                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 27 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ANALIA AGUAYO-VILLEGAS,                          No. 08-70310

               Petitioner,                       Agency No. A077-170-876

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted August 10, 2010 **

Before:        O’SCANNLAIN, HAWKINS, and IKUTA, Circuit Judges.

       Analia Aguayo-Villegas, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an

immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252.

We review de novo questions of law and due process claims, and for substantial


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
evidence the agency’s factual findings. Mohammed v. Gonzales, 400 F.3d 785,

791-92 (9th Cir. 2005). We deny the petition for review.

      Substantial evidence supports the agency’s conclusion that Aguayo-Villegas

participated in alien smuggling as defined in 8 U.S.C. § 1182(a)(6)(E)(i). The

record establishes that Aguayo-Villegas was not merely present in the vehicle, but

she actively participated in the smuggling scheme and conceded she acted with the

intention of assisting the alien passengers to enter the United States in violation of

law. See Urzua Covarrubias v. Gonzales, 487 F.3d 742, 748-49 (9th Cir. 2007)

(knowing act of assistance to another’s effort to enter the United States illegally is

an affirmative act under the statute). She therefore “provided some form of

affirmative assistance to the illegally entering alien.” Cf. Altamirano v. Gonzales,

427 F.3d 586, 592, 594 (9th Cir. 2005) (an alien who provides no affirmative act of

assistance does not come under the statute’s purview).

      Aguayo-Villegas’ contention that her statements reflected in the Form I-213

(Record of Deportable/Inadmissible Alien) were obtained in violation of 8 C.F.R.

§ 287.3(c) is not persuasive because it does not apply to her as she was not in

proceedings. See Samayoa-Martinez v. Holder, 558 F.3d 897, 901-02 (9th Cir.

2009) (holding that section 287.3(c)’s protections apply only after a Notice to

Appear has been filed in the immigration court).


                                           2                                      08-70310
      Aguayo-Villegas’ due process rights were not violated by the admission of

her Form I-213 and the Report of Investigation (Form G-166) because the forms

were probative, and their admission was not fundamentally unfair. See Espinoza v.

INS, 45 F.3d 308, 310-11 (9th Cir. 1995) (noting that “[t]he sole test for admission

of evidence [in a deportation proceeding] is whether the evidence is probative and

its admission is fundamentally fair,” and rejecting argument that a Form I-213 is

inadmissible as hearsay). Aguayo-Villegas had the opportunity to cross examine

the preparer of the forms and she produced no probative evidence that cast doubt

on the documents’ reliability.

      PETITION FOR REVIEW DENIED.




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