Antonio Perez-Arceo v. Loretta E. Lynch
2016 U.S. App. LEXIS 8713
| 9th Cir. | 2016Background
- Antonio Perez-Arceo, a lawful permanent resident, was charged with removability under 8 U.S.C. § 1182(a)(6)(E)(i) for allegedly aiding smuggling of two undocumented relatives during a family van trip from Mexico to the Otay Mesa port of entry.
- At the border, three family members were separately interviewed: Juan (son) initially implicated Antonio, Micaela (wife) admitted arranging and paying for documents and later conceded removability, and Antonio stated he did not know about the two women until near the border.
- Juan later submitted a retraction and testified at the hearing that he lied at the border out of fear for his mother’s children; Juan and Antonio both testified that Micaela arranged the smuggling and hid the women from Antonio.
- The IJ found Micaela credible and removable, found Juan and Antonio not credible, and held all three removable; the BIA affirmed the IJ’s credibility determinations.
- The Ninth Circuit reviewed whether the IJ provided legally sufficient, noncontradictory credibility findings and whether the record supports a finding that Antonio took an "affirmative act" necessary for smuggling removability.
Issues
| Issue | Plaintiff's Argument (Perez-Arceo) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether IJ’s adverse credibility findings as to Juan and Antonio were supported by substantial evidence | IJ relied on flawed or minor inconsistencies; many alleged discrepancies were misstated or unexplained | IJ permissibly credited border statements over later recantations and gave weight to officer testimony denying threats | Court held several of the IJ’s stated inconsistencies were insufficient or mischaracterized and thus cannot fully support the adverse credibility findings |
| Whether IJ’s findings were internally consistent given he credited Micaela but discredited Juan and Antonio | Crediting Micaela’s testimony (that she alone arranged smuggling) is inconsistent with finding Antonio guilty absent an affirmative act | Government argues contemporaneous border statements could be credited to find Antonio complicit despite Micaela’s testimony | Court held IJ’s reasoning was internally inconsistent: IJ credited Micaela to remove her but relied on discrediting others to remove Antonio without explaining why Micaela’s admissions were not dispositive |
| Whether mere knowledge suffices for removability under § 1182(a)(6)(E)(i) | Antonio argued mere awareness is insufficient; an affirmative act is required | Government contended record supports that Antonio engaged in affirmative acts (per Juan’s initial statement) | Court reaffirmed that an affirmative act is required and found the IJ made no explicit finding of such an act for Antonio |
| Remedy: whether to remand or deny relief | Perez-Arceo sought grant/remand for proper factfinding and explanation | Government sought affirmation of IJ/BIA decision | Court granted petition and remanded for further proceedings and explanation on credibility and any affirmative-act findings |
Key Cases Cited
- Altamirano v. Gonzales, 427 F.3d 586 (9th Cir. 2005) (alien-smuggling inadmissibility requires an affirmative act beyond mere knowledge)
- Santiago-Rodriguez v. Holder, 657 F.3d 820 (9th Cir. 2011) (government must prove by clear and convincing evidence an affirmative act to remove on smuggling grounds)
- Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010) (standards for IJ credibility determinations; must consider totality of circumstances and give cogent reasons)
- Soto-Olarte v. Holder, 555 F.3d 1089 (9th Cir. 2009) (IJ/BIA must inquire into and consider explanations for inconsistencies; flawed adverse credibility findings require remand)