Rene Lopez Rodriguez v. Eric H. Holder Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RENE LOPEZ RODRIGUEZ, 

Petitioner,

No. 08-71481

v.

 Agency No.

ERIC H. HOLDER, Jr., Attorney A079-658-197

General,

Respondent.



RENE LOPEZ RODRIGUEZ, 

Petitioner, No. 08-73353

v.

 Agency No.

A079-658-197

ERIC H. HOLDER, Jr., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 17, 2012—San Francisco, California

Filed June 27, 2012

Before: Procter Hug, Jr., Betty B. Fletcher, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

7573

7576 RODRIGUEZ v. HOLDER

COUNSEL

Daniel M. Kowalski, The Fowler Law Firm, PC, Austin,

Texas, for petitioner Rene Lopez-Rodriguez.

Tracey N. McDonald (argued), Gregory G. Katsas, Assistant

Attorney General, Blair T. O’Connor, Assistant Director,

Edward C. Durant, United States Department of Justice,

Washington, D.C., for respondent Eric H. Holder, Jr., Attor-

ney General.

OPINION

PAEZ, Circuit Judge:

The Board of Immigration Appeals’ (BIA or Board) gov-

erning 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 alle-

gations of drug smuggling, we consider whether the Board

exceeded these limitations when it reversed the IJ’s determi-

nation 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 deter-

mination and engaging in de novo review of the IJ’s factual

findings, we grant the petition and remand for further pro-

ceedings.

I.

Rene Lopez-Rodriguez is a native and citizen of Mexico.

In 2006, he was working as a “runner” or supplier for ships

in Puerto Peñasco, Sonora, a fishing and resort town located

RODRIGUEZ v. HOLDER 7577

on the Gulf of California.1 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 vari-

ous parts for ships. According to Lopez-Rodriguez’s testi-

mony, he had been using his employer’s 2000 Dodge Ram

1500 series pickup truck to make these trips for approxi-

mately 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 bor-

der crossing at Lukeville, Arizona. His destination was Phoe-

nix, 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 testi-

fied that he did not refill the tank during the approximately

60-mile drive from Puerto Peñasco 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 Phoe-

nix 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 offi-

cers escorted Lopez-Rodriguez from his truck to a nearby

office, where he was detained while Officer Gonzalez con-

ducted a secondary inspection of the truck. According to the

1

This factual summary is drawn from testimony by Lopez-Rodriguez

and two Customs and Border Protection officers at his inadmissibility

hearings, and from factual findings made by the IJ.

7578 RODRIGUEZ v. HOLDER

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 Gon-

zalez told him that he had found drugs inside the truck.

Lopez-Rodriguez testified that he was not aware of the pres-

ence 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 pack-

ages 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 Peñasco] 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 clari-

fied that his statement that there was room for five gallons of

RODRIGUEZ v. HOLDER 7579

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.”

II.

Lopez-Rodriguez was paroled into the United States to face

immigration and criminal charges following his initial deten-

tion at the Lukeville port of entry. However, no criminal

charges were ever filed against Lopez-Rodriguez in connec-

tion 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 con-

trolled 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.2 At his second master calendar hearing, Lopez-

2

Lopez-Rodriguez appeared a total of three times before the IJ. His first

master calendar hearing was a group advisement of rights on August 17,

2006. The IJ continued Lopez-Rodriguez’s case after Lopez-Rodriguez

stated that he wanted to seek counsel, although he also said that if his case

were to be postponed then he would waive his right to counsel. His next

appearance before the IJ was at a second master calendar hearing on

August 24, 2006, at which Lopez-Rodriguez testified that he did not know

that there was marijuana in the truck’s gas tank until CBP officers told

him as much at the Lukeville port of entry. The IJ continued the case to

allow the government to call other witnesses and to ask Lopez-Rodriguez

more extensive questions. Lopez-Rodriguez’s final appearance before the

IJ occurred at his removal hearing on September 14, 2006. At the removal

hearing, the IJ heard further testimony from Lopez-Rodriguez and testi-

mony from CBP officers Ballesteros and Gonzalez.

7580 RODRIGUEZ v. HOLDER

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 Peñasco 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 sub-

stance or knowingly aided, abetted, colluded, et cetera.”

