                                                                          FILED
                            NOT FOR PUBLICATION                            APR 17 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


ALFONSO RAMIREZ-HERRERA, )                    No. 10-72498
                              )
     Petitioner,              )               Agency No. A078-119-847
                              )
     v.                       )               MEMORANDUM*
                              )
ERIC H. HOLDER, Jr., Attorney )
General,                      )
                              )
     Respondent.              )
                              )

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                             Submitted April 7, 2014**
                               Pasadena, California

Before: FERNANDEZ, N.R. SMITH, and MURGUIA, Circuit Judges.

      Alfonso Ramirez-Herrera, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ denial of his motion to remand to the

Immigration Judge for further proceedings. We deny the petition.

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
      On May 16, 2007, the IJ determined that the government had carried its

burden of proving1 that Ramirez, a legal permanent resident, was inadmissible

because he had “engaged in illegal activity” after he departed the United States;2

that is, he engaged in alien smuggling.3 On March 9, 2009, the BIA agreed, but in

so doing it erroneously applied a standard that placed the burden of persuasion on

Ramirez. Due to that error, on the government’s motion, we remanded the case to

the BIA so that the correct standard could be applied. On July 16, 2010, the BIA,

once again, agreed with the IJ and, in so doing, correctly placed the burden of

persuasion on the government. It saw no reason to remand to the IJ, who had

already applied the correct standard, nor do we. In short, the BIA’s decision to

deny Ramirez’s motion to remand was not an abuse of discretion. See Movsisian

v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005); see also Shin v. Mukasey, 547

F.3d 1019, 1025 (9th Cir. 2008). Nor has Ramirez shown that the proceedings

were fundamentally unfair. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.

2000).


      1
       That placement of the burden was correct. See Santiago-Rodriguez v.
Holder, 657 F.3d 820, 829 (9th Cir. 2011); Hernandez-Guadarrama v. Ashcroft,
394 F.3d 674, 680 (9th Cir. 2005).
      2
          8 U.S.C. § 1101(a)(13)(C)(iii).
      3
          See Urzua Covarrubias v. Gonzales, 487 F.3d 742, 746, 748 (9th Cir. 2007).

                                            2
      Ramirez also suggests that the evidence was insufficient to support a finding

that he had engaged in alien smuggling activities after he departed the United

States. We disagree. On the record before us, we are unable to say that the

evidence compels a conclusion contrary to that reached by the BIA. See INS v.

Elias-Zacarias, 502 U.S. 478, 481 & n.1, 483–84, 112 S. Ct. 812, 815 & n.1, 817,

117 L. Ed. 2d 38 (1992); Gonzaga-Ortega v. Holder, 736 F.3d 795, 800–01 (9th

Cir. 2013). On the contrary, a reasonable fact-finder could determine that “clear,

unequivocal, and convincing evidence”4 supported the conclusion that Ramirez

engaged in those activities. Among other things, Ramirez’s untruthful statements

to Customs and Border Patrol officers lend strong support to the BIA’s

conclusions. See Li v. Holder, 738 F.3d 1160, 1163 (9th Cir. 2013); Moran v.

Ashcroft, 395 F.3d 1089, 1091–92 (9th Cir. 2005), overruled on other grounds by

Sanchez v. Holder, 560 F.3d 1028, 1030–31, 1034 (9th Cir. 2009) (en banc); see

also Abufayad v. Holder, 632 F.3d 623, 631 (9th Cir. 2011).

      Petition DENIED.




      4
      Santiago-Rodriguez, 657 F.3d at 829 (internal quotation marks omitted);
Hernandez-Guadarrama, 394 F.3d at 679 (internal quotation marks omitted).

                                          3
