                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MODESTA AGUILAR GONZALEZ,                   
                     Petitioner,                    No. 04-74576
              v.
                                                    Agency No.
                                                    A47-424-635
MICHAEL B. MUKASEY, Attorney
General,                                              OPINION
                    Respondent.
                                            
          On Petition for Review of an Order of the
               Board of Immigration Appeals

         Argued and Submitted February 14, 2008
       Withdrawn from Submission February 21, 2008
                Resubmitted July 29, 2008
                   Pasadena, California

                        Filed July 29, 2008

        Before: Betty B. Fletcher and N. Randy Smith,
     Circuit Judges, and Samuel P. King,* District Judge.

                  Opinion by Judge B. Fletcher:
                  Dissent by Judge N.R. Smith




  *The Honorable Samuel P. King, Senior District Judge, sitting by desig-
nation.

                                 9619
                     GONZALEZ v. MUKASEY                    9621


                          COUNSEL

Lenore A. Ceithaml, San Diego, California, for the petitioner.

Eric W. Marsteller, U.S. Department of Justice, Civil Divi-
sion, Washington, D.C., for the respondent.


                          OPINION

B. FLETCHER, Circuit Judge:

   Modesta Aguilar Gonzalez petitions for review of the
Board of Immigration Appeals’ (BIA) order affirming, in a
streamlined decision, the Immigration Judge’s (IJ) decision
denying her motion to terminate removal proceedings against
her and finding that she is inadmissible under INA § 212(a)(6)
(E)(i), 8 U.S.C. § 1182(a)(6)(E)(i), because she assisted in the
smuggling of two undocumented alien minors into the United
States. She was placed in removal proceedings after she
attempted to enter the United States in a vehicle that carried
two undocumented infants. Earlier that day, Modesta had left
California with her family, knowing that her father planned on
using her U.S.-citizen son’s birth certificate to pass one of the
two infants into the United States. The issue before us is
whether Modesta’s presence and acquiescence in her father’s
plan was sufficient to sustain a finding that she aided and
9622                     GONZALEZ v. MUKASEY
abetted an alien to try to enter the United States in violation
of law.1

   We have jurisdiction under 8 U.S.C. § 1252 to review a
final order of removal. We hold that Modesta’s mere presence
and acquiescence does not constitute alien smuggling under
INA § 212(a)(6)(E)(i). We therefore grant the petition for
review.

                           I.   Background

   Modesta Aguilar Gonzalez, a citizen of Mexico, entered the
United States as a legal permanent resident in 2000 when she
was 19 years old. Her father, Isauro Aguilar Campos, had
petitioned for Modesta, her mother, and her four younger
brothers to come to the United States. Modesta is a single
mother whose son was five months old on the date of the
events at issue here. The entire family lives in a house that
Modesta jointly owns with one of her brothers. Modesta does
not have a criminal record and has had steady employment
since at least October of 2001.

   On October 23, 2003, Isauro approached Modesta and told
her of his plan to bring two undocumented infant relatives
into the United States. He explained to her that he needed to
use her son’s birth certificate for one of the infants, and that
it would be easier to get through inspection if the child’s
“mother” was with them. Twice she refused to accompany
him or provide him with the birth certificate. When he asked
the third time, however, she “reluctantly said yes.” She did
not wish to disappoint him, and was particularly concerned
because her father helps pay the mortgage on her house. The
record does not establish whether Modesta gave her father the
  1
   Modesta also argues that the Department of Homeland Security (DHS)
violated her due process rights by acting in bad faith when they failed to
process her request for prosecutorial discretion. In light of our holding on
the INA § 212(a)(6)(E)(i) claim, we need not reach this issue.
                    GONZALEZ v. MUKASEY                   9623
birth certificate or whether he took it. She did accompany him
to Mexico, however, and her son’s birth certificate was pre-
sented to DHS inspectors on the attempted reentry into the
United States with the infants.

