Hernandez-Guadarrama v. Ashcroft

• Citation: 394 F.3d 674
• Decision Date: 10 January 2005
• Docket Number: No. 03-72084.,03-72084.
• Parties: Daniel Salvador HERNANDEZ-GUADARRAMA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

394 F.3d 674

Daniel Salvador HERNANDEZ-GUADARRAMA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-72084.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 5, 2004.

Filed January 10, 2005.

Matt Adams, Northwest Immigrant Rights Project, Granger, WA, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division; Richard M. Evans, Assistant Director; and Joan E. Smiley, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

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

Before: D.W. NELSON, REINHARDT, and THOMAS, Circuit Judges.

REINHARDT, Circuit Judge:

Daniel Salvador Hernandez-Guadarrama ("Hernandez"), a native and citizen of Mexico and a conditional permanent resident of the United States, petitions for review of a decision by the Board of Immigration Appeals ("BIA"). The BIA affirmed an immigration judge's ("IJ") order finding him removable from the United States for alien smuggling under Section 237(a)(1)(E)(i) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1227(a)(1)(E)(i). We have jurisdiction over his petition pursuant to 8 U.S.C. § 1252, and conclude that the government failed to establish removability by "clear, unequivocal, and convincing evidence." Woodby v. INS, 385 U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966).

I.

Hernandez is married to a United States citizen and has been a conditional permanent resident since November 17, 1997. On January 25, 1999, Hernandez and his wife were driving back to their home in Sunnyside, Washington after a visit to his mother in Mexico. While crossing Idaho via I-84, the primary route linking the northwestern cities of Salt Lake City, Boise, and Portland, they were stopped by INS Agents Jackson and Sanford, who were conducting anti-smuggling "traffic observations." According to the agents' written report, when the Hernandez's pick-up truck passed the agents' unmarked, stationary vehicle at a speed of 75 mph, no one in the truck made eye contact with the agents and the passengers appeared rigid and nervous. The agents noticed a Hispanic male sitting in the camper shell. Based on their "knowledge" that I-84 is a "notorious route for ... illegal alien smugglers," they decided to follow Hernandez's truck. While trailing the vehicle, the officers ran the plates and discovered that it was registered to an address in Sunnyside, Washington, a rural community that, according to the officers, is "notorious for the presence of illegal aliens." A customs check revealed that the vehicle had crossed the border two days earlier. After tailing the vehicle for approximately fifteen minutes and noticing additional passengers in the bed of the pick-up in a camper shell, the officers pulled the truck over and questioned the occupants about their citizenship. Upon establishing that seven of the occupants were illegal aliens, the agents took the aliens to a nearby station for processing and ordered Hernandez and his wife to follow them there as well.

At the station, Agents Sanford and Jackson filled out I-213 forms¹ for Hernandez and all the illegal aliens. They also gave Miranda warnings to one of the illegal aliens, Columba Landa-Samano, a Mexican national who had previously been deported from the United States, and elicited a sworn statement from her. According to that statement, Hernandez and his wife picked up the seven individuals in their home town in Mexico and drove them to a town near the Mexico-United States border. They dropped the seven passengers off before they reached the border, at which point the passengers made arrangements with a smuggler to cross into the United States. The seven aliens each paid the smuggler $750, and after they crossed the border, the smuggler made arrangements for them to meet up with Hernandez in Phoenix, Arizona. From there, they expected to ride with him to Prosser, Washington.

Agents Sanford and Jackson also interrogated Hernandez's wife and obtained a statement from her regarding the trip back from Mexico. However, according to her subsequent affidavit, the agents lied to her in order to induce her to make the statement, explaining that if she gave the same story as one of the illegal aliens, there would be no immigration consequences for her husband.

The government did not bring criminal charges against Hernandez. Rather, it accused him of violating 8 U.S.C. § 1227(a)(1)(E)(i) and began civil removal proceedings. Under § 1227(a)(1)(E)(i), "Any alien who (prior to the date of entry, at the time of any entry, or within 5 years of the date of any entry) knowingly has encouraged, induced, assisted, abetted or aided any other alien to enter or try to enter the United States in violation of law is deportable."

