U.S. Department of Justice. Executive Office for Immigration Review. Board of Immigration Appeals Office of the Clerk

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1 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals Office of the Clerk 5107 Leesburg Pike, Suite 2000 Falls Church, Virginia Leyba, Gabriel G., Esq. Ggleyva PllC 400 W. Camelback Road, Ste. 116 Phoenix, AZ OHS/ICE Office of Chief Counsel - EAZ P.0. Box Phoenix, AZ Name: GUZMAN-SANCHEZ, MARIA ISA. A Date of this notice: 10/23/2013 Enclosed is a copy of the Board's decision and order in the above-referenced case. Enclosure Panel Members: Adkins-Blanch, Charles K. Cole, Patricia A. Pauley, Roger Sincerely, DOrt.ltL c tvvv Donna Carr Chief Clerk Lulseges Userteam: Docket For more unpublished BIA decisions, visit

2 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals Office of the Clerk 5107 Leesburg Pike, Suite 2000 Falls Church, Virginia GUZMAN-SANCHEZ, MARIA ISABEL A ICE, 1705 E. HANNA RD. ELOY, AZ Name: GUZMAN-SA.NCHEZ, MARIA ISA... A OHS/ICE Office of Chief Counsel - EAZ P.0. Box Phoenix, AZ Date of this notice: 10/23/2013 Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney or representative has been served with this decision pursuant to 8 C.F.R (a). If the attached decision orders that you be removed from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision. Enclosure Panel Members: Adkins-Blanch, Charles K. Cole, Patricia A. Pauley, Roger Sincerely, DOJ1.n4.._ c t1aaj Donna Carr Chief Clerk Lulseges Userteam: Docket

3 ., U.S. Department of Justice Executive Office for Immigration Review Decision of the Board of Immigration Appeals Falls Church, Virginia File: A Eloy, AZ In re: MARIA ISABEL GUZMAN-SANCHEZ Date: lo.cl J 3 ZDJ3 IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Gabriel G. Leyba, Esquire ON BEHALF OF DHS: Brett A. Day Assistant Chief Counsel CHARGE: Notice: Sec. 237(a}(l){E)(i}, I&N Act [8 U.S.C. 1227(a)(l)(E)(i)] - Alien smuggler APPLICATION: Termination The respondent, a native and citizen of Mexico, timely appeals an Immigration Judge's decision dated April 2, The Immigration Judge found the respondent to be removable as charged under the sole charge of deportability, and, in the absence of any applications for relief from removal, ordered the respondent removed from the United States to Mexico. On appeal, the respondent contests the Immigration Judge's finding of removability. The appeal will be sustained, and removal proceedings will be terminated. The Immigration Judge found that, based on the testimony of a Department of Homeland Security ("DHS") Special Agent and two Border Patrol Agents, as well as documentary evidence of record including an 1-213, Record of Deportable/Inadmissible Agent, the DHS had established by clear and convincing evidence that the respondent was deportable under section 237(a}{l)(E)(i) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. 1227(a)(l)(E)(i), as one who had, within 5 years of the date of her last entry, knowingly encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law (l.j. at 7-15). Specifically, the Immigration Judge found that the evidence showed that the respondent provided "secondary" stateside transportation for the Rigoberto Sanchez-Trejo Alien Smuggling Organization ("ASO"), which operated in the area of the United States-Mexico border town of 1 The Immigration Judge's April 2, 2013, decision, which dealt only with the issue of whether the respondent is eligible for relief from removal, incorporated by reference her earlier March 25, 2013, decision addressing the respondent's removability. As the only issue on appeal is whether the Immigration Judge correctly found the respondent to be removable as charged, all references to the Immigration Judge's decision are to the March 25, 2013, decision.

