Emma Altamirano v. Alberto R. Gonzales, Attorney General

Emma Altamirano (“Altamirano”) petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming, in a streamlined decision, the Immigration Judge’s (“IJ”) decision denying Altamira-no’s motion to terminate removal proceedings against her and finding that Altamira-no is inadmissable because she engaged in alien smuggling in violation of § 212(a)(6)(E)(i) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1182 (a)(6)(E)(i) (Supp. V 1999). 1 The INS sought to remove Altamirano when she attempted to enter the United States in a vehicle in which an illegal alien was hiding in the trunk. Altamirano does not dispute that she knew the alien was in the trunk when the vehicle, attempted to pass through the port of entry. Altamirano contends, however, that because she did not affirmatively assist the alien in attempting to enter the United States, she did not engage in alien smuggling. In addition, Altamirano argues that the BIA impermissibly streamlined her appeal. The government argues, however, that § 212(a)(6)(E)(i)’s prohibition against alien smuggling encompasses Altamirano’s conduct, and therefore that the IJ properly determined that she is inadmissible.…

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…

427 F.3d 586 Emma ALTAMIRANO, Petitioner, v. Alberto R. GONZALES, * Attorney General, Respondent. No. 03-70737. United States Court of Appeals, Ninth Circuit. Argued December 9, 2004. Submitted and Filed October 31, 2005. COPYRIGHT MATERIAL OMITTED Kevin Bove, Esq., Escondido, CA, for the petitioner. Peter D. Keisler, Assistant Attorney General, Civil Division, Ernesto H. Molina, Jr., M. Jocelyn Lopez Wright, Alison R. Drucker, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Apu-iuz-fqq. Before: B. FLETCHER, RYMER, and PAEZ, Circuit Judges. PAEZ, Circuit Judge. 1 Emma Altamirano ("Altamirano") petitions for review of the Board of Immigration Appeals' ("BIA") order affirming, in a streamlined decision, the Immigration Judge's ("IJ") decision denying Altamirano's motion to terminate removal proceedings against her and finding that Altamirano is inadmissable because she engaged in alien smuggling in violation of § 212(a)(6)(E)(i) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1182…