Before Hernandez's deportation hearing began, he moved to suppress evidence obtained as a result of the stop, alleging that the stop constituted an egregious violation of his Fourth Amendment rights because race was the motivating factor. According to Hernandez, the other reasons given by the agents to justify the stop were insufficient to establish reasonable suspicion under the law. In addition, he challenged the admissibility of his wife's statement, both because of the agents' alleged prevarication and because, he contended, the arresting officer performed the interrogation in violation of 8 C.F.R. § 287.3.² He also asked that the proceedings be terminated. The IJ rejected Hernandez's Fourth Amendment argument and then held that, even assuming that his wife's statement was inadmissible, the government had presented sufficient evidence to proceed with the case.

At the hearing, the two arresting officers testified, but the IJ refused Hernandez's request to cross-examine them regarding the basis for the stop. Columba Landa-Samano did not testify, and the IJ admitted her statement over Hernandez's objection. The IJ asked the government to withdraw Hernandez's wife's statement from consideration in order to avoid unnecessary delay. The government agreed and the IJ stated that he would not consider the statement or any references to it.³

In his oral decision, the IJ concluded that the government had demonstrated by clear and convincing evidence that Hernandez aided in the illegal entry of the seven illegal aliens in violation of 8 U.S.C. § 1227(a)(1)(E)(i). He further ruled that, because Hernandez had committed the offense charged, he lacked good moral character and was ineligible for voluntary departure.

One member of the BIA issued an opinion affirming the IJ. According to the BIA, Hernandez's actions fell under 8 U.S.C. § 1227(a)(1)(E)(i) because "he was part of the prearranged plan to bring [the aliens] to the border and part of the prearranged plan to meet them on the other side of the border." Further, the BIA held that Hernandez's due process and Fourth Amendment rights had not been violated.

II.

On review, Hernandez renews the arguments he made before the BIA: (1) that the IJ erred in refusing to suppress all evidence resulting from the vehicle stop; (2) that the IJ deprived him of his due process rights in limiting his ability to cross-examine witnesses and in admitting statements taken in violation of the agency's own regulations; (3) that, even assuming the government's allegations to be true, § 1227(a)(1)(E)(i) does not apply to him because he was not involved in the illegal aliens' actual border crossing; and (4) that, even if the statute covers more than assistance with the physical border crossing, the government failed to meet its evidentiary burden of demonstrating his culpability by clear, unequivocal, and convincing evidence.

We reject Hernandez's overly narrow construction of § 1227(a)(1)(E)(i) and affirm the BIA's interpretation that the government need not prove direct participation in the physical border crossing. However, the limited evidence upon which the government relies was not subject to cross-examination and is insufficiently reliable to support a decision to remove an alien. We hold that the government failed to prove its case by clear, unequivocal, and convincing evidence. See Woodby v. INS, 385 U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966); see also, e.g., Cortez-Acosta v. INS, 234 F.3d 476, 482 (9th Cir.2000); Murphy v. INS, 54 F.3d 605, 612 (9th Cir.1995). Because we decide the case on that basis, we do not consider Hernandez's Fourth Amendment arguments.⁴

A. Construction of 8 U.S.C. § 1227(a)(1)(E)(i)

The question whether 8 U.S.C. § 1227(a)(1)(E)(i) applies only to those individuals who participate in the physical border-crossing implicates the "agency's construction of the statute [that] it administers." See INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Thus, we apply the principles of deference described in Chevron, 467 U.S. at 842, 104 S.Ct. 2778. Under Chevron, we must first consider "whether Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. "If Congress has done so, the inquiry is at an end; the court `must give effect to the unambiguously expressed intent of Congress.'" FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). If we conclude that the statute is silent or ambiguous with respect to the specific issue before us, we must respect the agency's construction of the statute so long as it is permissible. Aguirre-Aguirre, 526 U.S. at 424, 119 S.Ct. 1439; see also INS v. Cardoza-Fonseca, 480 U.S. 421, 448-49, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).

"The starting point for our interpretation of a statute is always its language." Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739, 109...