Ernesto Olivares v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNESTO OLIVARES,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 16-72581
Agency No. A096-707-461
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
Ernesto Olivares, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) order finding him inadmissible and denying his
application to adjust status. We have jurisdiction under 8 U.S.C. § 1252. We
* 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).
FILED
SEP 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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review for substantial evidence the agency’s “reason to believe” and adverse
credibility determinations, and we review de novo questions of law. Chavez-Reyes
v. Holder, 741 F.3d 1, 3 (9th Cir. 2014); Shrestha v. Holder, 590 F.3d 1034, 1039,
1048 (9th Cir. 2010). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility
determination, where Olivares’s testimony regarding his arrest in 1987 was
inconsistent with the detailed statement he gave to police at the time of his arrest.
See id. at 1046-48 (adverse credibility determination supported under the totality of
the circumstances). The record does not support Olivares’s contention that the
agency ignored the fact that the criminal charges against him had been dismissed.
Accordingly, Olivares’s due process contention fails. See Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000) (an alien must show error and substantial prejudice to
prevail on a due process claim).
Because Olivares’s testimony recanting his prior statement was not credible,
substantial evidence supports the agency’s determination that it had reason to
believe he had engaged in drug trafficking. See 8 U.S.C. § 1182(a)(2)(C)(i)
(providing that an alien is inadmissible if there is “reason to believe” that he is or
has been an “illicit trafficker in any controlled substance”); Chavez-Reyes, 741
F.3d at 2 (no conviction is required for the agency to have “reason to believe” an
applicant engaged or assisted in illicit trafficking of drugs).

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We do not reach Olivares’s contentions concerning denial as a matter of
discretion, because the BIA did not rely on that ground. See Andia v. Ashcroft, 359
F.3d 1181, 1184 (9th Cir. 2004) (“In reviewing the decision of the BIA, we
consider only the grounds relied upon by that agency.”).
PETITION FOR REVIEW DENIED.

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