concurring in part and dissenting in part:

I agree that the immigration judge improperly placed the burden of proof regarding inadmissibility on the government rather than on Altamirano. And while I generally agree with the majority’s construction of § 212(a)(6)(E)® of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182 (a)(6)(E)(i), and the well-established aiding and abetting principles which it embodies, I part company over the application of those principles and the statute to the facts of this case.

I do not think the IJ was compelled to find that Altamirano did not affirmatively assist or encourage her husband and father-in-law. The question is not whether Altamirano’s knowledge of illegal activity and mere presence in the car suffice to bring her within the terms of the statute, but whether her deliberate presence in the car when it crossed the border, knowing that her husband and father-in-law were smuggling an illegal alien in the trunk of the car, supports a finding that she joined them in the ear and stayed in the car for the purpose of facilitating the smuggling. It does, because Altamirano’s getting into the car and not getting out at the border were affirmative acts that assisted the alien smuggling plan by making it less likely that the car would be stopped. Alta-mirano knew about her husband’s and father-in-law’s plan to smuggle Martinez-Marin into the country in the trunk of the car when she agreed to travel with them from Tijuana back to Ramona at 4:30 a.m. She admitted that no one forced her to go with them. Altamirano also knew that she could have left the car and walked across the border, rather than remain as a passenger, when the car reached the primary inspection station. And, contrary to the account her husband gave about the reason they were returning to the United States and why Altamirano had to come along, she could not give a coherent explanation of the reason for their trip. Together, these facts support a reasonable inference that Altamirano was fully on board the program, thereby affirmatively helping to bring the illegal alien across the border.

I would, therefore, deny the petition.