                                                                              FILED
                            NOT FOR PUBLICATION                               MAY 23 2011

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



                            FOR THE NINTH CIRCUIT


FRANCISCO AVINA-RENTERIA,                        No. 06-73998

              Petitioner,                        Agency No. A090-023-370

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

              Respondent.



FRANCISCO AVINA-RENTERIA,                        No. 06-74631

              Petitioner,                        Agency No. A090-023-370

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                      Argued and Submitted February 7, 2011
                               Pasadena, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PREGERSON, WARDLAW, and BEA, Circuit Judges.

      Francisco Avina-Renteria, a native and citizen of Mexico and a lawful

permanent resident of the United States, seeks review of (1) the Board of

Immigration Appeals’ (“BIA”) order summarily affirming his removability for

alien smuggling under 8 U.S.C. § 1182(a)(6)(E)(i), and (2) the BIA’s denial of his

motions to reopen and reconsider. We have jurisdiction under 8 U.S.C. § 1252,

and we grant the consolidated petition for review.1

       Because the BIA affirmed the decision of the Immigration Judge (“IJ”)

without opinion, we review the IJ’s decision. Kebede v. Ashcroft, 366 F.3d 808,

809 (9th Cir. 2004). We review the IJ’s legal conclusions de novo and the IJ’s

factual findings for substantial evidence. Aguilar Gonzalez v. Mukasey, 534 F.3d

1204, 1208 (9th Cir. 2008). The BIA’s denial of a motion to reopen and for

reconsideration is reviewed for abuse of discretion and we “reverse only if the

Board acted arbitrarily, irrationally, or contrary to law.” Mohammed v. Gonzales,

400 F.3d 785, 791 (9th Cir. 2005).

      The government bears the burden of establishing Avina-Renteria’s

removability for alien smuggling by “clear, unequivocal, and convincing

      1
        Because we remand for a new hearing as to removability, we do not reach
petitioner’s arguments with respect to cancellation of removal and ineffective
assistance of counsel.

                                         2
evidence.” Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005)

(citing Gameros-Hernandez v. INS, 883 F.2d 839, 841 (9th Cir. 1989)); see also 8

U.S.C. § 1229a(c)(3)(A). Thus, although we review the IJ’s findings of fact

establishing removability for “reasonable, substantial, and probative evidence . . . ,

we affirm [a finding of removability] only if the agency has successfully carried

this heavy burden of clear, unequivocal, and convincing evidence.” Hernandez-

Guadarrama, 394 F.3d at 679 (internal quotation marks omitted).

      If “petitioner's counsel expressly concede[s] removability[,] . . . the

government’s burden is satisfied.” Shin v. Mukasey, 547 F.3d 1019, 1024 (9th Cir.

2008). In this case, however, counsel did not expressly concede Avina-Renteria’s

removability.

      Avina-Renteria’s counsel admitted the factual allegation of alien smuggling,

but only with a proviso that Avina-Renteria was eligible for a waiver because he

was related by blood and marriage to the children in the vehicle. Counsel never

expressly admitted to the factual allegation after the IJ determined that Avina-

Renteria’s relationship with the children was not close enough to qualify for a

waiver. Furthermore, although an IJ is required to ask the alien if he or she

“admits the factual allegations and admits his or her removability under the

charges,” 8 C.F.R. § 1240.10(c) (emphasis added), the IJ never asked Avina-


                                          3
Renteria or his counsel whether removability was conceded as charged.2 Mere

acquiescence, or failure to contest an IJ’s statement that admissions have been

made, does not meet the government’s burden of proving removability by clear and

convincing evidence. See Cortez-Acosta v. INS, 234 F.3d 476, 481-82 (9th Cir.

2000) (holding that a pro-se petitioner’s failure to express his disagreement with

the IJ’s statement that he had admitted to participating in alien smuggling at his

unrecorded master calendar hearing failed to meet the government’s burden). And

the record is clear that neither Avina-Renteria nor his counsel expressly conceded

removability.

      Moreover, the regulations stipulate that an IJ can determine removability on

the basis of the alien’s admissions only if the IJ “is satisfied that no issues of law or

fact remain.” 8 C.F.R. § 1240.10(c). It was clear, on this record, that issues of law

and fact remained. Petitioner’s counsel contested whether the government had

established the facts necessary to show that Avina-Renteria acted affirmatively




      2
        Although the dissent glosses over this requirement, the regulations
explicitly require that the alien admit to the factual allegations in addition to his
removability under the charges in order for the IJ to determine that removability
has been established by the alien’s admissions. 8 C.F.R. § 1240.10(c).

