Higareda-Cristerna

MEMORANDUM ***

Petitioner Jose Manuel Higareda-Cris-terna appeals a final order of removal affirmed by the Board of Immigration Appeals (“BIA”). The BIA adopted the Immigration Judge’s (“IJ”) order to the extent that the IJ found that Higareda-Cristerna knowingly engaged in alien smuggling and to the extent that the IJ denied Higareda-Cristerna’s application for cancellation of removal as a matter of discretion. We deny the petition.

The agency has the burden of proving that Higareda-Cristerna “knowingly encouraged, induced, assisted, abetted, or aided in alien smuggling,” see 8 U.S.C. § 1227 (a)(l)(E)(i), by “clear and convincing evidence,” id. § 1229a(c)(3)(A). See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 676 (9th Cir.2005). We “review for reasonable, substantial, and probative evidence in the record as a whole, [and] ... affirm only if the agency has successfully carried this heavy burden of clear, unequivocal, and convincing evidence.” Id. at 679 (internal quotation marks omitted; alteration omitted).

Four border patrol agents testified that they witnessed the smuggling incident, and two identified Higareda-Cristerna as an active participant. Although…