Lopez-Rodriguez was admitted into the United States as a vis-

itor 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, chal-

lenging 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 Feb-

ruary 17, 2007, the BIA reversed the IJ because Lopez-

RODRIGUEZ v. HOLDER 7581

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 trav-

eled from Puerto Peñasco to the Arizona border on only 5 gal-

lons 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, some-

thing 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 Offi-

cer Gonzalez’s testimony, in particular the estimates that Offi-

cer 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 Gon-

zalez had “concluded that [Lopez-Rodriguez] could not have

driven the distance from Puerto Peñasco to the border without

refueling and still have 4 to 6 gallons of gas filling up the

tank.”

7582 RODRIGUEZ v. HOLDER

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 traf-

ficker 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 pri-

marily 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.

III.

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-

RODRIGUEZ v. HOLDER 7583

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).

[1] 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 recog-

nized, and we have no difficulty in agreeing with that conclu-

sion. 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.3

3

Several of our sister circuits have remanded cases to the agency where

the BIA, although invoking the “clear error” standard of review, actually

engaged in prohibited de novo review or fact-finding. See, e.g., Alvarado

de Rodriguez v. Holder, 585 F.3d 227, 235 (5th Cir. 2009) (“Quite simply,

the BIA is not entitled to state the correct legal standard but actually apply

7584 RODRIGUEZ v. HOLDER

[2] Where the IJ has not made a finding of fact on a dis-

puted 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 factfind-

ing on these issues is necessary for an appropriate exercise of

discretion, it should remand to the IJ for that purpose.”).

Where the BIA fails to follow its own regulations and makes

factual findings, “it commits an error of law, which we have

jurisdiction to correct.” Padmore, 609 F.3d at 67.

IV.

A.

[3] The BIA may find an IJ’s factual finding to be clearly

erroneous if it is “illogical or implausible,” or without “sup-

port in inferences that may be drawn from the facts in the

record.” Anderson v. Bessemer City, 470 U.S. 564, 577

(1985); see also United States v. Hinkson, 585 F.3d 1247,

1262 (9th Cir. 2009) (en banc).4

an incorrect standard.”); Kabba v. Mukasey, 530 F.3d 1239, 1246 (10th

Cir. 2008) (“Although the BIA’s opinion set forth the correct standard of

review and recited a conclusion that the IJ’s credibility findings were

clearly erroneous, the BIA did not apply this deferential standard in sub-

stance.”); Chen, 470 F.3d at 515 (“Although the BIA used the phrase

‘clearly erroneous’ in its opinion, the review it conducted in fact was to

independently assess Chen’s credibility without giving deference to the

findings of the IJ. This is de novo review . . . .”). We apply the same scru-

tiny here to the BIA’s assertions that it reviewed the IJ’s decision for clear

error.

4

We relied heavily on Anderson in our discussion of abuse of discretion

in Hinkson, quoting directly from the opinion in our formulation of this

RODRIGUEZ v. HOLDER 7585

[4] The Supreme Court’s opinion in Anderson is extremely

helpful to our understanding of the limits on the BIA when it

reviews the IJ’s factual findings for clear error. In fact, the

Department of Justice cited Anderson in the explanatory com-

ments that it issued to accompany the new regulations adopt-

ing the clear error standard of review, and concluded that “[a]

factfinding may not be overturned simply because the Board

would have weighed the evidence differently or decided the

facts differently had it been the factfinder.” Board of Immi-

gration Appeals: Procedural Reforms to Improve Case Man-

agement, 67 Fed. Reg. 54,878, 54,889 (Aug. 26, 2002) (citing

Anderson, 470 U.S. at 573).

Anderson provides important guidance on the purpose and

limits of the clear error standard:

Th[e clear error] standard plainly does not entitle a

reviewing court to reverse the finding of the trier of

fact simply because it is convinced that it would

have decided the case differently. The reviewing

court oversteps the bounds of its duty . . . if it under-

takes to duplicate the role of the lower court. . . . If

the district court’s account of the evidence is plausi-

ble in light of the record viewed in its entirety, the

court of appeals may not reverse it even though con-

vinced that had it been sitting as the trier of fact, it

would have weighed the evidence differently. Where

circuit’s abuse of discretion test. 585 F.3d at 1262. Although Hinkson spe-

cifically addressed the abuse of discretion standard, the opinion noted that

the Supreme Court “defined abuse of discretion review of factual findings

in terms of ‘clearly erroneous’ review, holding that ‘[w]hen an appellate

court reviews a district court’s factual findings, the abuse-of-discretion

and clearly erroneous standards are indistinguishable . . . .’ ” Id. at 1259

(quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401 (1990))

(alteration in original). We subsequently quoted Hinkson’s formulation of

the abuse of discretion test as a statement of the standard for clear error

review. Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 660 F.3d 384,

395 (9th Cir. 2011).