                                           4
under Altamirano v. Gonzales, 427 F.3d 586 (9th Cir. 2005).3 After the IJ

concluded that Avina-Renteria was removable as charged, his counsel raised the

following concerns:

      There is a minor issue here, Your Honor. There were several people in
      the vehicle which was stopped, of course, with the two persons
      involved. I don’t believe he was the driver and there may be an issue
      of whether he was aware of exactly what was going on in as much as
      it was the aunt of the two children and I believe other persons in that
      vehicle.

      Instead of resolving these outstanding factual and legal questions, the IJ

stated that Avina-Renteria could “raise those issues on appeal.” Because there was

no regulatory basis for the IJ’s determination of removability, counsel’s qualified




      3
        Although Altamirano was not decided until after Avina-Renteria’s hearing
before the IJ, Altamirano applies because “it establishes the proper interpretation of
the statute since the statute's inception.” Aguilar Gonzalez, 534 F.3d at 1208 n.2.

                                          5
admission to certain underlying factual allegations was insufficient to establish

removability.4

      Nor does any other evidence in the record meet the government’s burden of

establishing Avina-Renteria’s removability by clear, unequivocal, and convincing

evidence. The alien smuggling statute’s plain language requires an alien to

perform “an affirmative act of assistance or encouragement.” Altamirano, 427

F.3d at 588, 596 (holding that an alien’s “mere presence in the vehicle with

knowledge of the [smuggling] plan” does not constitute alien smuggling); Aguilar

Gonzalez, 534 F.3d at 1209 (holding that an alien did not commit alien smuggling

by reluctantly allowing her father to use her son’s birth certificate).

      The IJ found Avina-Renteria to be removable for alien smuggling because of

his knowledge that the children in the vehicle “didn’t have an[y] documents,” and

      4
         This result is entirely consistent with this court’s recent decision in Perez-
Mejia v. Holder, --- F.3d ----, 2011 WL 1496990 (Apr. 21, 2011). In Perez-Mejia,
the IJ complied with the applicable regulations in determining removability based
on the alien’s admissions: the alien’s counsel (1) expressly admitted to all of the
factual allegations, and (2) conceded the alien’s removability based on these
factual allegations. Id. at *2. Moreover, in Perez-Mejia, there was no indication
from the alien’s counsel that issues of law and fact remained, so it was appropriate
for the IJ to conclude that the alien’s removability had been established “by clear,
convincing, and unequivocal evidence.” Id. at *3. While an alien’s factual
admission to a prior conviction is “binding,” id. at *10, this does not mean that
counsel’s qualified admission to the factual allegation of alien smuggling is
binding, especially when counsel shortly thereafter contests the factual allegation
given the alien’s lack of affirmative participation in the alien smuggling.

                                           6
because his wife presented birth certificates for the children “which he knew were

not their birth certificates.” As in Altamirano, while Avina-Renteria may have had

reason to know that his wife was engaging in alien smuggling, the record does not

show that Avina-Renteria did anything affirmatively to assist or encourage her

acts. The IJ, therefore, committed legal error in determining that mere knowledge

of the smuggling satisfied the statute.

      The government argues that Avina-Renteria committed an affirmative act by

driving the vehicle to the border with knowledge that his wife planned to smuggle

in the children. Even assuming that driving a vehicle in these circumstances

qualifies as an affirmative act,5 the government did not meet its burden of

providing clear, unequivocal, and convincing evidence that Avina-Renteria was the



      5
        We do not reach a conclusion on whether merely driving a vehicle across
the border constitutes an affirmative act under 8 U.S.C. § 1182(a)(6)(E)(i). The
dissent’s citation to Altamirano is inapposite because the relevant affirmative act in
the Seventh Circuit case cited by the Altamirano panel was not driving across any
border; indeed the petitioner in the Seventh Circuit case did not even drive across
the border. Instead, the affirmative act was his pre-arrangement to drive aliens
from the American side of the border to San Antonio, Texas. The Seventh Circuit
concluded that “this arrangement could certainly be construed as having
‘encouraged’ or ‘induced’ the aliens to cross the border illegally.” Sanchez-
Marquez v. INS, 725 F.2d 61, 63 (7th Cir. 1984). The Altamirano panel did not
cite Sanchez-Marquez as holding that a driver performs an affirmative act, but
rather noted in a parenthetical that this case held that an alien who “pre-arranged to
drive and drove seven aliens from the Texas-Mexico border to San Antonio”
performed an affirmative act. 427 F.3d at 593.

