           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 14, 2009

                                     No. 09-60130                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



RICARDO ORTIZ-VILLAGOMEZ,

                                                   Petitioner
v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                   Respondent




                          Petition for Review of an Order of
                          the Board of Immigration Appeals
                                   No. A99 619 356


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Ricardo Ortiz-Villagomez, a native and citizen of Mexico, petitions for a
review of the decision of the Board of Immigration Appeals’s (BIA) affirming his
removal from the United States. Villagomez argues that his due process rights
were violated because the Immigration Judge (IJ) excluded witness testimony
that would show that his removal would lead to extreme hardship for his family.
For the following reasons, the petition for review is denied.


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                 No. 09-60130

           I. FACTUAL AND PROCEDURAL BACKGROUND
      Villagomez, who was born in Mexico, came to the United States without
inspection or parole in 1990. He now lives with his wife, three children, and his
parents. His parents are lawful permanent residents and two of his children are
United States citizens.
      In 2005, Villagomez returned to Mexico with his family for fifteen days
because of a family emergency. Villagomez brought a substantial sum of cash
in preparation for difficulties crossing the border.     On their return trip,
Villagomez bought two forged green cards at the border for himself and his wife
and also paid to have his son smuggled back into the United States. During the
border crossing, immigration officials detained Villagomez and his wife and
questioned them about the validity of their green cards. After a four hour
detention, during which Villagomez and his wife claimed that they were the
people identified on the green cards, the immigration officials released them.
      Villagomez was arrested in 2007 and charged with removal. After this
arrest, Villagomez admitted the allegations in the removal charge but claimed
he was eligible for a cancellation of removal. The IJ declined to hear from
Villagomez’s witnesses regarding hardship because he determined, based on
what happened in 2005, that Villagomez did not have the “good moral character”
required for a cancellation of removal. The BIA affirmed the IJ’s decision.
Villagomez now petitions for a review of the BIA’s decision.
                              II. DISCUSSION
      We review due process claims de novo. De Zavala v. Ashcroft, 385 F.3d
879, 883 (5th Cir. 2004). However, to prevail on a due process challenge, a
petitioner must “make an initial showing of substantial prejudice.” Id. We
“must affirm the decision [of the BIA or IJ] if there is no error of law and if
reasonable, substantial, and probative evidence on the record, considered as a
whole, supports the decision's factual findings.” Moin v. Ashcroft, 335 F.3d 415,

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418 (5th Cir. 2003); accord Howard v. INS, 930 F.2d 432, 434 (5th Cir. 1991).
      Villagomez applied for a cancellation of removal. The INA provides that
the Attorney General may cancel the removal of an alien charged with removal
if the alien:
          (A) has been physically present in the United States for a
          continuous period of not less than 10 years immediately preceding
          the date of such application;
          (B) has been a person of good moral character during such period;
          (C) has not been convicted of an offense under section 1182(a)(2),
          1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and
          (D) establishes that removal would result in exceptional and
          extremely unusual hardship to the alien's spouse, parent, or child,
          who is a citizen of the United States or an alien lawfully admitted
          for permanent residence.
INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1).
      At issue here is whether Villagomez has exhibited good moral character
during his presence in the United States. The INA provides that no person shall
be found to possess good moral character if the alien is a “member of one or more
of the classes of persons” described in § 212(6)(E). INA § 101(f)(3), 8 U.S.C.
§ 1101(f)(3). Section 212(6)(E) provides, in relevant part, that “[a]ny alien who
at any time knowingly has encouraged . . . , or aided any other alien to enter or
to try to enter the United States in violation of law is inadmissible.”              INA
§ 212(6)(E), 8 U.S.C. § 1182(6)(E)(I).1
      The IJ determined that Villagomez’s testimony surrounding his trip in
2005 demonstrated his lack of good moral character because he knowingly aided
others’ illegal entry into the United States. Villagomez argues that because the



      1
         In the proceedings below, Villagomez contended that he qualified for the family
reunification and other exceptions to the “smugglers” provision. However, he does not make
this argument on appeal, and, as such, we consider the issue waived. Zhu v. Gonzales, 493
F.3d 588, 593 n. 10 (5th Cir. 2007); Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.1994).

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Government never pursued the underlying smuggling charge that the IJ’s
decision regarding moral character was erroneous.            This contention is
unpersuasive. The INA prohibits a finding of good moral character for any alien
who knowingly aided others’ illegal entry into the United States, and it does not
require that the Government prosecute the underlying smuggling charge before
seeking to remove a petitioner. INA § 212(6)(E), 8 U.S.C. § 1182(6)(E)(I). See
also Chambers v. Office of Chief Counsel, 494 F.3d 274 (2d Cir. 2007) (upholding
lack of good moral character determination based largely on petitioner’s own
statements at an IJ removal hearing). As such, the only question is whether the
evidence presented at Villagomez’s hearing established that he knowingly aided
another person’s illegal entry into the United States.
      Here, the administrative record supports the IJ’s determination that
Villagomez did knowingly aid others in illegally entering the United States.
Villagomez, by his own admission, brought a significant amount of cash to pay
for a border crossing, purchased forged green cards for himself and his wife, paid
a person to smuggle his son over the border, and claimed that he and his wife
were the persons identified on the green cards. Further, Villagomez’s official
record from his 2007 arrest indicates that a record check revealed that
Villagomez was arrested for aiding and abetting in 2005 and granted a voluntary
departure. As such, the administrative record supports the IJ’s determination
that Villagomez “knowingly” aided another person’s illegal entry into the United
States, and, accordingly, Villagomez cannot show the requisite good moral
character to cancel his removal under the statute.
      While Villagomez now argues that the IJ’s exclusion of his witnesses’
testimony violated his due process rights, he does not demonstrate that the
exclusion of such testimony substantially prejudiced the outcome of his hearing.
Villagomez does not contend that his witnesses’ testimony would have
demonstrated that he did not knowingly aid others’ illegal entry. Instead,

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Villagomez only contends that his witnesses would have demonstrated the
“extreme hardship” of his removal. However, even if Villagomez’s witnesses
were able to demonstrate extreme hardship, that would not aid his application
for cancellation of removal.     Here, without evidence contradicting the
determination that he knowingly aided another’s illegal border crossing,
Villagomez cannot show he has good moral character, and thus he cannot
sustain his application for cancellation of removal.      As such, excluding
Villagomez’s witnesses’ testimony regarding extreme hardship did not
substantially prejudice the outcome of Villagomez’s hearing because a showing
of extreme hardship is irrelevant if the alien lacks good moral character.
Accordingly, excluding the witnesses’ testimony did not substantially prejudice
the result of Villagomez’s hearing, and he cannot show that his due process
rights were violated. See De Zavala, 385 F.3d at 883.
      For the foregoing reasons, the petition for review is DENIED.




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