7586 RODRIGUEZ v. HOLDER

there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly

erroneous.

470 U.S. at 573-74 (emphasis added); see also Inwood Labs.,

Inc. v. Ives Labs., Inc., 456 U.S. 844, 857-58 (1982) (“An

appellate court cannot substitute its interpretation of the evi-

dence for that of the trial court simply because the reviewing

court ‘might give the facts another construction, resolve the

ambiguities differently, and find a more sinister cast to actions

which the District Court apparently deemed innocent.’ ”

(quoting United States v. Real Estate Boards, 339 U.S. 485,

495 (1950))).

[5] In particular, where credibility determinations are at

issue, Anderson counsels that “even greater deference” must

be afforded to the IJ’s factual findings, “for only the trial

judge can be aware of the variations in demeanor and tone of

voice that bear so heavily on the listener’s understanding of

and belief in what is said.” Id. at 575 (citing Wainwright v.

Witt, 469 U.S. 412 (1985)). Similarly, the Fourth Circuit very

recently noted that “IJs hear witnesses and determine the

credibility of evidence. The BIA reviews a paper record,

devoid of the nuances of weighing evidence first hand. The IJ

is thus in a better position to make factual determinations than

the BIA acting in an appellate capacity.” Turkson, 667 F.3d

at 527.

Of course, as the Anderson Court rightly pointed out,

“[t]his is not to suggest that the trial judge may insulate his

findings from review by denominating them credibility deter-

minations, for factors other than demeanor and inflection go

into the decision whether or not to believe a witness.” 470

U.S. at 575. In certain circumstances, Anderson explains, the

weight of the record may overcome a positive credibility

determination:

Documents or objective evidence may contradict the

witness’ story; or the story itself may be so internally

RODRIGUEZ v. HOLDER 7587

inconsistent or implausible on its face that a reason-

able factfinder would not credit it. Where such fac-

tors are present, the court of appeals may well find

clear error even in a finding purportedly based on a

credibility determination.

Id. (citing United States v. U.S. Gypsum Co., 333 U.S. 364,

396 (1948)). However, the Anderson court concluded by

explaining that

when a trial judge’s finding is based on his decision

to credit the testimony of one of two or more wit-

nesses, each of whom has told a coherent and

facially plausible story that is not contradicted by

extrinsic evidence, that finding, if not internally

inconsistent, can virtually never be clear error.

Id. (emphasis added).

In the context of this case, it would be error for the BIA to

hold that the IJ’s findings of fact and credibility determina-

tions were clearly erroneous if those findings and determina-

tions were not illogical or implausible and had support in

inferences that may be drawn from the record, and if Lopez-

Rodriguez’s testimony is uncontradicted by objective evi-

dence and internally consistent.

B.

The BIA relied on two aspects of the testimony in this case

to vacate the IJ’s decision and to find that certain factual find-

ings were “clearly erroneous”: Officer Gonzalez’s estimates

and opinions regarding the amount of gas in the gas tank, and

a supposed contradiction in Lopez-Rodriguez’s testimony.

The testimony regarding these issues, according to the BIA,

made it “impossible to accept” that Lopez-Rodriguez testified

credibly. However, by characterizing Officer Gonzalez’s esti-

mates and opinions as factual, the BIA engaged in impermis-

7588 RODRIGUEZ v. HOLDER

sible fact-finding. In addition, the BIA engaged in further

fact-finding and in de novo review of the IJ’s factual findings

by concluding that Lopez-Rodriguez contradicted himself.

Finally, the BIA applied de novo review to the IJ’s credibility

determination by independently assessing Lopez-Rodriguez’s

credibility without deference to the IJ’s findings.

Officer Gonzalez’s Testimony

The IJ made certain findings of fact in his oral decision. He

found that both the CBP officers and Lopez-Rodriguez testi-

fied credibly. He also found that Lopez-Rodriguez worked as

a runner for fishing boats, providing supplies as directed by

his employer, and that the truck in question belonged to

Lopez-Rodriguez’s employer. Further, the IJ found that

Lopez-Rodriguez was calm throughout his interactions with

the CBP officers at the port of entry.

