Griselda Sanchez v. Eric H. Holder Jr. ( 2012 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    GRISELDA SANCHEZ,                        No. 08-72430
    Petitioner,
    Agency No.
    v.                       A097-210-888
    ERIC H. HOLDER, JR., Attorney
    General,                                  OPINION
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted
    November 6, 2012—Pasadena, California
    Filed December 26, 2012
    Before: Susan P. Graber, Sandra S. Ikuta, and
    Andrew D. Hurwitz, Circuit Judges.
    Per Curiam Opinion
    2                      SANCHEZ V . HOLDER
    SUMMARY*
    Immigration
    The panel denied Griselda Sanchez’s petition for review
    from the Board of Immigration Appeals’ decision affirming
    without opinion an Immigration Judge’s order finding her
    inadmissible as an alien smuggler under 
    8 U.S.C. § 1182
    (a)(6)(E)(i).
    The panel held that the IJ’s findings, based solely on
    Sanchez’s admissions in her Form I-213 Record of
    Deportable/Inadmissible Alien, were supported by substantial
    and admissible evidence. The panel held that the IJ did not
    abuse his discretion by denying Sanchez’s motion to suppress
    the Form I-213 as hearsay, because the Federal Rules of
    Evidence do not apply in immigration hearings and Sanchez
    did not claim her statements were coerced or establish that
    the memorialization of her statements was inaccurate. The
    panel also held that Sanchez’s admitted actions were more
    than mere reluctant acquiescence in another’s plan, but were
    rather affirmative acts in violation of § 1182(a)(6)(E)(i).
    COUNSEL
    Alejandro Garcia, Commerce, California, for Petitioner.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    SANCHEZ V . HOLDER                      3
    Tony West, Assistant Attorney General, Richard M. Evans,
    Assistant Director, Andrew Oliveira and Jeffrey R. Leist
    (argued), Trial Attorneys, United States Department of
    Justice, Civil Division, Office of Immigration Litigation,
    Washington, D.C., for Respondent.
    OPINION
    PER CURIAM:
    Griselda Sanchez seeks review of a final order of removal
    issued by the Board of Immigration Appeals (“BIA”). The
    BIA adopted and approved a decision of an immigration
    judge (“IJ”), finding Sanchez inadmissible under 
    8 U.S.C. § 1182
    (a)(6)(E)(i). Because the IJ’s findings are supported
    by substantial evidence, we deny the petition for review.
    I.
    Griselda Sanchez, a native and citizen of Mexico, became
    a legal permanent resident of the United States on May 6,
    2004. On June 26, 2005, Sanchez was detained after seeking
    admission at the Otay Mesa, California, port of entry.
    Sanchez was a passenger in a car driven by her husband. Her
    four children and a five-year-old girl, Andrea Cortez-
    Miranda, were also in the car.
    Border Patrol agents interviewed Sanchez during a
    secondary inspection. The interview was memorialized in a
    Form I-213 (Record of Deportable/Inadmissible Alien),
    which noted the following statements by Sanchez:
    4                   SANCHEZ V . HOLDER
    (1) Griselda Sanchez stated Andrea Cortez-
    Miranda is a daughter of a family from the
    town in Mexico where she, Griselda Sanchez,
    once resided. (2) Griselda Sanchez was
    attempting to cross Andrea Cortez-Miranda
    across the border as a favor for the parents of
    Andrea Cortez-Miranda.           (3) Griselda
    Sanchez stated she provided the birth
    certificate of Karina Padilla-Izaguirre for
    Andrea Cortez-Miranda.           (4) Griselda
    Sanchez stated she was fully aware Andrea
    Cortez-Miranda had no documents to enter,
    pass through or remain in the United States.
    (5) Griselda Sanchez stated she accompanied
    her husband because she did not want him to
    go alone to Tijuana, Mexico. (6) Griselda
    Sanchez stated she was to take Andrea
    Cortez-Miranda to live with her in Paramount,
    California.
    The government subsequently initiated removal
    proceedings, asserting that Sanchez violated § 212(a)(6)(E)(i)
    of the Immigration and Nationality Act, 
    8 U.S.C. § 1182
    (a)(6)(E)(i), by being 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.” At a master calendar hearing, Sanchez admitted that
    she was a native and citizen of Mexico, but otherwise
    contested removability. The government sought to introduce
    Sanchez’s Form I-213 and a translated transcript of her
    interview with Border Patrol officers. Sanchez objected,
    arguing that the Form I-213 was inadmissible hearsay and
    that the transcript had been translated improperly. The IJ
    SANCHEZ V . HOLDER                      5
    granted Sanchez’s motion to suppress the transcript but
    denied her motion to suppress the Form I-213.
    At the final hearing, the only evidence that the
    government presented was the Form I-213; Sanchez
    presented no evidence. After the hearing, the IJ issued a
    decision denying Sanchez’s motion to terminate and finding
    her removable. The IJ based his decision solely on the
    admissions, quoted above, in the Form I-213.
