                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                    No. 10-2758
                                   _____________

                        LUSBET ALTAMIRANO-GARCIA;
                        ZOYVER ALTAMIRANO-GARCIA,
                                              Petitioners
                                    v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                                 Respondent
                      _____________________________

            On Petition for Review from the Board of Immigration Appeals
                      BIA Nos. A088-231-710 & A088-231-711
                  Immigration Judge: The Honorable Susan G. Roy
                          _____________________________

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   July 12, 2011

              Before: RENDELL, SMITH, and FISHER, Circuit Judges

                                (Filed: July 18, 2011)
                             _______________________

                                    OPINION
                             _______________________


SMITH, Circuit Judge.

      Lusbet Altamirano-Garcia and her younger brother, Zoyver Altamirano-Garcia,

allegedly entered this country illegally from Mexico in 1999 and 2004, respectively.

They each received a Notice to Appear in 2007, charging them with being removable



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under 8 U.S.C. § 1182(a)(6)(A)(i) because they were citizens of Mexico who had neither

been admitted nor paroled into the United States. After retaining counsel, Lusbet and

Zoyver filed a motion to suppress the evidence regarding their alienage and to terminate

the removal proceedings. The IJ concluded that Lusbet and Zoyver‟s immigration files

contained sufficient evidence of their alienage. As a result, she denied the motion to

suppress and found both Lusbet and Zoyver removable.

       A timely notice of appeal to the BIA followed. The BIA agreed with the IJ‟s

conclusion that Lusbet and Zoyver were “removable as charged without relying upon any

information . . . discovered during the August 2007 arrest.” Lusbet and Zoyver filed a

timely petition for review. We exercise jurisdiction pursuant to 8 U.S.C. § 1252(a).

       Lusbet and Zoyver contend that the IJ‟s decision cannot stand for several reasons,

including that the government failed to meet its burden of proving their alienage. We

agree. Section 212(a)(6)(A)(i) of the Immigration and Nationality Act provides that an

“alien present in the United States without being admitted or paroled . . . is inadmissible.”

8 U.S.C. § 1182(a)(6)(A)(i). “In the case of [an individual] charged as being in the

United States without being admitted or paroled, the Service must first establish the

alienage of [that individual].” 8 C.F.R. § 1240.8(c). Because the government bears the

burden of proving Lusbet and Zoyver‟s alienage, it must do so “by clear, unequivocal,

and convincing evidence that the facts alleged as grounds for deportation are true.”

Woodby v. Immigration & Naturalization Serv., 85 U.S. 276, 286 (1966). See also

Sandoval-Vera v. Immigration & Naturalization Serv., 677 F.2d 792, 793 (9th Cir. 1982)

(noting that the burden is on the government to show by “„clear, unequivocal, and


                                             2
convincing evidence‟” that the “subject of the [deportation] proceeding is an alien”). Yet

the evidence in Lusbet and Zoyver‟s immigration files consists of two statements. The

first statement was that Lusbet was from Mexico. The second indicated that their parents

were currently in Mexico. Without more, neither statement is sufficient to establish that

Lusbet and Zoyver are natives or citizens of Mexico. Accordingly, we will grant the

petition for review and will remand this matter for further proceedings.




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