Cortez-Acosta v. Immigration & Naturalization Serv.

• Decision Date: 08 December 2000
• Docket Number: No. 97-71033,CORTEZ-ACOST,P,97-71033
• Citation: 234 F.3d 476
• Parties: (9th Cir. 2000) HECTORetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 476

234 F.3d 476 (9th Cir. 2000)

HECTOR CORTEZ-ACOSTA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 97-71033

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted March 16, 2000

Filed December 8, 2000

Rhoda Wilkinson-Domingo, San Francisco, California, for the petitioner.

Allen W. Hausman, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No.A91-779-512

Before: Alex Kozinski, Andrew J. Kleinfeld, and M. Margaret McKeown, Circuit Judges.

Per Curiam Opinion

PER CURIAM:

I. FACTS

Mr. Cortez-Acosta, a resident alien, was ordered in December 1994 to show cause why he should not be deported. The reason stated in English and Spanish on his notice was that he was "an 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." This all grew out of an incident at the Tecate border station. Though the facts are not established by evidence in the record, it appears to be undisputed that Mr. Cortez-Acosta was a passenger in the first of two cars owned by the driver that were crossing the border together. The driver of the second car was a person who could not legally enter the United States. Everyone in the two cars was initially thought by the officers to be guilty of something, but Mr. Cortez-Acosta now maintains that he was merely an innocent bystander, a passenger, not responsible for what the driver of the car may have been doing in conjunction with the driver of the other car. No criminal charges were filed against Mr. Cortez-Acosta, but the INS thought the quantum of proof adequate to deport him.

Mr. Cortez-Acosta appeared before an Immigration Judge (IJ) for a "master" as opposed to an "individual" hearing in April 1996. At the time, immigration judges did not routinely record this type of proceeding, so there is no transcript. But the judge wrote in his own hand "Found Deportable 4-9-96" on the order to show cause, as a record of the proceeding. In addition, again in his own hand, the IJ wrote the word "admit" five times, in the left margin above each of the allegations stated in English and Spanish on the order to show cause, that: (1) "[y]ou are not a citizen or national of the United States"; (2) "[y]ou are a native of Mexico and a citizen of Mexico"; (3) "[y]ou entered the United States at or near Tecate, California on or about December 4, 1994"; (4) "[a]t that time you entered as a legal resident alien"; (5) "[o]n or about December 4, 1994, you knowingly encouraged, induced, assisted, abetted and aided Zeferino Hernandez-Gabriel, an alien, to enter the United States at or near Tecate, California at a place, orin a manner, other than designated by immigration officials of the United States for the entrance of immigrants into the United States." Mr. Cortez-Acosta did not have a lawyer when he appeared at that hearing. The record is not clear on whether the IJ wrote "admit" contemporaneously or on a later date. In Mr. Cortez-Acosta's individual hearing on relief from deportation a few months later, described below, the IJ said that the order to show cause "has been corrected nunc pro tunc with marking today by me," and it is not clear whether these later markings include the word "admit" written above each of the five allegations.

Mr. Cortez-Acosta sought relief from deportation. The applicable statute makes relief available for aliens who temporarily proceeded abroad "who are returning to a lawful unrelinquished domicile of seven consecutive years."¹ An alien cannot obtain this relief, however, if he at any time assisted in alien smuggling of someone other than his parent, spouse, or child.² Mr. Cortez-Acosta had two problems in obtaining this relief. First, his application for it said he had lived in Mexicali, Mexico, for the last five years, not the United States, and only worked in the United States. Thus although he had permanent resident status, he was not actually living in the United States. Second, his alien smuggling case did not involve his parent, spouse, or child.