4 A Sells, Arizona (l.j. at 12). The process for smuggling, as described by the border agents and as found by the Immigration Judge, involved ASO foot-guides bringing aliens from Mexico over the border by foot through inhospitable desert terrain over a period of several days to the town of Sells, Arizona. At that point, the aliens would either get into a vehicle driven by other ASO drivers, or, in some cases, the foot-guide would himself drive the aliens in a vehicle which had been left for him at a pre-arranged location by the ASO. The aliens would then be taken to either Phoenix or Tucson, where they would generally pay the ASO for their services in smuggling them into the United States (l.j. at 2-7, 9-14 ). It is alleged that the respondent was involved in this second step of the process, coordinating and arranging transportation vehicles from Sells, Arizona to points further inland (either Phoenix or Tucson), and was observed driving scout vehicles to assist the transport vehicles to avoid detection and interception by border patrol agents. Under section 237(a)(l)(E)(i) of the Act, "[a]ny alien who (prior to the date of entry, at the time of any entry, or within five years of any entry) knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is deportable." Thus, by its own terms, an alien may be found to be removable under section 237(a)( l ){E)(i) of the Act for either: (1) "assisting an alien" to unlawfully enter the United States; or (2) "encouraging, inducing, aiding or abetting" an alien's unlawful entry. The Immigration Judge found that the respondent was removable for alien smuggling under both of these alternative prongs. Under the first prong, a respondent is removable for "assisting aliens" to unlawfully enter the United States if she was involved in "bringing" the aliens to the United States. United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en bane). The focus of the analysis is on the respondent's participation in the "initial transportation" to the aliens to the United States. Id. In addition, a "bringing to" or "smuggling" offense "does not terminate until the initial transporter who brings the aliens to the United States ceases to transport them-in other words, the offense continues until the initial transporter drops off the aliens on U.S. side of the border." Id at Under Ninth Circuit law, alien smuggling does not end once the alien crosses the border. Id at However, the Ninth Circuit has rejected the argument that a "brings to" offense continues until the illegal aliens reach their "ultimate destination" in the United States. Id. at The respondent argues that she cannot be found to have assisted an alien to unlawfully enter the United States because she was not involved in the "initial transportation" of the aliens, but rather only the "secondary transportation" of the aliens once they had already crossed the border. The Immigration Judge found that the evidence connected the respondent to activities that occurred before the foot-guides, who transported the aliens across the border, terminated their act of transportation and dropped off the aliens (I.J. at 9). In this regard, she found that the evidence showed that the Sanchez-Trejo ASO coordinated with smugglers in Nogales, Sonora, Mexico, and that the smugglers in Sonora would contact the ringleader of the ASO to arrange for vehicular transportation of the aliens from an inhospitable desert area in Sells, Arizona, further inland. The Immigration Judge found that based on the testimony of the agents as to the expectations of the aliens and the scheme set up, "the initial transportation of the aliens continued at least beyond Sells, Arizona: a desolate and rugged area with increased border-patrol presence where the smuggled aliens had no expectation of being 'dropped off" (l.j. at 10). 2

5 A However, the Immigration Judge's finding were based on the testimony of three DHS agents: the testimony of Agent Gavin Weidman, a special agent with DHS Investigations in the Tucson, Arizona office, who conducted an investigation into the respondent's activities in the investigation and did not involve issues of the ASO's involvement in any "initial transportation" of aliens from Mexico into the United States (Tr. at 31-32). Similarly, Agent Roberto Teran, a Supervisory Border Patrol Agent assigned to the Tucson Sector Border Patrol tactical team, linked the respondent only to secondary transportation within the United States (Tr. at ). Specifically, he indicated that his investigation of the Sanchez-Trejo ASO did not involve any of the crossings of aliens into the United States "south of Sells" (Tr. at 208). Finally, Agent Eduardo Berlanga, a Border Patrol Agent working out of the Tucson, Arizona office, indicated that he had never personally witnessed the respondent arranging for, or transporting, aliens across the border from Mexico into the United States (Tr. at ). Rather, he testified that, to his knowledge, all of the transportation of aliens by the smuggling ring was wholly within the United States, from locations in Sells, Arizona to Tucson and Phoenix (Tr. at ). Indeed, none of the three agents who testified indicated that they had any personal knowledge of the respondent's involvement in transporting aliens into the United States. As such, we find that the DHS has not established by evidence that is clear and convincing, that the respondent participated in the "initial transportation" of aliens into the United States. Under the second prong, a respondent is removable for knowingly encouraging, inducing, abetting, or aiding an illegal entry, even if he or she was not actually involved in the initial transportation. See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005). Rather, if the respondent "knowingly participated in a prearranged plan to bring [illegal aliens] to the border, and... to meet them on the other side of the border, [she] falls under the purview of the statute." Id. at 679 (quoting with approval the Board's decision being reviewed in Hernandez-Guadarrama); see also Altamirano v. Gonzales, 427 F.3d 586, 592 (9th Cir. 2005); Matter of Vargas-Banuelos, 13 I&N Dec. 810, 812 (BIA 1971) (finding an alien removable where the alien pre-arranged in Mexico to assist aliens to enter the United States, instructed them where to cross the border, told them where to go in the United States, and arranged for a driver to pick them up once they entered). Where the respondent picks up aliens near the border, the focus is on whether there was pre-arrangement. In this regard, the Ninth Circuit has left open the possibility that an aiding and abetting charge could be sustained where "a smuggling operation 'relies on' a secondary, state-side transporter-in the sense that the secondary transporter's agreement to participate induces or encourages the commission of the initial, extraterritorial 'brings to' offense." United States v. Singh, 532 F.3d 1053, 1058 (9th Cir. 2008) (citing United States v. Lopez, supra, at 1201 n.19). However, there must be sufficient evidence demonstrating that the respondent's transportation of aliens in the United States was part of a pre-arranged plan to bring illegal aliens into the United States. See generally Altamirano v. Gonzales, supra. On appeal, the respondent argues that the Immigration Judge incorrectly found that the respondent was part of a pre-arranged plan to bring aliens into the United States. In this regard, much of the respondent's argument on appeal focuses on the fact that some of the evidence relied upon to show this pre-arrangement, including the information contained in the I-213, was impermissible hearsay. In addition, she argues that the testimony of the three government witnesses, including their statements as to the respondent's involvement in the Rigoberto Sanchez-Trejo AGO, were the product of hearsay, as they were based in part on their interviews 3

