Aguilar Gonzalez v. Mukasey

• Decision Date: 29 July 2008
• Docket Number: No. 04-74576.,04-74576.
• Citation: 534 F.3d 1204
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Modesta AGUILAR GONZALEZ, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

534 F.3d 1204

Modesta AGUILAR GONZALEZ, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 04-74576.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2008.

Withdrawn from Submission February 21, 2008.

Resubmitted July 29, 2008.

Filed July 29, 2008.

Lenore A. Ceithaml, San Diego, CA, for the petitioner.

Eric W. Marsteller, U.S. Department of Justice, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A47-424-635.

Before: B. FLETCHER and N. RANDY SMITH, Circuit Judges, and SAMUEL P. KING,^* District Judge.

Opinion by Judge BETTY B. FLETCHER; Dissent by Judge N.R. SMITH.

BETTY B. FLETCHER, Circuit Judge:

Modesta Aguilar Gonzalez petitions for review of the Board of Immigration Appeals' (BIA) order affirming, in a streamlined decision, the Immigration Judge's (IJ) decision denying her motion to terminate removal proceedings against her and finding that she is inadmissible under INA § 212(a)(6)(E)(i), 8 U.S.C. § 1182(a)(6)(E)(i), because she assisted in the smuggling of two undocumented alien minors into the United States. She was placed in removal proceedings after she attempted to enter the United States in a vehicle that carried two undocumented infants. Earlier that day, Modesta had left California with her family, knowing that her father planned on using her U.S.-citizen son's birth certificate to pass one of the two infants into the United States. The issue before us is whether Modesta's presence and acquiescence in her father's plan was sufficient to sustain a finding that she aided and abetted an alien to try to enter the United States in violation of law.¹

We have jurisdiction under 8 U.S.C. § 1252 to review a final order of removal. We hold that Modesta's mere presence and acquiescence does not constitute alien smuggling under INA § 212(a)(6)(E)(i). We therefore grant the petition for review.

I. Background

Modesta Aguilar Gonzalez, a citizen of Mexico, entered the United States as a legal permanent resident in 2000 when she was 19 years old. Her father, Isauro Aguilar Campos, had petitioned for Modesta, her mother, and her four younger brothers to come to the United States. Modesta is a single mother whose son was five months old on the date of the events at issue here. The entire family lives in a house that Modesta jointly owns with one of her brothers. Modesta does not have a criminal record and has had steady employment since at least October of 2001.

On October 23, 2003, Isauro approached Modesta and told her of his plan to bring two undocumented infant relatives into the United States. He explained to her that he needed to use her son's birth certificate for one of the infants, and that it would be easier to get through inspection if the child's "mother" was with them. Twice she refused to accompany him or provide him with the birth certificate. When he asked the third time, however, she "reluctantly said yes." She did not wish to disappoint him, and was particularly concerned because her father helps pay the mortgage on her house. The record does not establish whether Modesta gave her father the birth certificate or whether he took it. She did accompany him to Mexico, however, and her son's birth certificate was presented to DHS inspectors on the attempted reentry into the United States with the infants.

Isauro borrowed a Chevy Suburban from a relative and drove to Mexico to pick up the two undocumented infants and one of Isauro's U.S.-citizen grandchildren. When they attempted to reenter the United States, Isauro was driving with his wife in the front passenger seat. Several other relatives were in the second row, and Modesta was in the third row, with the undocumented infants on either side of her. As will be discussed below, there is some dispute over exactly what happened at primary inspection, but someone presented the birth certificates to the primary inspection officer who suspected that the infants were not the rightful owners. As a result, Isauro and Modesta were referred to secondary inspection where they admitted that the infants were not U.S. citizens. The infants were sent to the Mexican consulate and the other occupants of the vehicle were fingerprinted and released into the United States.

Isauro and Modesta were both charged with alien smuggling and placed in removal proceedings. Isauro was eventually granted cancellation of removal. Modesta, however, was ineligible for relief from removal because she had resided lawfully in the United States for only three years.