The same IJ held an individual hearing, this time transcribed, in September, on Mr. Cortez-Acosta's application for relief from deportation. The judge then recited that at the earlier hearing, Mr. Cortez-Acosta had admitted to alien smuggling, but his residence had been unclear, and the judge had scheduled a hearing on his application for relief from deportation. The judge then asked if it was correct that Mr. CortezAcosta had been working in the United States and residing in Mexico, and Mr. Cortez-Acosta said that it was:

Q Now, the nature of the proceeding today is that on April 9 of this year you already told me that you did engage in alien smuggling, that you did aid and abet the illegal entry of Zefarino Her nandez Gabriel at or near Tecate, California on or about December 4, 1994. Based upon that and based upon the fact that you're a permanent resident, I didn't know about where you had been living or where you had resided. I gave you an opportunity to apply for relief from deportation under Section 212(c). Today's hearing is only about that application. You submitted the application to the Court. [And] pursuant to the application and pursuant to my asking you at pretrial about what the issues in the case are, you've indicated that you have been working in the United States but that your residence has been in Mexicali, Mexico. Is that correct, sir?

A Yes, sir.

At no point during the second hearing did Mr. Cortez-Acosta correct the judge's statement that he had admitted to alien smuggling at the prior hearing. The judge at one point asked him who was Zefarino Hernandez, the alien he was accused of smuggling, and Mr. Cortez-Acosta replied, "He was a friend of some cousins," without raising any question about whether he had helped smuggle him in. At another point, Mr. Cortez-Acosta did speak up to provide explanation. When the judge asked him if he wished to appeal denial of his request for relief from deportation, he said he wanted to answer. When the judge told him to go ahead, he explained that he was working in California, and had been living in Los Angeles with his siblings, but that he had been living in Mexicali, Mexico since 1990 because he is married and wanted to make appropriate arrangements for his son.

The IJ found Mr. Cortez-Acosta to be forthright and deserving, but concluded that he could not under the statute grant relief. In the course of the extended colloquy with Mr. Cortez-Acosta, the IJ said that "there is no other chance for you to stay in this country because of the alien smuggling." The oral decision recites that Mr. Cortez-Acosta "had before entry as was determined by me on April 9, aided, abetted and encouraged or induced the illegal entry of an alien. " The IJ recites that Mr. Cortez-Acosta "very candidly has indicated that after receiving his permanent resident status and entry document, being married he took up domicile in Mexicali, Mexico immediately across the border from Calexico, California and made daily entries to work for the last six years to Hopeville, California in agricultural packing." The IJ found that Mr. Cortez-Acosta was a "commuter" whose domicile in the United States had ended when he took up residence in Mexico in 1990, so he lacked the statutory requirement of an "unrelinquished domicile of seven consecutive years."³ Because of the lack of seven years of domicile, the IJ denied relief. As to the alien smuggling, the IJ raised the question whether "as a reasonably deserving person" relief would have been granted had it not been for the lack of domicile, and said he could not "guarantee" it, but "he would have had obviously serious consideration." This entire proceeding was simultaneously translated between Spanish and English. Mr. CortezAcosta did not have an attorney.

Mr. Cortez-Acosta appealed to the BIA. He stated in his pro se notice that "there were not facts or evidence by INS that I knowingly encouraged, induced, assisted, abetted or aided, Zeferino Hernandez-Gabriel to enter the United States illegally. The allegations of the INS were based on assumption only, just because I happened to be a passenger in one of the vehicles that were detained. I was only a passenger hoping to reach Los Angeles to search for work." He felt intimidated into signing some documents in English. It is not clear what documents he was referring to. Mr. Cortez-Acosta did not state that he had any dispute with the IJ's decision on domicile.

The BIA affirmed, stating that Mr. Cortez-Acosta "is ineligible for any form of relief from deportation that is within the power of the Immigration Judge or this Board to grant." He now petitions this court for review.

II. ANALYSIS

Mr. Cortez-Acosta argues that: (1) the record lacks sufficient evidence to support the finding that he assisted in smuggling aliens; (2) the IJ and BIA erred in holding that he did not maintain his domicile in the United States; (3) he was denied due process because his initial appearance, at which the record says he admitted to the alien smuggling, was not recorded and transcribed, and he was not given an opportunity to present evidence concerning his domicile.

1. Jurisdiction

The INS argues that we lack jurisdiction to review Mr. Cortez-Acosta's claims because he did not raise them before the BIA. We have described this as a jurisdictional defect. "Failure to raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter."⁴

We reject the INS's argument with respect to Mr. CortezAcosta's first argument, because Mr. Cortez-Acosta raised it. He said in his pro se notice of appeal to the BIA, quoted above, that there was insufficient evidence to establish his...