   Isauro borrowed a Chevy Suburban from a relative and
drove to Mexico to pick up the two undocumented infants and
one of Isauro’s U.S.-citizen grandchildren. When they
attempted to reenter the United States, Isauro was driving
with his wife in the front passenger seat. Several other rela-
tives were in the second row, and Modesta was in the third
row, with the undocumented infants on either side of her. As
will be discussed below, there is some dispute over exactly
what happened at primary inspection, but someone presented
the birth certificates to the primary inspection officer who
suspected that the infants were not the rightful owners. As a
result, Isauro and Modesta were referred to secondary inspec-
tion where they admitted that the infants were not U.S. citi-
zens. The infants were sent to the Mexican consulate and the
other occupants of the vehicle were fingerprinted and released
into the United States.

   Isauro and Modesta were both charged with alien smug-
gling and placed in removal proceedings. Isauro was eventu-
ally granted cancellation of removal. Modesta, however, was
ineligible for relief from removal because she had resided
lawfully in the United States for only three years.

   At her master calendar hearing, Modesta denied that she
was an arriving alien and that she knowingly assisted in the
attempt to smuggle two undocumented infants into the United
States. She contested removability asserting that she did not
actively engage in the attempt. She further informed the
immigration court of her intent to seek relief through termina-
tion of proceedings.

  The government countered that Modesta actively partici-
pated in the attempt by presenting the two borrowed United
9624                 GONZALEZ v. MUKASEY
States birth certificates to the primary inspecting officer. The
government based this assertion on the contents of Form G-
166 (Report of Investigation) and Form I-213 (Record of
Deportable/Inadmissible Alien).

   In her motion to terminate, Modesta explained that her par-
ticipation in the scheme was unwilling, and that she accompa-
nied her father only because she was afraid that he would stop
helping her pay the mortgage on her house if she did not go.
She also claimed that Isauro was the one that presented the
birth certificates to the inspecting officers. In support of this
argument, she pointed to contradictory language in the gov-
ernment’s evidence. Specifically, while Form I-213 stated that
she “presented two U.S. birth certificates on behalf of the
children,” Form G-166 said that “the driver, AGUILAR-
Campos Isuaro presented two State of California Birth Certifi-
cates on behalf of the minors.” In its motion in opposition, the
government did not address these contradictions, but instead
insisted that Form I-213 contained sufficient information to
find Modesta removable as charged.

   At her merits hearing, Modesta, through counsel, submitted
an affidavit from Isauro declaring, “It was my idea and mine
alone to cross [the] two children, [Modesta] didn’t want to go
but I insisted and she obeyed me because I am her father.”
She also filed her father’s Form I-213, which stated that he
was the one who presented the two U.S. birth certificates to
the inspecting officer. Additionally, she made an offer of
proof that, if called to testify, she would declare that

    her father approached her and asked her twice if he
    could use her son’s birth certificate to bring to the
    United States a child named Luis. Both times she
    responded, “No.” He asked her again to provide him
    with her son’s birth certificate and to accompany
    him to Mexico. This third time she reluctantly said
    yes so as not to disappoint him. She did so without
    realizing the consequences of her actions. She knew
                     GONZALEZ v. MUKASEY                      9625
    that her son’s birth certificate would be used to bring
    an undocumented infant across the border. She went
    with her father and other family members to Mexico
    to bring across not only Luis but another undocu-
    mented minor.

   On April 14, 2004, the IJ issued a written decision denying
Modesta’s motion to terminate and finding her removable.
His decision was based solely on her offer of proof. Impor-
tantly, he did not consider Forms G-166 or I-213 in reaching
his conclusion. The IJ explained that

    Information as to who provides documents to an
    inspecting officer is crucial information. Here, it is
    unclear as to who provided the birth certificates to
    the inspecting officer. When information on authen-
    ticated immigration forms have incorrect or contra-
    dictory information, the Court cannot rely on them.
    Because the respondent has provided evidence to
    rebut the presumption of reliability on said docu-
    ments, the Court will not rely on them to determine
    whether she is removable as charged.

