Gameros-Hernandez v. I.N.S.

• Decision Date: 31 August 1989
• Docket Number: GAMEROS-HERNANDE,P,No. 88-7045,88-7045
• Citation: 883 F.2d 839
• Parties: Victoretitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 839

883 F.2d 839

Victor GAMEROS-HERNANDEZ, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 88-7045.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 17, 1989.

Decided Aug. 31, 1989.

Roxana C. Bacon, Bryan, Cave, McPheeters & McRoberts, Phoenix, Ariz., for petitioner.

John R. Bolton, Asst. Atty. Gen., David J. Kline, Asst. Director, Carl H. McIntyre, Linda S. Wendtland, Office of Immigration Litigation, Civil Div., U.S. Dept. of Justice, Washington, D.C., for respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before HUG, HALL and O'SCANNLAIN, Circuit Judges.

HUG, Circuit Judge:

Victor Gameros-Hernandez petitions for review of an order of the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's ("IJ's") decision finding him deportable for entering the United States without inspection in violation of 8 U.S.C. Sec. 1251(a)(2) (1982). We conclude that the evidence was insufficient to support a finding of illegal entry and therefore reverse.

I.

Gameros-Hernandez is a 40-year-old native and citizen of Mexico who was admitted to the United States as a lawful permanent resident on March 11, 1975. His wife, Ester, has been a lawful permanent resident since 1969. The couple has four children, three of whom are United States citizens. Since 1979, Gameros-Hernandez has been employed as a machinist for Walbar, Inc., a manufacturer of aircraft parts located in Tempe, Arizona.

The government's claim that Gameros-Hernandez entered the United States unlawfully is based upon an incident that occurred on January 1, 1984. In the early morning on that date, a sensor located on the United States-Mexico border was activated, indicating that an illegal entry had possibly taken place approximately one-quarter mile east of the port of entry at Douglas, Arizona. After being apprised of this sensor activity, a border patrol agent stationed in Douglas climbed an observation tower from which he sighted Gameros-Hernandez and a woman, later identified as Aracelya Ochoa-Salas, an undocumented alien. The two were in a ditch on the United States side of the border near a hole in the international boundary fence.

Gameros-Hernandez was stopped a few moments later by another border patrol agent. When asked by this agent to explain his presence near the border, Gameros-Hernandez produced his alien registration ("green") card and, pointing toward Mexico, stated that he had just come from visiting friends. Both Gameros-Hernandez and Ochoa-Salas were briefly detained at the border patrol station in Douglas. Thereafter, Gameros-Hernandez was released, and Ochoa-Salas was allowed voluntarily to return to Mexico.

Four months later, in April 1984, the Immigration and Naturalization Service ("INS") reversed its initial decision to decline prosecution of Gameros-Hernandez and issued an order to show cause why he should not be deported for entering the United States without inspection. Apparently, the INS had concluded that Gameros-Hernandez unlawfully entered the United States with Ochoa-Salas through the hole in the boundary fence. At his subsequent deportation hearing, however, Gameros-Hernandez offered an explanation of the events of January 1 that conflicted with the government's theory. According to Gameros-Hernandez, he and his family were returning from a visit with relatives in Mexico on that date. After driving all night, they stopped in Agua Prieta, a Mexican border town, to purchase gasoline. While waiting for a gas station to open, Gameros-Hernandez walked over to a restaurant to buy a cup of coffee. Outside of the restaurant, he was approached by Ochoa-Salas, a young Mexican woman who appeared to Gameros-Hernandez to be very poor. Ochoa-Salas asked Gameros-Hernandez if he would help her enter the United States. Out of compassion, Gameros-Hernandez agreed to meet the young woman in the United States after she crossed through a well-known hole in the international boundary fence.

Gameros-Hernandez claims that he and his family were then inspected and lawfully admitted to the United States through the port of entry at Douglas, Arizona. After leaving his family at a store in Douglas, Gameros-Hernandez walked to the hole in the boundary fence where he had agreed to meet Ochoa-Salas. Five yards from this hole, running parallel to the fence on the United States side of the border, is a deep ditch. Because Ochoa-Salas indicated that she could not traverse this ditch alone, Gameros-Hernandez climbed down into the ditch and up the other side in order to help her. Although he came as close as two meters to the boundary fence, Gameros- Hernandez insists that he never crossed the border into Mexico. With Gameros-Hernandez' assistance, Ochoa-Salas then crossed the ditch, but the two were stopped by the border patrol shortly thereafter.

Mrs. Gameros-Hernandez also testified at the deportation proceedings. She indicated that she was completely unaware of her husband's actions with regard to Ochoa-Salas and confirmed that he had entered the United States lawfully at Douglas. The IJ concluded, however,...