Griselda Sanchez v. Eric H. Holder Jr. , 704 F.3d 1107 ( 2012 )

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.