The IJ nevertheless concluded that Modesta had assisted in
alien smuggling by “lending countenance” to the scheme by
lending her son’s birth certificate to her father with knowl-
edge that it would be used to bring an undocumented infant
into the United States. According to the IJ, Modesta’s “pres-
ence in the vehicle and acquiesce [sic] in supplying the docu-
ment to her father for such purpose, is sufficient evidence to
sustain the charge of removability against [her].”

   Modesta appealed to the BIA, which affirmed in a stream-
lined decision. See 8 C.F.R. § 1003.1(e)(4). In her petition for
review, she argues that the government did not carry its bur-
den of proving that she aided and assisted in alien smuggling
because the government did not establish that she engaged in
any active conduct pursuant to the scheme. Specifically, she
9626                    GONZALEZ v. MUKASEY
denies giving the birth certificate to her father, instead insist-
ing that “he knew where she kept it and he took it.”

                  II.     Standard of Review

   The proper standard of review in immigration proceedings
depends on the nature of the decision being reviewed. See
Manzo-Fontes v. INS, 53 F.3d 280, 282 (9th Cir. 1995). Legal
questions concerning the meaning of the immigration laws are
reviewed de novo. Lagandaon v. Ashcroft, 383 F.3d 983, 987
(9th Cir. 2004). The IJ’s factual findings, on the other hand,
are reviewed for substantial evidence. Chavez-Ramirez v. INS,
792 F.2d 932, 934-35 (9th Cir. 1986). Thus the first thing this
court must do is identify whether it is being asked to review
a factual finding or a question of law.

   The only factual findings in this case are that Modesta was
present in the vehicle and that she had lent her son’s birth cer-
tificate to her father. The former is not contested. As to the
latter, it is unclear what the IJ meant by “lend.” The IJ did not
say Modesta physically handed the birth certificate to her
father, and she insists that she did not. Critically, her offer of
proof cannot be read as an admission that she handed the birth
certificate to her father; all she says is that on the third time
he asked her for it “she reluctantly said yes.” We therefore
conclude that if the IJ meant that Modesta physically handed
the birth certificate to her father, that finding was not based
on substantial evidence. See Ahmed v. Keisler, 504 F.3d 1183,
1198 (9th Cir. 2007) (noting that where there is no evidence
to support a finding, “it is conjecture and cannot be substi-
tuted for substantial evidence” (internal quotation and citation
omitted)). The question presented is therefore whether Mod-
esta assisted in alien smuggling by reluctantly acquiescing in
her father’s use of her son’s birth certificate. We review this
purely legal question regarding the meaning of INA
§ 212(a)(6)(E)(i) de novo. Lagandaon, 383 F.3d at 987.
                         GONZALEZ v. MUKASEY                          9627
                           III.   Discussion

   [1] In Altamirano v. Gonzales, 427 F.3d 586 (9th Cir.
2005), we considered whether mere presence in a vehicle with
knowledge that undocumented aliens were hiding in the trunk
constitutes alien smuggling under INA § 212(a)(6)(E)(i).2 We
held that it does not because the “plain meaning of this statu-
tory provision requires an affirmative act of help, assistance,
or encouragement.” Altamirano, 427 F.3d at 592 (emphasis
added). In support of this conclusion, we also considered the
“well-established meaning of aiding and abetting” in the crim-
inal context, which requires the individual to “associate him-
self with the venture, that he participate in it as in something
that he wishes to bring about, that he seek by his action to
make it succeed.” Id. at 594 (quoting Nye & Nissen v. United
States, 336 U.S. 613, 619 (1949)).

