                                                                              FILED
                            NOT FOR PUBLICATION                                JUL 30 2014

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



                            FOR THE NINTH CIRCUIT


XIOMARA ESTHER RODRIGUEZ-DE                      No. 09-73171
ESPINOZA, AKA Xiomara Esther
Rodriguez-Espinoza,                              Agency No. A041-319-055

              Petitioner,
                                                 MEMORANDUM*
  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 6, 2014
                               Pasadena, California

Before: SCHROEDER and CLIFTON, Circuit Judges, and COGAN, District
Judge.**

       Xiomara Esther Rodriguez-De Espinoza petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision ordering the Petitioner’s removal. In an


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.
earlier remand, the BIA had asked the Immigration Judge (“IJ”) to consider

whether Petitioner’s testimony was sufficient to show inadmissability under I.N.A.

§ 212(a)(6)(E)(i). The IJ’s decision on remand found that the testimony was

insufficient to establish the elements of a smuggling defense. The IJ stated that she

“could not be satisfied that respondent, in fact, made admissions regarding each of

the elements . . . .”

       When the government appealed to the BIA, however, the BIA stated that the

Petitioner had admitted the elements of alien smuggling. The BIA ignored both the

IJ’s finding that the Petitioner had not made sufficient admissions and Petitioner’s

argument that the testimony was vague and insufficient.

       The BIA is required to review findings of fact for clear error. 8 C.F.R.

§ 1003.1(d)(3)(i). Whether it has failed to do so is a question of law we have

jurisdiction to review. Perez-Palafox v. Holder, 744 F.3d 1138, 1143 (9th Cir.

2014). The BIA did not review the finding in this case for clear error. When the

BIA does not review the IJ’s findings for clear error, we must consider those

findings. Vitug v. Holder, 723 F.3d 1056, 1065 (9th Cir. 2013) (considering the

factual findings of the IJ since the BIA did not reject them as clearly erroneous).

On the basis of those findings, Vitug concluded that no reasonable factfinder could

have found the petitioner ineligible for relief. In this case, as the BIA recognized,


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Petitioner’s testimony was the only evidence regarding the 1998 alleged smuggling

episode. The testimony was halting and hard to follow. The IJ found the

testimony was not an admission of a crime, and we must take that finding into

account. In the absence of any determination by the BIA, reasoned or otherwise,

that the finding was clear error, there is no basis in this record to uphold the BIA’s

finding of ineligibility for adjustment of status. Petitioner is accordingly eligible

for adjustment of status.

      We agree with the government that the IJ should not have relied on the

rationale of the BIA’s decision in Matter of K, 7 I. & N. Dec. 594 (BIA 1957). Our

court has held that the protections recognized in that decision are not applicable to

testimony given under oath in court while represented by counsel. See Urzua

Covarrubias v. Gonzales, 487 F.3d 742, 749 (9th Cir. 2007). That reliance,

however, did not affect the IJ’s finding that the admissions were factually

insufficient.

      The petition for review is therefore GRANTED.




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                                                                                  FILED
No. 09-73171, Rodriguez-DeEspinoza v Holder                                         JUL 30 2014

                                                                               MOLLY C. DWYER, CLERK
CLIFTON, Circuit Judge, concurring in part and dissenting in part,              U.S. COURT OF APPEALS



      I agree that the petition for review should be granted because the BIA failed

to review the IJ’s findings of fact for clear error, as it is required to do. I disagree,

however, with our declaration that petitioner is accordingly eligible for adjustment

of status. That is a decision that is supposed to be left to the BIA, not made by us.

See INS v. Ventura, 537 U.S. 12, 16-18 (2002). The case should be remanded for

the BIA to review the IJ’s findings of fact applying the proper standard.

      The authority cited by the majority to justify its result does not fit this

situation. Indeed, in that case, Vitug v. Holder, 723 F.3d 1056 (9th Cir. 2013), we

expressly recognized that when the BIA fails to apply the clear error standard of

review to an IJ’s factual findings, “we typically remand so that the BIA may apply

the correct standard of review and properly consider the IJ’s factual findings.” Id.

at 1064. We did not do so in that case because we concluded that no reasonable

factfinder could reach a contrary result. Id. at 1065.

      The majority does not contend that is true here, and it is not. Based on the

testimony given by Rodriguez-DeEspinoza at the hearing, a reasonable factfinder

could conclude that she did, in fact, admit to alien smuggling.

      The explanation offered by the IJ for her finding was that “in many of

[Rodriguez-DeEspinoza’s] responses to questions either by the Court or by
Government counsel, [Rodriguez-DeEspinoza] did not elaborate on her conduct,

but made various one- or two-word responses acknowledging the questions that

she was asked.”

      But short, evasive responses rarely demonstrate innocence. There was no

indication that Rodriguez-DeEspinoza did not understand the questions. It

appeared that she was trying simply to fend them off. And not all of her responses

were quite so short. At one point she declared: “I was doing a favor with my

children’s birth certificate.” The IJ then followed up by asking her: “Do you think

if you’re just trying to help somebody with your children’s birth certificate that it’s

not an alien smuggling? That it’s not alien smuggling if you’re not paid? What are

you saying?” Rodriguez-DeEspinoza: “I was doing a favor.” Judge: “So if it’s a

favor it’s not alien smuggling?” Rodriguez-DeEspinoza: “Yes, yes, I know.”

      The IJ may have found, following the testimony, that Rodriguez-

DeEspinoza’s admissions were insufficient to establish her participation in alien

smuggling, but it is incorrect to conclude that no reasonable factfinder could find

to the contrary. Nor, in my view, would it be impossible for the BIA to decide that

the IJ’s finding was clearly erroneous, especially given, as the BIA’s decision

expressly noted, Rodriguez-DeEspinoza bore the burden of proof to establish her

eligibility for relief. The matter should be remanded to permit the BIA to apply the


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proper standard, as Ventura and Vitug tell us to do.




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