowingly aided, abetted, colluded, et cetera." Lopez-Rodriguez was admitted into the United States as a visitor until September 18, 2006, four days after the date of the hearing and decision. Lopez-Rodriguez remained detained during the appeals process, however, and was removed to Mexico at some point following the BIA's first decision reversing the IJ.
The government appealed the IJ's ruling to the BIA, challenging the IJ's finding that there was "no reason to believe" that Lopez-Rodriguez had trafficked in a controlled substance. The BIA reversed the IJ twice. In its first decision, dated February 17, 2007, the BIA reversed the IJ because Lopez- Rodriguez's "credibility is undermined by the fact that such a large amount of marijuana-over 100 pounds-was found concealed in the truck and his implausible story that he traveled from Puerto Penasco to the Arizona border on only 5 gallons of gas and arrived at the port of entry with a full tank." Lopez-Rodriguez petitioned for review of that decision with this court. Subsequently, the government filed a motion to remand the case to the BIA, explaining that "notwithstanding its reference to the 'clear error' standard, the Board may have engaged in de novo review of the [IJ]'s fact-findings, something that 8 C.F.R. § 1003.1(d)(3)(i) prohibits." We granted the motion and remanded the case to the BIA.
On remand, the BIA again reversed the IJ in a decision dated March 17, 2008. In its order, the BIA specifically stated that it had been directed to re-evaluate its earlier decision under the clear error standard, and further wrote that it was "mindful that [it is] not to engage in de novo review of facts determined by the [IJ]." Noting that the IJ had found Officer Gonzalez credible and that Officer Gonzalez had "significant experience inspecting cars at the border," and asserting that Lopez-Rodriguez had contradicted himself in his testimony, the BIA, "upon consideration of the evidence and testimony of record," concluded that it was "left with the definite and firm conviction" that the IJ's decision to admit him was "clearly erroneous." In particular, the Board "f[ou]nd it impossible to accept the [IJ]'s conclusion that the applicant testified credibly."
The BIA explained its decision by discussing in detail Officer Gonzalez's testimony, in particular the estimates that Officer Gonzalez provided of the space available in the gas tank and the amount of gas removed from the tank during his inspection of the truck. The BIA also noted that Officer Gonzalez had "concluded that [Lopez-Rodriguez] could not have driven the distance from Puerto Penasco to the border without refueling and still have 4 to 6 gallons of gas filling up the tank."
As to Lopez-Rodriguez's credibility, the BIA concluded that the IJ ignored a contradiction in his testimony. According to the BIA, "the applicant first testified that his employer had never asked him to drive the employer's truck into the United States to pick up supplies before. Yet, he later testified that he had driven his employer's truck to the United States very often, as much as every week, in the 3 months before he was arrested at the border."
The BIA also concluded that the IJ erred by finding no "reason to believe" that Lopez-Rodriguez was an illicit trafficker because the standard for inadmissibility under INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C) is "quite low" and is analogous to the probable cause standard.
Lopez-Rodriguez timely petitioned for review, arguing primarily that the BIA violated 8 C.F.R. § 1003.1(d)(3) by engaging in prohibited de novo review, and arguing in passing that the Board improperly equated the regulation's "reason to believe" standard to the probable cause standard. Although we grant the petition, we do not address the latter issue.
Where the BIA conducts its own review of the evidence and law, rather than adopting the IJ's decision, our "review 'is limited to the BIA's decision, except to the extent the IJ's opinion is expressly adopted.' " Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000)).
We have jurisdiction over questions of law pursuant to 8 U.S.C. § 1252(a)(2)(D), and we review de novo the BIA's determinations of questions of law and its legal conclusions. Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). Whether the BIA has applied the correct standard of review is a question of law. Arteaga v. I.N.S., 836 F.2d 1227, 1228 (9th Cir. 1988), abrogated on other grounds by I.N.S. v. Elias- Zacarias, 502 U.S. 478 (1992); see also Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006) (holding that the court "can determine whether the BIA applied the correct legal standard in making its determination"), overruled on other grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1160 n.15 (9th Cir. 2008) (en banc).
 BIA regulations prohibit the Board from "engag[ing] in de novo review of findings of fact determined by an [IJ]." 8 C.F.R. § 1003.1(d)(3)(i); see also Brezilien v. Holder, 569 F.3d 403, 413 (9th Cir. 2009) (noting that "where the IJ has made a factual finding, the BIA has very limited authority to revisit that finding"). Instead, "[f]acts determined by the [IJ], including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the [IJ] are clearly erroneous." § 1003.1(d)(3)(i) (emphasis added). Where the BIA engages in de novo review of an IJ's factual findings instead of limiting its review to clear error, it has committed an error of law, as our sister circuits have recognized, and we have no difficulty in agreeing with that conclusion. See, e.g., Turkson v. Holder, 667 F.3d 523, 528 (4th Cir. 2012) (holding that "the BIA committed error as a matter of law because it failed to apply the appropriate standard of review"); Chen v. Bureau of Citizenship and Immigration Serv., 470 F.3d 509, 515 (2d Cir. 2006) (holding that the BIA's independent credibility assessment amounted to "de novo review and constitutes legal error by the BIA requiring remand"). We do not rely on the Board's invocation of the clear error standard; rather, when the issue is raised, our task is to determine whether the BIA faithfully employed the clear error standard or engaged in improper de novo review of the IJ's factual findings.*fn3
 Where the IJ has not made a finding of fact on a disputed matter, and such a finding is necessary to resolution of the case, the BIA must remand to the IJ to make the required finding; it may not conduct its own fact-finding. 8 C.F.R. § 1003.1(d)(3)(iv); Brezilien, 569 F.3d at 413 (concluding that the regulation unambiguously "requires the BIA to remand the factual inquiry to the IJ rather than making its own factual finding on the matter"); see also Padmore v. Holder, 609 F.3d 62, 69 (2d Cir. 2010) ("The IJ did not find facts with respect to this incident. If the BIA continues to believe that factfinding on these issues is necessary for an appropriate exercise of discretion, it should remand to the IJ for that ...