   Relying on the statutory language and the criminal cases
interpreting aiding and abetting, we concluded that Altami-
rano did not engage in alien smuggling. Her presence in the
vehicle with knowledge that the other occupants planned to
commit alien smuggling did not constitute an affirmative act,
even though she carried out the “act” of entering the car
knowing that an undocumented alien was hiding in the back.
See id. at 596. We therefore granted the petition for review
and remanded to the IJ with instructions to grant Altamirano’s
motion to terminate removal proceedings against her. Id.

   [2] Just as we could not conclude in Altamirano that riding
in a car carrying an undocumented alien was an affirmative
act, we cannot conclude that Modesta engaged in an affirma-
tive act by reluctantly saying “yes” to her father’s repeated
requests to use her son’s birth certificate. It bears repeating
  2
    Although Altamirano was decided after the IJ rendered his decision,
the holding is applicable here because it establishes the proper interpreta-
tion of the statute since the statute’s inception. See United States v. City
of Tacoma, 332 F.3d 574, 581 (9th Cir. 2003).
9628                 GONZALEZ v. MUKASEY
that neither Modesta’s proffer nor anything else in the record
establishes that she gave her father the birth certificate. She
merely acquiesced in her father’s decision to use it. Acquies-
cence is not an affirmative act, however, and as such, Mod-
esta did not assist in alien smuggling.

                      IV.   Conclusion

   [3] The IJ committed legal error by interpreting INA
§ 212(a)(6)(E)(i) to reach cases such as this involving mere
presence and acquiescence. We therefore grant the petition for
review and remand to the IJ with instructions to grant Mod-
esta’s motion to terminate removal proceedings against her.

  PETITION GRANTED.



N.R. SMITH, dissenting:

   There is no doubt that the facts underlying this case are
unfortunate. It is not even a stretch to call them unfair. Mod-
esta’s father, the mastermind and driving force behind the
alien smuggling for which Modesta was charged, was ulti-
mately granted cancellation of removal and allowed to stay in
the United States. Modesta, who reluctantly participated in the
smuggling at the insistence of her father, was ineligible for
such relief and found removable. However, we are not free to
stretch the law to avoid results that we do not like. In my
view, the majority has done so here and I respectfully dissent.

   In one respect, the facts of this case nearly mirror those of
Altamirano v. Gonzales, 427 F.3d 586 (9th Cir. 2005). There,
we held that a petitioner’s mere presence in a vehicle with
knowledge of a plan to smuggle an undocumented alien
across the border in the trunk of the vehicle did not constitute
alien smuggling under INA § 212(a)(6)(E)(i). Id. at 595-96.
We held that INA § 212(a)(6)(E)(i) is not violated absent “an
                     GONZALEZ v. MUKASEY                    9629
affirmative act of assistance or encouragement.” Id. at 596.
Like the petitioner in Altamirano, Modesta was present in a
vehicle and had knowledge of her father’s plan to smuggle
two undocumented infants across the border. Modesta even
sat between the infants. This alone, however, was undoubt-
edly insufficient to constitute alien smuggling. Id.

  However, this case presents facts that Altamirano did not.
In addition to her presence in the vehicle, Modesta allowed
her father to use her son’s birth certificate to smuggle the
undocumented infants. The majority characterizes this agree-
ment as a “reluctant acquiescence” and ultimately holds that
acquiescence is not an affirmative act, as required for alien
smuggling under Altamirano. I disagree.

   I do not necessarily disagree with the majority that acquies-
cence is not an affirmative act. Legally, acquiescence is
defined as “[a] person’s tacit or passive acceptance” or a per-
son’s “implied consent to an act.” Black’s Law Dictionary
(8th ed. 2004). This definition fits squarely with Altamirano’s
holding that mere presence in a vehicle is not an affirmative
act even if the petitioner has knowledge of the smuggling.
This makes sense. Mere presence in a vehicle with knowledge
of alien smuggling is “tacit or passive acceptance” or “im-
plied consent” to the smuggling, but nothing more.