At her master calendar hearing, Modesta denied that she was an arriving alien and that she knowingly assisted in the attempt to smuggle two undocumented infants into the United States. She contested removability asserting that she did not actively engage in the attempt. She further informed the immigration court of her intent to seek relief through termination of proceedings.

The government countered that Modesta actively participated in the attempt by presenting the two borrowed United States birth certificates to the primary inspecting officer. The government based this assertion on the contents of Form G-166 (Report of Investigation) and Form I-213 (Record of Deportable/Inadmissible Alien).

In her motion to terminate, Modesta explained that her participation in the scheme was unwilling, and that she accompanied her father only because she was afraid that he would stop helping her pay the mortgage on her house if she did not go. She also claimed that Isauro was the one that presented the birth certificates to the inspecting officers. In support of this argument, she pointed to contradictory language in the government's evidence. Specifically, while Form I-213 stated that she "presented two U.S. birth certificates on behalf of the children," Form G-166 said that "the driver, AGUILAR-Campos Isuaro presented two State of California Birth Certificates on behalf of the minors." In its motion in opposition, the government did not address these contradictions, but instead insisted that Form I-213 contained sufficient information to find Modesta removable as charged.

At her merits hearing, Modesta, through counsel, submitted an affidavit from Isauro declaring, "It was my idea and mine alone to cross [the] two children, [Modesta] didn't want to go but I insisted and she obeyed me because I am her father." She also filed her father's Form I-213, which stated that he was the one who presented the two U.S. birth certificates to the inspecting officer. Additionally, she made an offer of proof that, if called to testify, she would declare that

her father approached her and asked her twice if he could use her son's birth certificate to bring to the United States a child named Luis. Both times she responded, "No." He asked her again to provide him with her son's birth certificate and to accompany him to Mexico. This third time she reluctantly said yes so as not to disappoint him. She did so without realizing the consequences of her actions. She knew that her son's birth certificate would be used to bring an undocumented infant across the border. She went with her father and other family members to Mexico to bring across not only Luis but another undocumented minor.

On April 14, 2004, the IJ issued a written decision denying Modesta's motion to terminate and finding her removable. His decision was based solely on her offer of proof. Importantly, he did not consider Forms G-166 or I-213 in reaching his conclusion. The IJ explained that

Information as to who provides documents to an inspecting officer is crucial information. Here, it is unclear as to who provided the birth certificates to the inspecting officer. When information on authenticated immigration forms have incorrect or contradictory information, the Court cannot rely on them. Because the respondent has provided evidence to rebut the presumption of reliability on said documents, the Court will not rely on them to determine whether she is removable as charged.

The IJ nevertheless concluded that Modesta had assisted in alien smuggling by "lending countenance" to the scheme by lending her son's birth certificate to her father with knowledge that it would be used to bring an undocumented infant into the United States. According to the IJ, Modesta's "presence in the vehicle and acquiesce [sic] in supplying the document to her father for such purpose, is sufficient evidence to sustain the charge of removability against [her]."

Modesta appealed to the BIA, which affirmed in a streamlined decision. See 8 C.F.R. § 1003.1(e)(4). In her petition for review, she argues that the government did not carry its burden of proving that she aided and assisted in alien smuggling because the government did not establish that she engaged in any active conduct pursuant to the scheme. Specifically, she denies giving the birth certificate to her father, instead insisting that "he knew where she kept it and he took it."

II. Standard of Review

The proper standard of review in immigration proceedings depends on the nature of the decision being reviewed. See Manzo-Fontes v. INS, 53 F.3d 280, 282 (9th Cir.1995). Legal questions concerning the meaning of the immigration laws are reviewed de novo. Lagandaon v. Ashcroft, 383 F.3d 983, 987 (9th Cir.2004). The IJ's factual findings, on the other hand, are reviewed for substantial evidence. Chavez-Ramirez v. INS, 792 F.2d 932, 934-35 (9th Cir.1986). Thus the first thing this court must do is identify whether it is being asked to review a factual finding or a question of law.

The only factual findings in this case are that Modesta was present in the vehicle and that she had lent her son's birth certificate to her father. The former is not contested. As to the latter, it is unclear what the IJ meant by "lend." The IJ did not say Modesta physically handed the birth certificate to her father, and she...