                                          7
driver of the vehicle. Although the Form I-213 officer narrative indicates that

Avina-Renteria was driving,6 the I-213 does not state that Avina-Renteria admitted

to being the driver, and Avina-Renteria’s counsel indicated at the hearing before

the IJ that he did not believe that his client was the driver.

      The IJ did not make a finding as to whether Avina-Renteria was driving the

vehicle because the IJ erroneously believed that the smuggling statute was satisfied

by Avina-Renteria’s mere knowledge of his wife’s actions. Accordingly, the IJ

made no further inquires as to whether Avina-Renteria was the driver. We reject

the government’s argument that the contradictory evidence in the record satisfies

the government’s burden of establishing that he drove the vehicle.

       After the BIA affirmed the IJ’s decision without opinion, Avina-Renteria

filed a motion for reconsideration, arguing that the record did not establish his

removability. The BIA abused its discretion in denying this motion. The BIA

erroneously concluded that the record established that Avina-Renteria was

removable as charged: (1) Avina-Renteria did not expressly concede removability

under the applicable regulations; and (2) the government did not meet its burden of




      6
         Moreover, there are factual discrepancies in the documents submitted by
the government, which provide a reason to question the reliability of this statement
in the I-213.

                                            8
proving Avina-Renteria’s removability for alien smuggling by clear, unequivocal,

and convincing evidence.

      Accordingly, we remand to the BIA with instructions to remand to the IJ for

a factual hearing to determine Avina-Renteria’s removability.

      GRANTED; REMANDED.




                                        9
                                                                              FILED
Avina-Renteria v. Holder, 06-73998, 06-74631                                  MAY 23 2011

                                                                          MOLLY C. DWYER, CLERK
BEA, Circuit Judge, dissenting:                                             U.S. COURT OF APPEALS



      The majority holds that the IJ abused his discretion by ordering Avina-

Renteria removed where Avina-Renteria, through private counsel, conceded in

Immigration Court that he transported two undocumented minor aliens—who were

not his children—to the U.S.-Mexico border with intent to smuggle them into the

United States, in violation of INA § 212(a)(6)(E)(I). The majority is able reach

this conclusion only by focusing on a somewhat ambiguous, but in any event,

legally and factually baseless “proviso” which counsel attempted to attach to

Avina-Renteria’s concession. The majority then creates a heightened burden of

proof for removability, and relies on a readily distinguishable case to cast doubt on

the IJ’s holding. Alas, I must respectfully dissent.

      Avina-Renteria, who admitted to having been arrested twice previously for

alien smuggling, was detained at the Mexico-U.S. border on suspicion of

attempting to smuggle two undocumented minor aliens into the United States.

According to Avina-Renteria’s statement to border agents—transcribed on video,

and memorialized in the Department of Homeland Security Form I-213 which was

admitted into evidence without objection—Avina-Renteria, his wife, and a third

person (“Garcia”) traveled to Tijuana, Mexico to pick up construction supplies.

                                          1
They stopped at a tile store, and when Avina-Renteria exited the store, he saw his

wife in Avina-Renteria’s 2002 GMC truck with two young children.1 His wife told

him that she wanted to transport the children across the border into the United

States. Avina-Renteria admitted he knew then and there the children were

undocumented aliens.

      Nonetheless, Avina-Renteria drove his GMC truck—containing his wife,

Garcia, and the minor aliens—to the Mexico-U.S. border and attempted to enter

the United States. Despite the majority’s vague protestations to the contrary, the

fact he was the driver is uncontested: the I-213 Form, in evidence, states that

“Avina[-Renteria] was the driver of a Gray 2002 GMC Sierra pickup truck.” Also

undisputed is the fact that the truck belonged to Avina-Renteria2 and contained his

wife, Garcia, and the two undocumented children. At the border, a federal agent

determined that the birth certificates proffered by Avina-Renteria’s wife for the

minor aliens did not belong to the children. Avina-Renteria, his wife, Garcia, and

the children were detained on suspicion of alien smuggling.