   I part ways with the majority, however, at the point at
which they characterize Modesta’s actions as “reluctant
acquiescence.” Under this definition, Modesta did not “mere-
ly” acquiesce to her father’s use of her son’s birth certificate.
If, for example, Modesta had seen her father take her son’s
birth certificate and said nothing, we could properly charac-
terize her actions as acquiescence because her consent would
have been passive or implied. However, that is not what
occurred. Modesta actively assisted her father by explicitly
agreeing that he could use her son’s birth certificate. Indeed,
her father’s repeated requests demonstrate that, for whatever
reason, he felt that he could not simply take the birth certifi-
9630                GONZALEZ v. MUKASEY
cate and leave Modesta out of his plan altogether. Rather, he
needed Modesta’s explicit permission before he could use the
birth certificate for purposes of alien smuggling. Thus,
although the majority’s opinion does not explicitly say so, by
holding that Modesta did not commit an affirmative act as
required by Altamirano, the majority implies that an oral
statement alone can never be an affirmative act. I disagree.

   Our analysis in Altamirano focused heavily on the meaning
of aiding and abetting because INA § 212(a)(6)(E)(i) “im-
port[ed] this concept from criminal law and because the alien
smuggling provisions of the INA have been generally ana-
lyzed as aiding and abetting statutes.” See 427 F.3d at 594.
We noted that “[t]he prosecution must prove that the defen-
dant was a participant, and not merely a knowing spectator”
and that a person “cannot be convicted of aiding and abetting
absent an affirmative act of assistance in the commission of
the crime.” Id. at 594-95 (internal quotation marks and cita-
tions omitted). We did not, however, hold that an oral state-
ment could never constitute an affirmative act of assistance.

   Boiled down, aiding and abetting merely requires that the
defendant “engaged in some affirmative conduct designed to
aid in the success” of the commission of a crime with “knowl-
edge that his actions would assist the perpetrator.” United
States v. Smith, 832 F.2d 1167, 1171-72 (9th Cir. 1987) (quot-
ing United States v. Cowart, 595 F.2d 1023, 1031 (5th Cir.
1979)). The majority’s holding that this affirmative conduct
can never take the form of an oral statement will open a pan-
dora’s box of absurd results. For example, a defendant who
says “yes, you can use my house to produce methamphet-
amine, but I will not open the door for you or participate”
would not be guilty of aiding and abetting the manufacture of
drugs. Likewise, the defendant who says “yes, you can bor-
row my shotgun and car so that you can rob a bank” would
not be guilty of aiding and abetting as long as he also says
“the gun is in the closet and the keys are on the counter —
get them yourself.”
                     GONZALEZ v. MUKASEY                    9631
   Here, Modesta engaged in affirmative conduct (allowing
her father to use her son’s birth certificate) designed to assist
her father in smuggling undocumented infants into the United
States. She did so with the knowledge that her conduct would
assist her father. Thus, in my view, Modesta’s agreement that
her father could use her son’s birth certificate was “an affir-
mative act of assistance” sufficient to constitute alien smug-
gling under INA § 212(a)(6)(E)(i) and Altamirano. The fact
that she was “reluctant” to do so and agreed only to avoid dis-
appointing her father does not change this result. I maintain
the view that, although it is sometimes difficult, we are not
free to adjust the tune of the law any time it does not harmo-
nize with that of our heartstrings.

   Because the majority decides as a matter of law that Mod-
esta’s actions did not constitute alien smuggling, it does not
reach the question of whether the Immigration Judge’s (IJ)
factual findings were supported by substantial evidence. See
Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001) (stat-
ing standard of review). Because the administrative record
contains an offer of proof in which Modesta admits that she
agreed to allow her father to use her son’s birth certificate
knowing that it would be used for alien smuggling, “any rea-
sonable adjudicator” would not be “compelled to conclude to
the contrary” of the IJ’s findings. 8 U.S.C. § 1252(b)(4)(B).
Thus, I would deny Modesta’s petition for review.
