NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MISAEL FLORES-MARTINEZ, No. 18-72304 Petitioner, Agency No. A208-939-643 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 5, 2020** Seattle, Washington Before: GOULD, BEA, and MURGUIA, Circuit Judges. Misael Flores-Martinez (“Flores-Martinez”), a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’s (“BIA”) dismissal of his appeal from an immigration judge’s (“IJ”) entry of a final order of removal. Flores-Martinez challenges the agency’s determination that he is inadmissible and * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). consequently statutorily ineligible for cancellation of removal, and further argues that his case required the review of a three-member panel of the BIA. We have jurisdiction to determine whether the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., bars our review of the removal order. See 8 U.S.C. § 1252(a)(2)(C) (“[Absent specified exceptions] no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in [8 U.S.C. §] 1182(a)(2) . . . .”); Lopez–Molina v. Ashcroft, 368 F.3d 1206, 1208 (9th Cir. 2004) (“This court determines for itself whether [petitioner’s] case falls within the parameters of this jurisdiction-stripping provision. In other words, we have jurisdiction to consider our own jurisdiction.”). We review for substantial evidence the agency’s determination that there is “reason to believe” Flores-Martinez is or has been an illicit trafficker in any controlled substance and is therefore inadmissible. 8 U.S.C. § 1182(a)(2)(C)(i); Alarcon–Serrano v. I.N.S., 220 F.3d 1116, 1119 (9th Cir. 2000). The BIA’s determination must be upheld unless “the evidence compels a contrary conclusion.” Alarcon-Serrano, 220 F.3d at 1119. The test is not whether “a generous fact-finder might have believed [petitioner’s] version of the facts.” Id. at 1120. Notwithstanding the above-mentioned limitation on our jurisdiction, we retain jurisdiction to review de novo questions of law. See 8 U.S.C. § 1252(a)(2)(D); Chavez-Reyes v. Holder, 741 F.3d 1, 3 (9th Cir. 2014). We dismiss 2 in part and deny in part the petition for review. 1. Unlike many other grounds for inadmissibility and removability, 8 U.S.C. § 1182(a)(2)(C)(i) does not require a conviction for an alien to be deemed inadmissible or removable. Lopez-Molina, 368 F.3d at 1209. Rather, the agency’s determination need be supported only by “reasonable, substantial, and probative evidence.” Alarcon–Serrano, 220 F.3d at 1119 (citing Hamid v. I.N.S., 538 F.2d 1389, 1390–91 (9th Cir. 1976)). Here, the BIA’s determination that there was “reason to believe” that Flores- Martinez was involved in drug trafficking rests on reasonable, substantial, and probative evidence. The government introduced a declaration, signed under penalty ...
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