Altamirano v. Gonzales

Decision Date31 October 2005
Docket NumberNo. 03-70737.,03-70737.
Citation427 F.3d 586
PartiesEmma ALTAMIRANO, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Kevin Bove, Esq., Escondido, CA, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, Ernesto H. Molina, Jr., M. Jocelyn Lopez Wright, Alison R. Drucker, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A77-411-293.

Before: B. FLETCHER, RYMER, and PAEZ, Circuit Judges.

PAEZ, Circuit Judge.

Emma Altamirano ("Altamirano") petitions for review of the Board of Immigration Appeals' ("BIA") order affirming, in a streamlined decision, the Immigration Judge's ("IJ") decision denying Altamirano's motion to terminate removal proceedings against her and finding that Altamirano is inadmissable because she engaged in alien smuggling in violation of § 212(a)(6)(E)(i) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1182(a)(6)(E)(i) (Supp. V 1999).1 The INS sought to remove Altamirano when she attempted to enter the United States in a vehicle in which an illegal alien was hiding in the trunk. Altamirano does not dispute that she knew the alien was in the trunk when the vehicle attempted to pass through the port of entry. Altamirano contends, however, that because she did not affirmatively assist the alien in attempting to enter the United States, she did not engage in alien smuggling. In addition, Altamirano argues that the BIA impermissibly streamlined her appeal. The government argues, however, that § 212(a)(6)(E)(i)'s prohibition against alien smuggling encompasses Altamirano's conduct, and therefore that the IJ properly determined that she is inadmissible. The government further argues that the IJ erred in assuming that the government bears the burden of proof rather than placing the burden on Altamirano to prove that she was admissible. See id. § 240(c)(2), 8 U.S.C. § 1229a(c)(2).

We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a final order of removal. We hold that Altamirano's mere presence in the vehicle at the port of entry does not constitute alien smuggling under § 212(a)(6)(E)(i) despite her knowledge that an alien was hiding in the trunk of the vehicle. The IJ's determination of inadmissibility was clearly contrary to the plain meaning of the statutory provision. We therefore grant the petition for review.2

I. Background

Emma Altamirano, a citizen of Mexico, is married to Miguel Altamirano, a United States citizen. At the time of the events at issue here, Altamirano resided in the United States pursuant to a grant of parole by the Attorney General pending final resolution of the immediate relative visa petition filed by her husband. Altamirano's parole status allowed her to depart and reenter the United States.

Altamirano and her family frequently made trips back and forth to Mexico. On May 20, 2000, Altamirano, her husband, and their two daughters traveled from Ramona, California to Tijuana, Mexico to purchase pinatas. Early the next day, when Altamirano attempted to reenter the United States, she was detained by immigration officers at the port of entry in San Ysidro, California. Altamirano was returning to the United States in the family car along with her husband, who was driving, and her father-in-law, a permanent United States resident. A fourth individual, Juan Manuel Martinez-Marin, a Mexican citizen, was hiding in the trunk. Altamirano, her husband, and her father-in law were all aware that Martinez-Marin was in the trunk when they attempted to enter the United States. At the primary inspection station, the officers inspected the vehicle and discovered Martinez-Marin in the trunk. Altamirano was subsequently denied admission to the United States because she allegedly engaged in alien smuggling in violation of INA § 212(a)(6)(E)(i).

At the July 30, 2001 removal hearing, Altamirano and her husband testified that they decided to return to California on May 21 because they had forgotten several items at home. Altamirano's husband explained that he needed to retrieve their daughters' birth certificates in order for their daughters to reenter the United States and that Altamirano needed to accompany him because she knew where the documents were located. He further testified that Altamirano accompanied him because they are "always together."

When questioned by immigration officers following the primary inspection of the vehicle, Altamirano informed the officers that she knew that her father-in-law had made plans with a friend to transport Martinez-Marin into the United States. She admitted that her husband had told her of the plan the night before.3 She also knew that Martinez-Marin was in the trunk when she got into the vehicle. Altamirano testified, however, that she did not see Martinez-Marin before they were detained; she did not know his name prior to their detention and she did not know his final destination.