The IJ made no factual findings, however, as to the quantity

of gas in the Dodge truck either when Lopez-Rodriguez left

Puerto Peñasco or when he arrived at the Lukeville port of

entry, or as to the amount of gas that the truck used per mile

from Puerto Peñasco to Lukeville on July 22, 2006.5 Further-

more, the IJ made no factual determination of whether Lopez-

Rodriguez refueled during his drive north. Although the IJ did

note that both Officer Gonzalez and Lopez-Rodriguez testi-

5

The IJ noted Officer Gonzalez’s estimates on these factual questions,

but subsequently stated that “there is no statement of expertise in measure-

ment of Officer Gonzalez. And, in questioning by the Court, he acknowl-

edges that there might have been four gallons, maybe five, maybe six. He

is not sure of the exact amount. . . . There was no actual measurement of

the amount of gas that was in there. This was all by basically, for lack of

a better term, eyeballing it.” The IJ further concluded that the govern-

ment’s printout of a Dodge Ram 1500 series pickup truck’s likely fuel

usage from the web site www.fueleconomy.gov “does not answer the ques-

tion of actually how much gas was in the vehicle when the applicant

started from Puerto Peñasco versus how much was in the vehicle when it

was syphoned out and not put into any measurement.”

RODRIGUEZ v. HOLDER 7589

fied that the gas gauge indicated that the tank was full upon

arrival at the Lukeville port of entry, he did not make a spe-

cific finding on the issue.

The BIA may not make its own factual findings to resolve

these issues; if the BIA believes that it cannot decide the case

without resolution of these facts, then it must remand to the

IJ for further factual findings. 8 C.F.R. § 1003.1(d)(3)(iv);

Brezilien, 569 F.3d at 413; Padmore, 609 F.3d at 69. Here,

however, the BIA accepted as true Officer Gonzalez’s esti-

mates and opinions regarding these unresolved factual issues.

The BIA also stated conclusively that the truck’s gas gauge

reflected that the tank was full upon arrival at the Lukeville

port of entry.6 This is fact-finding prohibited by

§ 1003.1(d)(3)(iv).

In its decision the Board cited “Officer Gonzalez’s credible

testimony” as one reason why it is “impossible to accept the

[IJ]’s conclusion that [Lopez-Rodriguez] testified credibly.”

6

There is nothing in the record to establish that the gas gauge accurately

reflected the quantity of gas in the tank. Indeed, Officer Gonzalez quali-

fied his testimony regarding the gas gauge by stating that “If the gas tank

was reading properly and if it was full, by the time [Lopez-Rodriguez] got

from [Puerto Peñasco] to [Lukeville], it would have read empty.” Officer

Gonzalez’s testimony is also somewhat contradictory on the issue of the

gas gauge. The government’s attorney initially asked him if the flotation

device that measures the quantity of gas in the tank was “unobstructed by

these packages [of marijuana],” and Officer Gonzalez responded that “[i]t

was obstructed.” However, shortly thereafter, Officer Gonzalez testified

that “[t]he sending unit was reading correctly.” Leaving Officer Gonza-

lez’s testimony aside, the IJ noted in his oral decision that “[f]requently,

from common experience, when a gas gauge reads full, it reads full for a

while before dropping. And, how much gas may be consumed by the time

that gauge starts dropping, I do not know and I am not going to venture

a guess at.” In its opinion, the Board presumed that the gas gauge was

working properly and accurately reflected the quantity of gas in the tank,

but there is no evidence to support such a conclusion. If this unresolved

factual issue were key to the Board’s review of the IJ’s decision in this

case, it should have remanded to the IJ for further factual findings. 8

C.F.R. § 1003.1(d)(3)(iv).

7590 RODRIGUEZ v. HOLDER

Noting Officer Gonzalez’s “significant experience inspecting

cars at the border,” the BIA listed a number of the estimates

that Gonzalez made about the gas tank and the amount of gas

it contained when Lopez-Rodriguez reached the border, and

mentioned Gonzalez’s opinion that Lopez-Rodriguez “could

not have driven the distance from Puerto Peñasco to the bor-

der without refueling and still have 4 to 6 gallons of gas fill-

ing up the tank.” The BIA does not explain further how

Officer Gonzalez’s testimony undermines the IJ’s finding that

Lopez-Rodriguez testified credibly; we are left to draw our

own conclusions from the Board’s recitation of the officer’s

testimony.