      1
         Avina-Renteria now claims that the children are his niece and nephew by
marriage—the children of his wife’s sister. Neither child is a citizen or legal
resident of the United States.
      2
        The I-213 Form states that, upon exiting the tile store in Tijuana, Avina-
Renteria “suddenly saw two kids in his truck.”

                                          2
      At Avina-Renteria’s immigration hearing, Avina-Renteria, through counsel,

admitted the factual allegations charged in the Notice to Appear (“NTA”) and

conceded his removability for alien smuggling, as required by 8 C.F.R. §

1240.10(c). Avina-Renteria first admitted to Counts 1, 2, and 3 of the NTA.3

Later, the IJ asked Avina-Renteria’s counsel if his client admitted Count 4 of the

NTA. Count 4 charged Avina-Renteria as removable pursuant to INA §

212(a)(6)(E)(I), because he “knowingly encouraged, induced, assisted, abetted, or

aided Ingrid Guadalupe (age 5 yrs) and Elvin Antonio (age 3 yrs) (unknown last

name), both minor aliens, to enter or to try to enter the United States, in violation

of law.” The NTA also stated that Count 4 made Avina-Renteria “subject to

removal from the United States pursuant to the following provision(s) of law:

Section 212(a)(6)(E)(I).”

      IJ:           So do you now admit #4?
      Counsel:      Yes, with a proviso.
      IJ:           Okay.
      Counsel:      . . . It appears that my client is related by blood to the, actually
                    by marriage and by blood to the two minors that were brought
                    in, or attempted to brought in to the United States.

      3
         Count 1 of the NTA charged: “[You] are not a citizen or national of the
United States.” Count 2 charged: “[You] are a native of Mexico and a citizen of
Mexico.” Count 3 charged: “[You] on or about November 16, 2004 made
application for admission into the United States from Mexico, via the vehicle
primary lanes of the Otay Mesa Port of Entry, California, and presented an
Immigration form I-551 lawfully issued to you.”

                                           3
      IJ:         Okay.
      Counsel:    Under those circumstances if we can demonstrate that blood
                  relationship, there may be mitigating circumstances with
                  respect to the more serious charges of smuggling. . . .
      IJ:         But you don’t have any documents to verify it today?
      Counsel:    I, I don’t have them today . . . I have met with the aunt of the
                  two minors . . . That person is attempting to get the birth
                  certificates of the two minors and the relationships of those two
                  minors to the aunt by means of the mother of the two minors,
                  who is the sister of my client’s wife. So it’s very complicated
                  (indiscernible), and this is what we’re trying to do.
      IJ:         Well even if that’s true, I don’t think that’s close enough
                  relationship to mitigate.
      Gov’t Atty: Your Honor, the only waiver that’s authorized is for spouse,
                  son, or daughter.
      IJ:         Right. So at this point I think he’s removable with no relief.
                  Anything else?
      Counsel:    No, your Honor.4
      Gov’t Atty: No, your Honor.
      IJ:         All right, sir, I’m going to have to find that you are removable
                  from the United States because of this smuggling activity.

      In other words, Avina-Renteria conceded that he had violated the alien

smuggling statute—under which he is subject to removal—with the “proviso” that

he might be eligible for waiver of removal or “mitigation” based on his purported

relationship to the children “by marriage and by blood.”5 Note that his supposed


      4
         Note counsel did not ask for a continuance to procure documentation of
consanguinity after the government attorney and judge said it would be unavailing,
since the children were not petitioner’s children.
      5
       It is unclear what petitioner’s counsel intended when he told the IJ “there
may be mitigating circumstances with respect to the more serious charges of
smuggling.” To begin with, the INA identifies only one type of alien smuggling;

                                         4
proviso in no way undercuts his admission to the factual allegation of having

knowingly driven two named and age-identified, undocumented minors to the

U.S.-Mexico border with intent to bring them into the United States. Moreover,

not only did Avina-Renteria fail to adduce any evidence as to his actual

relationship to the children, but his asserted relationship with the minor aliens

(their uncle), even if true, does not qualify him for waiver of removal; waiver of

removal is limited to one’s spouse, child, or parent. See INA § 212(a)(6)(E)(ii).6

Nor did Avina-Renteria withdraw his admission to Count 4 when the IJ agreed

with government counsel—without objection from Avina-Renteria’s counsel—that

Avina-Renteria’s asserted relationship did not allow waiver of removal.