When the officers discovered Martinez-Marin in the trunk during the primary inspection of the vehicle, they detained Altamirano. Although Altamirano was not charged with a criminal offense, the Immigration and Naturalization Service ("INS") initiated removal proceedings against her. The INS served her with a Notice to Appear, alleging that she was an "arriving alien" who "knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law" and was subject to removal from the United States pursuant to INA § 212(a)(6)(E)(i).

Following a hearing on July 30, 2001, the IJ issued an oral decision. The IJ noted that Altamirano testified that "she was not involved in the planning of the smuggling attempt" and "was not involved in the placing of Martinez-Marin into the trunk of the car." In addition, the IJ found that Altamirano did not know whether her father-in-law would be paid for his assistance and that "her involvement in the smuggling attempt was limited to her knowledge that Martinez-Marin was in the trunk of the vehicle and her presence in the vehicle during the primary and secondary inspections." On the basis of these findings, the IJ determined that with the "knowledge [that Martinez-Marin was in the trunk], respondent was present in the vehicle and was equally as culpable at that point, with her husband, and her father-in-law, in the effort to assist and aid Mr. Martinez-Marin's unlawful entry into the United States from Mexico." The IJ therefore concluded that Altamirano was inadmissible pursuant to INA § 212(a)(6)(E)(i). Altamirano appealed to the BIA, which, in a streamlined decision, affirmed the results of the IJ's decision. See 8 C.F.R. § 3.1(e)(4) (2003).

In Altamirano's petition for review, she argues that although she was present in the vehicle and knew that Martinez-Marin was in the trunk, she did not "encourage[ ], induce[ ], assist[ ], abet[ ] or aid[ ]" another alien to enter the United States in violation of § 212(a)(6)(E)(i). Additionally, she challenges the BIA's decision to streamline her appeal on the ground that the issue before the IJ—whether her presence in the vehicle with her knowledge that Martinez-Marin was in the trunk constituted alien smuggling in violation of § 212(a)(6)(E)(i)—was not controlled by precedent. See id. § 3.1(e)(4)(A).

II. Burden of Proof

In the IJ's decision finding Altamirano inadmissible, the IJ concluded that "the government has provided clear, cogent and convincing evidence that respondent has violated Section 212(a)(6)(E)(i)" of the INA, citing Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). The government argues that the IJ erred in concluding that the government bears the burden of proof because under INA § 240(c)(2) Altamirano bears the burden of establishing that she is admissible.

In removal proceedings, an alien who is "an applicant for admission" bears the burden of establishing that she "is clearly and beyond doubt entitled to be admitted and is not inadmissible under section 1182 of this title; or . . . by clear and convincing evidence, that the alien is lawfully present in the United States pursuant to a prior admission." INA § 240(c)(2), 8 U.S.C. § 1229a(c)(2) (Supp. V 1999); see also 8 C.F.R. § 240.8(b) (2000) ("Arriving Aliens. In proceedings commenced upon a respondent's arrival in the United States or after the revocation or expiration of parole, the respondent must prove that he or she is clearly and beyond a doubt entitled to be admitted to the United States and is not inadmissible as charged."). On the other hand, when an alien has been admitted to the United States, "the Service has the burden of establishing by clear and convincing evidence that . . . the alien is deportable." INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c) (3)(A) (Supp. V 1999).

The government argues that Altamirano is a parolee and is therefore an "applicant for admission" who bears the burden of proof. We agree. Under INA § 212(d)(5), the Attorney General has the discretion to "parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States." Id. § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). Parole status, however, "shall not be regarded as an admission of the alien," id., and is not a "lawful entry of the alien into the United States." Id. § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A).4

Accordingly, the IJ erred when he placed the burden of proof on the government. As a parolee under INA § 212(d)(5), Altamirano was an applicant for admission when she attempted to enter the United States on May 21, 2000. She therefore bore...

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