6 A with confidential informants who were not made available to testify. Initially, we note that hearsay is admissible in immigration proceedings. Espinoza v. INS, 45 F.3d 308 (9th Cir. 1995). Indeed, the "[t]he sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair." Id. at 310. After hearing arguments and evaluating the testimony, the Immigration Judge found the Form was admissible (l.j. at 2, n.3). We find no basis to disturb this determination. However, while we agree that the was admissible, we agree with the respondent that much of the information contained therein was of questionable reliability. In this regard, the Form I-213, Record of Deportable/Inadmissible Alien, mentions two instances in which the Sanchez-Trejo AGO was involved in cross-border activity (Exh. 3 at 4, 12; Tr. at 56-57). However, on questioning Agent Weidman stated that these accounts had come from unnamed and unidentified informants (Tr. at 60-65, 89-90). Notably, the respondent's counsel repeatedly challenged the reliability of these unnamed sources. In addition, on questioning Agent Berlanga acknowledged that the statements of such informants was "sometimes" unreliable, as the informants-who had been involved in illegal activities themselves-had incentive to give wrong information, either due to threats by the foot guides, or to avoid being prosecuted themselves (Tr. at ). Although the respondent was involved in transporting aliens from Sells, Arizona, to points further inland, such activity, by itself, does not establish prearrangement, or aiding and abetting alien smuggling. The Ninth Circuit has held that the mere act of picking up aliens at a location near the border and transporting them within the United States is not sufficient to support a charge for aiding and abetting alien smuggling because it does not necessarily show pre-arrangement since "drivers themselves are fungible and need not be in place before an alien is smuggled across the border [and] the particular driver on any leg of a trip may change." United States v. Noriega-Perez, 670 F.3d 1033, (9th Cir. 2012). The Immigration Judge found that the smuggling operation relied on the respondent and the ASO to provide "secondary, state-side transportation" and therefore found this case more analogous to United States v. Singh, supra, where the alien agreed to transport the aliens once they were in the United States and agreed to collect certain fraudulent passports from the aliens and send them back to the smuggling organization, which was important to "ensuring the continued operation" of the smuggling organization, such that it constituted "aiding and abetting" the smuggling of the aliens (l.j. at 12). The Immigration Judge noted the account of one of the patrol agents, Agent Berlanga, who testified that during one instance where the respondent was associated with guiding a smuggling vehicle from Sells, Arizona further inland, one of the aliens in the vehicle was later interviewed, and stated that he had been smuggled into the United States in order to become a driver of the ASO {Tr. at ). Thus, the Immigration Judge concluded that "[t]his is not only evidence of pre-arrangement but, similar to Singh, it is evidence that the respondent was involved in coordinating the transportation of an individual who was important to "ensuring the continued operation" of the smuggling organization (I.J. at 12). However, we find that the single instance cited by the Immigration Judge is insufficient to establish that the respondent aided and abetted the smuggling of aliens. There is insufficient evidence of pre-arrangement by the respondent to bring aliens into the United States. Notably, there is no testimony nor finding that the respondent was aware of the identity of the passengers 4

7 A she transported, much less that she was aware that one of these passengers had come to the United States to be an ASO driver himself. In sum, we find a lack of reliable evidence that the respondent arranged or pre-arranged illegal border crossings by aliens, and thus was involved in the "initial transportation" of aliens, or knowingly encouraged, induced, abetted, or aided an illegal entry, even if she was not actually involved in the initial transportation. Therefore, we agree with the respondent that the DHS has not met its burden of showing that the respondent is deportable as an alien smuggler. Accordingly, we will terminate removal proceedings in this matter. Accordingly, the following order will be entered. ORDER: The appeal is sustained, and removal proceedings are terminated. Board Member Roger A. Pauley respectfully dissents without opinion. 5