    On appeal, the BIA affirmed without opinion. This
    timely petition for review followed. We have jurisdiction
    pursuant to 
    8 U.S.C. § 1252
    (a)(1).
    II.
    “When the BIA summarily affirms the IJ’s decision, we
    review the IJ’s decision as the final agency action.” Zehatye
    v. Gonzales, 
    453 F.3d 1182
    , 1184 (9th Cir. 2006). The
    government has the burden of establishing the grounds for
    removal by clear and convincing evidence. See Hernandez-
    Guadarrama v. Ashcroft, 
    394 F.3d 674
    , 679 (9th Cir. 2005).
    We review factual findings to determine if they are supported
    by substantial evidence in the record. 
    Id.
    III.
    A.
    Sanchez first argues that the IJ should have excluded the
    Form I-213 from evidence as hearsay because she was not
    given an opportunity to cross-examine the preparer. The
    Federal Rules of Evidence, however, do not apply in
    immigration hearings. See Espinoza v. INS, 
    45 F.3d 308
    , 310
    6                   SANCHEZ V . HOLDER
    (9th Cir. 1995). Rather, “[t]he sole test for admission of
    evidence is whether the evidence is probative and its
    admission is fundamentally fair.” 
    Id.
     Admission of a Form
    I-213 “is fair absent evidence of coercion or that the
    statements are not those of the petitioner.” Id.; see also
    Barradas v. Holder, 
    582 F.3d 754
    , 763 (7th Cir. 2009)
    (“Absent any indication that a Form I-213 contains
    information that is manifestly incorrect or was obtained by
    duress, the BIA has found the Form to be inherently
    trustworthy and admissible as evidence.”).
    Sanchez makes no claim of coercion. Rather, she merely
    argues that the Form I-213’s memorialization of her
    statements was inaccurate. But she provided no basis for the
    IJ to so conclude; indeed, the translation of her interview
    during secondary inspection was excluded from evidence at
    her request. And, although the interview was recorded,
    Sanchez did not attempt during immigration proceedings to
    provide her own translation. The IJ did not abuse his
    discretion by admitting the Form I-213.
    B.
    Sanchez alternatively argues that the Form I-213 simply
    demonstrates that she was a passenger in a car driven by her
    husband. Section 1182(a)(6)(E)(i) is not violated by an
    alien’s mere acquiescence in or knowledge of an illegal entry,
    but rather “requires an affirmative act of help, assistance, or
    encouragement.” Altamirano v. Gonzales, 
    427 F.3d 586
    , 592
    (9th Cir. 2005); see also 
    id. at 596
     (holding that simply being
    a passenger in a vehicle and knowing that undocumented
    aliens are in the trunk cannot constitute the requisite
    affirmative act).
    SANCHEZ V . HOLDER                        7
    Sanchez relies heavily on Aguilar Gonzalez v. Mukasey,
    
    534 F.3d 1204
     (9th Cir. 2008). In that case, the petitioner’s
    father had told her that he planned to bring two
    undocumented infants from Mexico into the United States
    and asked to use her son’s birth certificate for one of the
    infants. 
    Id. at 1206
    . Petitioner reluctantly accompanied her
    father on the trip, and her son’s birth certificate was presented
    to Border Patrol officers during reentry into the United States
    as proof of identity of one of the infants. 
    Id.
     The record did
    not establish that the petitioner had given the birth certificate
    to her father, but only that he obtained it before the trip. 
    Id.
    at 1206–08. Although the petitioner knew that the infants did
    not have legal permission to enter the United States, this court
    nonetheless held that the she was not removable, reasoning
    that she did not commit an affirmative act by acquiescing to
    her father’s request to use her son’s birth certificate or by
    accompanying him on the trip. 
    Id. at 1209
    .
    Sanchez argues that Aguilar Gonzalez controls, because
    she admitted only to having “provided” a false birth
    certificate for Cortez-Miranda and accompanying her
    husband on the trip to Mexico so he would not have to travel
    alone. But there is a critical difference between Aguilar
    Gonzalez and this case. Sanchez admitted that she was
    attempting to cross Cortez-Miranda – whom she was fully
    aware did not have permission to enter – into the United
    States as a “favor” to the girl’s parents, and intended to have
    the girl live with her in California. Thus, Sanchez was more
    than a passive participant in the relevant events — rather, she
    knowingly participated in and aided the attempted entry. Her
    admitted actions were more than mere reluctant acquiescence
    in the plan of another, but were instead affirmative acts in
    violation of § 1182(a)(6)(E)(i).
    8                 SANCHEZ V . HOLDER
    IV.
    Substantial and admissible evidence supported the IJ’s
    finding that Sanchez violated § 1182(a)(6)(E)(i). We
    therefore deny her petition for review.
    DENIED.