Aguilar Gonzalez v. Mukasey

Opinion by Judge BETTY B. FLETCHER; Dissent by Judge N.R. SMITH.

Modesta Aguilar Gonzalez petitions for review of the Board of Immigration Appeals’ (BIA) order affirming, in a streamlined decision, the Immigration Judge’s (IJ) decision denying her motion to terminate removal proceedings against her and finding that she is inadmissible under INA § 212(a)(6)(E)©, 8 U.S.C. § 1182 (a)(6)(E)(i), because she assisted in the smuggling of two undocumented alien minors into the United States. She was placed in removal proceedings after she attempted to enter the United States in a vehicle that carried two undocumented infants. Earlier that day, Modesta had left California with her family, knowing that her father planned on using her U.S.-citizen son’s birth certificate to pass one of the two infants into the United States. *1206 The issue before us is whether Modesta’s presence and acquiescence in her father’s plan was sufficient to sustain a finding that she aided and abetted an alien to try to enter the United States in violation of law. 1

We have jurisdiction under 8 U.S.C. § 1252 to review a final order of removal. We hold that Modesta’s mere presence and acquiescence does not…

dissenting:

There is no doubt that the facts underlying this case are unfortunate. It is not even a stretch to call them unfair. Modes-ta’s father, the mastermind and driving force behind the alien smuggling for which Modesta was charged, was ultimately granted cancellation of removal and allowed to stay in the United States. Modesta, who reluctantly participated in the smuggling at the insistence of her father, was ineligible for such relief and found removable. However, we are not free to stretch the law to avoid results that we do not like. In my view, the majority has done so here and I respectfully dissent.

In one respect, the facts of this case nearly mirror those of Altamirano v. Gonzales, 427 F.3d 586 (9th Cir.2005). There, we held that a petitioner’s mere presence in a vehicle with knowledge of a plan to smuggle an undocumented alien across the border in the trunk of the vehicle did not constitute alien smuggling under INA § 212(a)(6)(E)®. Id. at 595-96. We held that INA § 212(a)(6)(E)® is not violated absent “an affirmative act of assistance or encouragement.” Id. at 596. Like the petitioner in Altamirano , Modesta was present in a vehicle and had knowledge of her…

Lenore A. Ceithaml, San Diego, CA, for the petitioner.

Eric W. Marsteller, U.S. Department of Justice, Civil Division, Washington, D.C., for the respondent.

Before: B. FLETCHER and N. RANDY SMITH, Circuit Judges, and SAMUEL P. KING, [*] District Judge.

Opinion by Judge BETTY B. FLETCHER; Dissent by Judge N.R. SMITH.

BETTY B. FLETCHER, Circuit Judge:

Modesta Aguilar Gonzalez petitions for review of the Board of Immigration Appeals' (BIA) order affirming, in a streamlined decision, the Immigration Judge's (IJ) decision denying her motion to terminate removal proceedings against her and finding that she is inadmissible under INA § 212(a)(6)(E)(i), 8 U.S.C. § 1182 (a)(6)(E)(i), because she assisted in the smuggling of two undocumented alien minors into the United States. She was placed in removal proceedings after she attempted to enter the United States in a vehicle that carried two undocumented infants. Earlier that day, Modesta had left California with her family, knowing that her father planned on using her U.S.-citizen son's birth certificate to pass one of the two infants into the United States. The issue before us is whether Modesta's presence and acquiescence in her…