      Nonetheless, the majority holds that this factually inadequate and legally


there are not “less serious” and “more serious” classes of smuggling. Moreover,
the INA makes no allowance for “mitigating circumstances” in the context of alien
smuggling. The only relief available in that context is waiver of removal, which is
reserved solely for those who smuggle their own child, spouse, or parent. Thus, to
the extent we interpret counsel’s statement as a request for “mitigation,” his
request seeks an inexistent form of relief. Unless he had in mind “voluntary
departure,” rather than removal—but that relief presupposes the alien has already
been found removable. Of course, as the attorneys and the IJ agreed at the hearing,
to the extent we interpret his statement as a request for waiver of removal, his
request fails for inadequate familial relationship. See INA § 212(a)(6)(E)(ii).
      6
         Avina-Renteria’s argument is akin to a criminal defendant admitting theft
of U.S. currency, with the “proviso” that the United States may not be authorized
to emit any currency but gold and silver. Nice try. See Legal Tender Cases (Knox
v. Lee, 79 U.S. 457 (1871); Juilliard v. Greenman, 110 U.S. 421 (1884)).

                                          5
baseless “proviso” invalidates Avina-Renteria’s express concession of

removability. Frankly, the majority has no choice but to place the entire weight of

its desired outcome on this proviso; our circuit law clearly states, and the majority

agrees, that the government’s burden of proof in a removal proceeding is satisfied

where “petitioner’s counsel expressly concede[s] removability. . .” Shin v.

Mukasey, 547 F.3d 1019, 1024 (9th Cir. 2008). But the dispositive weight the

majority ascribes to the proviso is simply too great for the proviso to shoulder.

      Employing the majority’s logic, our cases would venture into the absurd.

Under the majority’s rule, an IJ could not find a petitioner removable based on the

statement: “Yes, I expressly concede that I’m removable, with the proviso that my

name is John, and of course there may be a provision in the INA which prohibits

deporting anyone named John from the country.” Or: “Yes, I’m removable, with

the proviso that today is Tuesday, and of course the INA may prohibit an IJ from

ordering petitioners removed on a Tuesday.” Merely attaching an irrelevant and

unsupportable proviso to an admission of removability does not affect the

enforceability of the concession—at least it didn’t until the majority adopted such a

rule here.7

      7
       If Avina-Renteria’s imagined “proviso” was a plea in confession and
avoidance, he at least confessed removability, subject to avoidance because of his
consanguinity to the minor “smugglees.” If his avoidance claim is meritless at law,

                                          6
      After dismissing Avina-Renteria’s express concession of removability, the

majority goes on to find—just as inexplicably—that the government did not

present “clear, unequivocal, and convincing evidence” of Avina-Renteria’s

removability. Maj. Op. at 5. Admittedly, this burden is high. But in light of the

evidence offered by the government and undisputed by the petitioner, the majority

must strive mightily to engineer the burden to be insurmountable. First of all, even

assuming arguendo that Avina-Renteria’s admission at his hearing to Count 4 of

the NTA was not an adequate concession of removability status, and thus not

conclusive as to his removability, petitioner’s admission to the underlying factual

allegations of the NTA is still admissible to help the government meet its burden of

“clear, unequivocal, and convincing evidence.” Thus, in finding that the

government met its burden, the IJ properly considered Avina-Renteria’s admission

of the words of the NTA’s Count 4: that he “knowingly encouraged, induced,

assisted, abetted, or aided Ingrid Guadalupe (age 5 yrs) and Elvin Antonio (age 3

yrs), both minor aliens, to enter or to try to enter the United States, in violation of



at least the confession is not. Mind, he did not condition his admission on the IJ’s
acceptance of claimed “mitigating circumstances.” Had he done that, the IJ could
have brushed aside his offer as baseless and proceeded to try the case. Imagine a
defendant in an auto accident case who is asked if he admits liability and answers:
“Yes, with the proviso there will be no damages assessed because I am truly sorry
the accident happened.”

                                           7
law.”

          Further, the petitioner’s admission to alien smuggling was corroborated by

the I-213 Form submitted into evidence (without objection) by the government. I-

213 forms are presumptively reliable evidence of removability, Tejada-Mata v.