Our review of the BIA’s decision leads us to conclude that

the Board accepted as true Officer Gonzalez’s estimates and

opinions, although the BIA was careful to note that it was

simply quoting from Officer Gonzalez’s testimony (“As Offi-

cer Gonzalez testified,” “He stated,” “he estimated,” and “he

concluded”). If the Board had not accepted these statements

as true, there would be no basis—other than the supposed

contradiction in Lopez-Rodriguez’s testimony, discussed infra

—to reverse the IJ’s credibility determination as “clearly erro-

neous.” That the IJ found Officer Gonzalez to have testified

credibly, however, does not give the Board license to accept

as true Officer Gonzalez’s estimates and opinions about his-

torical factual details when the IJ clearly decided not to make

factual findings regarding these disputed issues. The IJ stated

that he did not “doubt Officer Gonzalez’ [sic] assessment as

being made in good faith,” but stated twice in his oral deci-

sion that whether Lopez-Rodriguez refueled between Puerto

Peñasco and Lukeville was unresolved due to insufficient evi-

dence.7 The IJ concluded that Officer Gonzalez did not lie, but

7

Immediately after citing Officer Gonzalez’s good faith, the IJ noted

that “in fairness, 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.” Later

in his oral decision, he concluded that the case “comes down to whether

it was five gallons of gas that were used, thereby necessitating a refilling

of the tank. And, I do not think that there is sufficient evidence to show

that this applicant has lied and refilled the tank prior to getting to the Port

of Inspection in Lukeville.”

RODRIGUEZ v. HOLDER 7591

also concluded that Officer Gonzalez’s estimates alone were

insufficient to resolve the issue of whether or not Lopez-

Rodriguez refueled between Puerto Peñasco and Lukeville.

The BIA may not take it upon itself to resolve the issue. 8

C.F.R. § 1003.1(d)(3)(iv).

[6] By accepting Officer Gonzalez’s estimates and opin-

ions as true, and by stating conclusively that the Dodge

truck’s gas gauge read full at the Lukeville inspection station,

the BIA engaged in impermissible fact-finding in violation of

8 C.F.R. § 1003.1(d)(3)(iv). As noted above, these issues

were left unresolved by the IJ, as was the issue of whether the

gas gauge accurately reflected the true quantity of gas in the

tank. If the BIA wanted specific factual findings on these

issues, then the governing regulations required it to remand

the case to the IJ instead of making its own factual determina-

tions. See Brezilien, 569 F.3d at 413; Padmore, 609 F.3d at

69.

Contradiction in Lopez-Rodriguez’s Testimony

The IJ did not identify any contradictions in Lopez-

Rodriguez’s testimony. The claimed contradiction noted by

the BIA in its decision following remand relates to whether or

not Lopez-Rodriguez had previously driven his employer’s

truck into the United States to pick up boat supplies before his

trip on July 22, 2006, and if so, how often. The IJ found spe-

cifically that Lopez-Rodriguez “has come into the United

States on numerous occasions and is basically directed each

time by his employer to go to a specific place in Phoenix to

pick up supplies for the boat, turn around and come back to

his work in Mexico.” The IJ did not make any findings as to

what specific vehicle or vehicles Lopez-Rodriguez used to

drive to the United States on these trips.

The BIA, without specifically referring to this factual deter-

mination by the IJ or concluding that the IJ’s determination

was illogical, implausible, or without support in the record,

7592 RODRIGUEZ v. HOLDER

found that the IJ “ignored a contradiction” in Lopez-

Rodriguez’s testimony. The Board stated that Lopez-

Rodriguez “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.” Without further explanation, the BIA used this

claimed contradiction as a second basis for finding that the

IJ’s credibility determination was “clearly erroneous.”

The first exchange between the IJ and Lopez-Rodriguez to

which the BIA referred in its decision occurred at Lopez-

Rodriguez’s second master calendar hearing on August 24,

2006, after the government’s attorney had finished asking a

series of questions about the white Dodge Ram pickup truck

that Lopez-Rodriguez was driving on the day in question, and

what Lopez-Rodriguez had planned on doing with it that day:

IJ: How long have you been working for this person

[the employer], sir?

