434 F. App'x 626
9th Cir.2011Background
- Avina-Renteria, a native of Mexico and lawful permanent resident, challenges a BIA order affirming his removability for alien smuggling under 8 U.S.C. § 1182(a)(6)(E)(i) and the denial of his motions to reopen and reconsider.
- The IJ found Avina-Renteria removable as charged; the government bore the burden to prove removability by clear, unequivocal, and convincing evidence.
- Counsel admitted the factual allegation of alien smuggling but with a proviso that Avina-Renteria might be eligible for a waiver due to familial ties to the children in the vehicle.
- The IJ did not ask Avina-Renteria or counsel whether removability was conceded, and the court held no express admission of removability occurred.
- The record showed Avina-Renteria’s knowledge that the children were undocumented, and there was conflicting evidence about whether Avina-Renteria was the driver.
- The BIA denied the motion to reopen/reconsider; the Ninth Circuit vacated and remanded for a new factual hearing on removability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removability was shown by clear, convincing evidence | Avina-Renteria | Government | Remand for factual determination on removability |
| Effect of counsel’s proviso to the admission | Avina-Renteria’s counsel’s proviso undermines admission | Govt relied on admission plus evidence | Proviso does not validate lack of removability; remand required |
| Whether driving the vehicle constitutes an affirmative act | Avina-Renteria provided affirmative participation | Driving may be affirmative act; evidence insufficient | Remand for factual hearing on driver status |
| Scope of review for motions to reconsider | BIA abused discretion | BIA acted within discretion | Remand to IJ; grant of petition for review |
| Impact of evidence sources (1-213, admissions, etc.) | 1-213 and admissions support removability | Evidence insufficient without a clear admission | Remand for full factual hearing |
Key Cases Cited
- Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674 (9th Cir. 2005) (burden to prove removability by clear, convincing evidence)
- Shin v. Mukasey, 547 F.3d 1019 (9th Cir. 2008) (counsel expressly concede removability suffices when supported)
- Altamirano v. Gonzales, 427 F.3d 586 (9th Cir. 2005) (affirmative assistance required for alien smuggling)
- Perez-Mejia v. Holder, 641 F.3d 1143 (9th Cir. 2011) ( IJ may rely on admissions to establish removability when appropriate)
- Cortez-Acosta v. INS, 234 F.3d 476 (9th Cir. 2000) (failure to contest admissions cannot meet government burden)
- Tejeda-Mata v. INS, 626 F.2d 721 (9th Cir. 1980) (1-213 forms presumptively reliable evidence of removability)