8 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT ELOY, ARIZONA File: AOB? In the Matter of MARIA ISABEL Gl)ZMAN-SANCHEZ RESPONDENT CHARGES: APPLICATIONS: ON BEHALF OF RESPONDENT: GABRIEL LEYBA, ESQUIRE ) ) ) ) April 2, 2013 IN REMOVAL PROCEEDINGS 400 West Camelback Road, Suite 116 Phoenix, Arizona ON BEHALF OF OHS: BRETT DAY, ASSISTANT CHIEF COUNSEL I. Procedural History Department of Homeland Security 1705 East Hanna Road Eloy, Arizona ORDER AND DECISION OF THE IMMIGRATION COURT The respondent is a citizen of Mexico who became a lawful permanent resident of the United States on March 2, (Exhibit 1, Form ) On November 19, 2012, the respondent was arrested for her alleged participation in an alien smuggling organization operating near Sells, Arizona. (Exhibit 3, Form ) The Department on November 19, 2012, issued a Notice to Appear (Form 1-862). The filing of the Notice to 1

9 . ) : ' Appear on December 3, 2012, initiated removal proceedings against the respondent. The Department charged the respondent with being subject to removal pursuant to Section 237(a)(1)(E)(i) of the Immigration and Nationality Act, as amended, in that prior to the date of her entry, at the time of any entry, or within five years of the date of any entry, she knowingly encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law. (Form 1-862, 1.) Subsequently, the Department of Homeland Security filed a Form 1-261, additional charges of inadmissibility/deportability. (Exhibit 1-A.) The Department further alleged that from September 28, 2010, through October 2, 2012, the respondent, as a member of the Rigoberto Sanchez Trejo alien smuggling organization, did encourage, induce, assist, abet, or aid an unknown number of aliens to enter or to try to enter the United States. (Exhibit 1-A, 1.) In addition, the Department alleged that on, but not limited to, September 8, 2011, she attempted to prevent the apprehension of approximately 12 to 14 illegal aliens, by interfering with border patrol's pursuit of those aliens. (Id.) On, but not limited to, February 1, 2012, during the apprehension of 16 illegal aliens, the respondent was identified by an alien smuggling guide as an active member of the Rigoberto Sanchez Trejo alien smuggling organization, and the Department further alleged that the respondent did knowingly encourage, induce, assist, abet, or aid aliens to enter or try to enter the United States. (kl) On March 25, 2013, this Court issued an order sustaining the charge of removal. As a result of the Court's having sustained removal pursuant to INA Section 237(a)(1 )(E)(i) of the Act, the respondent is subject to removal and there appears to be no alternative forms of relief available to her. The Court incorporates by reference its findings of the March 25, 2013, order. A April 2, 2013

10 !f. II. Legal Analysis and Findings of Law Based on a thorough review of all evidence of record, the Court finds that the respondent's removability has been established and that she has not established any alternative forms of relief that may be available to her and is therefore removable as charged pursuant to INA Section 237(a)(1 )(E)(i). Initially, the respondent expressed interest in voluntary departure under INA Section 240B(b); however, the parties agree that respondent appears not to be statutorily eligible for this form of relief. The respondent expressed no fear of returning to her home country of Mexico and therefore no alternative relief is available. Removability has been established by clear and convincing evidence and therefore the Court will issue an order Conclusion In that the respondent has not applied for or sought any forms of relief for which she may be eligible, this Court will enter the following order: ORDER IT IS ORDERED that the respondent be removed from the United States to Mexico. IRENE C. FELDMAN U.S. Immigration Judge APPEAL RIGHTS: Both parties have the right to appeal the decision of the Immigration Judge in this case. Any appeal is due in the hands of the Board of Immigration Appeals on or before 30 calendar days from the date of service of this decision. Today is April 2, Thirty days from today is May 2, The Court will reserve the respondent's right to appeal. A April 2, 2013

11 CERTIFICATE PAGE I hereby certify that the attached proceeding before JUDGE IRENE C. FELDMAN, in the matter of: MARIA ISABEL GUZMAN-SANCHEZ A ELOY, ARIZONA was held as herein appears, and that this is the original transcript thereof for the file of the Executive Office for Immigration Review. -- SANDRA L. DUNCAN (Transcriber) FREE STATE REPORTING, lnc.-2 APRIL 28, 2013 (Completion Date)