L-R: Two years.

IJ: Did he ever ask you to do this before?

L-R: No.

IJ: Have you ever taken a vehicle into the United

States before?

L-R: How so? I mean, I, I didn’t hear?

IJ: Have you ever taken a vehicle into the United

States before?

L-R: No, just with that and my vehicle, that’s it.

RODRIGUEZ v. HOLDER 7593

The IJ did not find that the above exchange contradicted

Lopez-Rodriguez’s testimony at his removal hearing on Sep-

tember 14, 2006, in which he answered the IJ as follows:

IJ: How long had you worked for him [the

employer]?

L-R: Two years.

IJ: You had gone to Phoenix before?

L-R: Yes.

IJ: Have you driven that truck before?

L-R: I had — I had started driving that truck three

months prior to my being stopped, arrested.

IJ: Ever take it to Phoenix before?

L-R: Yes, I was, I was going very often. Every 15

days, every week, once a month.

IJ: In that truck?

L-R: In that truck.

The BIA found that the second exchange contradicted the

first.

[7] The BIA could not conclude, however, that Lopez-

Rodriguez contradicted himself in these two exchanges with-

out drawing factual inferences from Lopez-Rodriguez’s

answers to the IJ’s questions, and without making findings as

to the vehicle or vehicles that Lopez-Rodriguez regularly used

to drive into the United States for his employer.

7594 RODRIGUEZ v. HOLDER

In the first exchange that the BIA referenced, the IJ asked,

“Have you ever taken a vehicle into the United States

before?,” and Lopez-Rodriguez responded, “No, just with that

and my vehicle, that’s it.” (Emphasis added.) As noted above,

just before this exchange the government’s attorney had asked

Lopez-Rodriguez a series of questions about his employer’s

white Dodge Ram truck. In the second exchange, Lopez-

Rodriguez testified that he had been driving the Dodge truck

to Phoenix for work regularly for approximately three months

prior to July 22, 2006. For the BIA to have found a contradic-

tion in these two exchanges, it would have had to read Lopez-

Rodriguez’s answer, “No, just with that and my vehicle, that’s

it,” to mean that he had only ever driven his own vehicle and

some other vehicle that was not the Dodge truck (“that”) into

the United States.8 However, both the Board’s interpretation

of what Lopez-Rodriguez meant when he said “No, just with

that and my vehicle, that’s it,” and its conclusion regarding

the vehicle or vehicles Lopez-Rodriguez regularly drove into

the United States for his employer, required the Board to

make prohibited findings of fact. If this factual determination

was essential to the Board’s review of the IJ’s decision, it

should have remanded to the IJ for additional factual findings.

See 8 C.F.R. § 1003.1(d)(3)(iv); Padmore, 609 F.3d at 69;

Brezilien, 569 F.3d at 413.

[8] That the Board engaged in de novo review of the IJ’s

factual findings is evident in its selective review of Lopez-

Rodriguez’s testimony. Specifically, the BIA ignored a third

exchange that explained Lopez-Rodriguez’s other responses

to the IJ and supported his testimony that he had driven the

Dodge truck to the United States for work previously.

8

This interpretation seems to ignore both the context of the exchange

between the IJ and Lopez-Rodriguez and the normal vagaries of human

speech, especially when that speech is translated into English. Prior to this

exchange, the government’s attorney had just asked Lopez-Rodriguez

about the Dodge Ram truck. The most logical interpretation of “just with

that and my vehicle” is that “that” referred to the Dodge truck, given that

Lopez-Rodriguez had just been discussing it.

RODRIGUEZ v. HOLDER 7595

Towards the end of the second master calendar hearing, the

IJ and Lopez-Rodriguez engaged in the following exchange:

IJ: You’ve never done this [drug smuggling] before?

L-R: No.

IJ: When did you get your border crossing card?

What year?

L-R: I don’t recall exactly what year.

IJ: Approximately? How long have you had it?

L-R: Since six year [sic], seven years.

IJ: You never had a problem before?

L-R: No.

IJ: And, do you come into the United States?

L-R: Well, I would just go on business, that’s it.

IJ: And, what business is that?

L-R: Shipping business. It would be every 15 days,

you know, every month or every, every week.

IJ: For this boss also?

L-R: Yes.

IJ: Were you driving other vehicles for this boss into

the United States?