INS, 626 F.2d 721, 724 (9th Cir. 1980), and Avina-Renteria does not suggest that

the admissions in the I-213 form were obtained by duress or coercion.8 The I-213

Form repeats Avina-Renteria’s account of the alien smuggling provided above at

pp. 1–2, and succinctly states that Avina-Renteria was the owner and driver of the

vehicle when it attempted to cross the border. Moreover, the I-213 states that

Avina-Renteria admitted to having been arrested twice before for alien smuggling.

          Finally, the IJ found that the minors were not in fact Avina-Renteria’s

children—a factual finding supported by substantial evidence. Thus, the IJ

properly held that Avina-Renteria was not eligible for § 212(a)(6)(E)(ii) waiver of

relief.

          In sum, it is unfathomable that this evidence does not meet this court’s

standard for “clear, unequivocal, and convincing evidence.” Avina-Renteria

admitted the factual allegations in the NTA which stated the elements of the


          8
              That the statements were on video undoubtedly advised against such a
claim.

                                             8
smuggling charge at his hearing before the IJ, in his video-taped statement on the

day of his detention, and in his statements to agents memorialized in the

unchallenged, presumptively-reliable I-213 Form. This evidence would be

sufficient even without Avina-Renteria’s two prior arrests for alien smuggling,

evidence admissible to show intent and absence of mistake under FRE 404(b). The

majority apparently adopts a rule that the government can meet its burden only if

the petitioner admits, in his hearing before the IJ, every fact necessary to find him

removable; no other evidence is sufficient to be “clear, unequivocal, and

convincing.” Maj. Op. at 5. For example, according to the majority, the border

agent’s statement in the presumptively-reliable I-213 Form that Avina-Renteria

drove his own truck to the border crossing cannot clearly and convincingly prove

that fact unless Avina-Renteria admits that fact in his hearing before the IJ. Were

that true, a petitioner who stood mute could never be found to have engaged in

alien smuggling. To state the proposition is sufficient to dispel it.

      Just as the majority relies on an invented, but legally baseless, proviso to

avoid an express concession of removability, the majority attempts to sidestep the

overwhelming evidence supporting removability by citing to a distinguishable case

decided after the IJ first found Avina-Renteria removable: Altamirano v. Gonzales,

427 F.3d 586 (9th Cir. 2005). The majority is correct that Altamirano held that a

                                           9
petitioner is removable for alien smuggling under INA § 212(a)(6)(E)(I) only if he

provides “affirmative assistance” to aliens in their attempt to enter the United

States. 427 F.3d at 591. But, where the majority bizarrely finds a “lack of

affirmative participation in the alien smuggling,” Maj. Op. at 7, n.4, I find that

Avina-Renteria provided affirmative, material assistance to the smuggling of the

minor aliens. Unlike the passive passenger—respondent/petitioner in

Altamirano—who merely knew there was an illegal alien hiding in the trunk,

Avina-Renteria drove the minor aliens to the border, in his truck, with knowledge

they were undocumented and with intent to smuggle them into the United States.

In fact, the panel in Altamirano explicitly recognized a distinction between a

passive passenger in a car containing an illegal alien and the driver of that car by

distinguishing its holding from a Seventh Circuit case involving a driver. See id. at

593 (citing Sanchez-Marquez v. INS, 725 F.2d 61, 63 (7th Cir. 1984) (upholding a

removal order for an alien who pre-arranged to drive and drove seven illegal aliens

from the U.S.-Mexico border to San Antonio)).9 As the driver and owner of the


      9
        The majority would create the absurd result that an individual who
arranges to drive aliens, already in this country, to San Antonio, Texas commits an
“affirmative act” in furtherance of alien smuggling, while someone who drives
from San Diego, California to Tijuana, Baja California, picks up two
undocumented minors, drives them to the U.S.-Mexico border, and attempts to
sneak them into the United States, commits no such “affirmative act.”

                                          10
vehicle, Avina-Renteria provided affirmative assistance to the undocumented

children, and thus, the majority’s reliance on Altamirano is misplaced.

      The majority relies on a talismanic claim of a proviso—which is factually

and legally baseless—to avoid acknowledging that Avina-Renteria conceded his

removability before the IJ. The majority then relies on a readily distinguishable

case to parry overwhelming evidence of removability. Because such legal

gymnastics find no support in law or common sense, I must respectfully dissent.




                                         11
