Chavez-Gonzalez

concurring:

The majority decides, in effect, that there was sufficient evidence to establish “reason to believe” that Chavez-Gonzales had engaged in illicit drug trafficking. Only by reaching that conclusion could the court justify its assertion that we lack jurisdiction over the sufficiency issue on the merits. See 8 U.S.C. § 1252 (a)(2); Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1209 (9th Cir.2004) (concluding that the “reason to believe” standard for exclusion *668 satisfies the jurisdictional bar for aliens who are removable because of “having committed” certain offenses).

I concur with the following observation: There is a legal burden of proof issue over which we do have jurisdiction, embedded in the sufficiency of evidence question. Under 8 U.S.C. § 1101 (a)(13)(C), a legal permanent resident (LPR) is considered an applicant for admission if he “has engaged in illegal activity after having departed the United States ... [or] has committed an offense identified in section 212(a)(2).... ” This case raises the question of whether the burden of proof under 8 U.S.C. § 1101 (a)(13)(C) is on the government (as for questions of deportability, 8 U.S.C. § 1229a(c)(3)) or on the…

MEMORANDUM *

Emiliano Chavez-Gonzalez appeals from a Board of Immigration Appeals (“BIA”) final order of removal. Pursuant to section 106(c) of the REAL ID Act of 2005, Pub.L. No. 109-13, Div. B, 119 Stat. 231 , 311, Chavez-Gonzalez’s petition for a writ of habeas corpus was transferred from the district court to this court as a petition for direct review. See Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052-53 (9th Cir. 2005). Chavez-Gonzalez alleges that the BIA unlawfully sustained the charge of inadmissibility under 8 U.S.C. § 1182 (a)(2)(C) based solely on the contents of a “Record of Deportable/Inadmissible Alien” (“Form 1-213”). In addition, he claims violations of his statutory and constitutional due process rights.

The BIA determined that Chavez-Gonzalez was removable because immigration officers at the border had “reason to believe” that he knowingly participated in drug smuggling. See 8 U.S.C. § 1182 (a)(2)(C). Although the REAL ID Act restores this court’s jurisdiction over questions of law regardless of the underlying offense, see id. § 1252(a)(2)(D), Chavez-Gonzalez’s sufficiency challenge does not raise a legal question and therefore we cannot consider this claim,…