L-R: No, that was the only one. Sometimes I would

go in my vehicle.

7596 RODRIGUEZ v. HOLDER

(Emphases added). Although Lopez-Rodriguez does not men-

tion the length of time that he had been using the Dodge Ram

truck to run errands for his boss, this exchange undermines

the BIA’s assertion that Lopez-Rodriguez contradicted him-

self in his testimony. As the Tenth Circuit concluded in

Kabba, “when rejecting the IJ’s credibility findings under a

review purportedly targeted only at clear error, the BIA can-

not selectively examine some evidence while ignoring other

evidence presented to it.” 530 F.3d at 1247. In so doing, the

BIA substituted its own reading of the evidence for that of the

IJ without applying the deference required by the clear error

standard of review. That is an error of law under the BIA’s

own regulations. 8 C.F.R. § 1003.1(d)(3)(i).

Credibility Determination

[9] Finally, the BIA found the IJ’s decision to be “clearly

erroneous” on the basis of its own determination of Lopez-

Rodriguez’s credibility. As the Supreme Court noted in

Anderson, a credibility determination is based, at least in part,

on “variations in demeanor and tone of voice” that only the

factfinder witnesses. 470 U.S. at 575. Although an appellate

court or other reviewing body may find clear error in a fact-

finder’s credibility determination if a witness’s story is con-

tradicted by the evidence or is internally inconsistent or

implausible, a factfinder may nevertheless credit one wit-

ness’s testimony over another’s if both have related coherent

and facially plausible stories that are not contradicted by

extrinsic evidence. See id. Such a decision “can virtually

never be clear error.” Id.

[10] Here, both Lopez-Rodriguez and Officer Gonzalez

told coherent and facially plausible stories. The IJ believed

both and concluded that there was not enough evidence to

show that Lopez-Rodriguez was lying. Although the IJ found

that both Officer Gonzalez and Lopez-Rodriguez testified

credibly, the BIA decided instead, on the basis of the paper

record, that only the testimony of Officer Gonzalez was truth-

RODRIGUEZ v. HOLDER 7597

ful. The BIA has not identified sufficient evidence, however,

to show that the IJ’s credibility determination with respect to

Lopez-Rodriguez was “clearly erroneous” under the deferen-

tial clear error standard of review. Instead, it relied upon its

own factual findings and de novo review of the evidence. The

BIA’s independent credibility determination, therefore, con-

stitutes improper de novo review. See Anderson, 470 U.S. at

575; Hinkson, 585 F.3d at 1262.

Conclusion

Although the BIA invoked the clear error standard, it failed

to apply this deferential standard of review. This is an error

of law that requires that we grant Lopez-Rodriguez’s petition

and remand the case to the agency. 8 C.F.R. § 1003.1(d)(3)(i);

Brezilien, 569 F.3d at 413; see also Kabba, 530 F.3d at 1245-

46; Chen, 470 F.3d at 515.

The BIA made its own findings as to the accuracy of the

historical facts discussed in Officer Gonzalez’s testimony and

the supposed contradiction in Lopez-Rodriguez’s testimony.

The Board further engaged in prohibited de novo review in

finding a contradiction in Lopez-Rodriguez’s testimony and

in making its own finding regarding Lopez-Rodriguez’s credi-

bility. Both are disallowed by the agency’s own regulations.

8 C.F.R. § 1003.1(d)(3)(i), (iv).

V.

This case clearly lacks a robust factual basis on which to

determine whether Lopez-Rodriguez drove to the border

knowing that there were drugs in his employer’s truck’s gas

tank. It is not up to the BIA, however, to create one on its

own. The BIA improperly found facts and applied de novo

review to the IJ’s decision, and we therefore remand this case

to the agency so that the BIA may apply the correct “clear

error” standard of review. If the BIA concludes that it cannot

properly review the IJ’s decision without further factual

7598 RODRIGUEZ v. HOLDER

development of the record, then the Board must remand the

case to the IJ so that he may make the requisite factual find-

ings.

Because we conclude that the BIA erred in its application

of the clear error standard of review and erred by making fac-

tual findings, and remand on that basis, we need not resolve

whether a “reason to believe” under INA § 212(a)(2)(C), 8

U.S.C. § 1182(a)(2)(C) is the equivalent of the probable cause

standard under the Fourth Amendment.

GRANTED AND REMANDED.