                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           MAR 01 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ARON ACOSTA-MUNGUIA, AKA Aron                    No. 13-71440
Acosta Muniguia,
                                                 Agency No. A089-511-388
              Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                       Argued and Submitted January 8, 2016
                            San Francisco, California

Before: WALLACE, NOONAN, and BERZON, Circuit Judges.

      Aron Acosta-Munguia, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (Board) order dismissing his appeal from an

immigration judge’s (IJ) decision finding him removable as charged and thus

ineligible for adjustment of status under 8 U.S.C. § 1255(a). We have jurisdiction



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
under 8 U.S.C. § 1252. We review the Board’s factual findings for substantial

evidence, Sang Yoon Kim v. Holder, 603 F.3d 1100, 1102–03 (9th Cir. 2010), and

deny the petition for review.

      Acosta-Munguia contends that the finding that he knowingly assisted or

aided another alien was not supported by substantial evidence. Acosta-Munguia

also argues that his due process rights were violated when the Board and IJ

permitted the government to draw an adverse inference from his silence as to the

smuggling charge, and when he was not permitted to cross-examine witnesses

against him.

      Substantial evidence supported the Board’s conclusion that Acosta-Munguia

is removable pursuant to 8 U.S.C. section 1227(a)(1)(E)(i) and thus is not eligible

to adjust his status. In immigration proceedings, an adverse inference drawn from

silence is permissible where the petitioner is no longer subject to criminal

prosecution, Matter of Guevara, 20 I. & N. Dec. 238, 240 (BIA 1990), and there is

substantive evidence in the record to prove the facts in dispute and support the

government’s prima facie case. See Urooj v. Holder, 734 F.3d 1075, 1078 (9th Cir.

2013). As found by the Board, the substantive evidence presented by the

government was sufficient to allow an adverse inference to be drawn from Acosta-

Munguia’s silence at his hearing as to the smuggling charge.


                                          2                                    13-71440
      The government had the burden to demonstrate by clear, unequivocal, and

convincing evidence that Acosta-Munguia knowingly assisted other aliens in

entering the United States. Woodby v. INS, 385 U.S. 276, 286 (1966). To this end,

the government introduced Form I-213, without objection from Acosta-Munguia,

and presented testimony from the border officer who prepared the form in 1999.

Form I-213 included notes from the officer stating that Acosta-Munguia identified

the passengers as his friends, his border crossing card and vehicle were

confiscated, and that Acosta-Munguia waived his right to a hearing before an

immigration judge to dispute the charges.1 The content of the form was explained

to Acosta-Munguia in his native language before he signed it. Upon refreshing his

memory before the IJ, the border officer testified that during secondary inspection,

Acosta-Munguia informed him that the individuals in the back seat were his

friends, and referred to them by their false names as stated in their border crossing

cards. The officer also testified that when a border crossing card or vehicle is

seized after secondary inspection, it is because a supervisor identified “sufficient



      1
       Form I-213 also contains a summary of statements made by the backseat
passengers, later identified as imposters, stating that Acosta-Munguia was aware
they were attempting to enter the United States illegally. The IJ identified these
statements as inadmissible where Acosta-Munguia could not cross-examine the
passengers, and explicitly excluded the statements from consideration in his
analysis.

                                           3                                       13-71440
facts” that an individual had knowledge of an attempt of illegal entry into the

United States with the vehicle. Acosta-Munguia provided no evidence to challenge

the Form I-213's authenticity.

      We may only reverse the Board’s determination when a petitioner shows

evidence that is “so compelling that no reasonable fact-finder could fail to find the

facts were as [petitioner] alleged.” Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th

Cir. 2004). We are not compelled to reverse the Board’s decision affirming the IJ

and holding that the government demonstrated Acosta-Munguia’s removability.

The Board and IJ properly drew an adverse inference from Acosta-Munguia’s

silence where the government introduced additional, substantive evidence in the

form of the border officer’s testimony and Form I-213, excluding statements made

by the backseat passengers, to support a prima facie case of alien smuggling.

      PETITION DENIED.




                                          4                                       13-71440
                                                                          FILED
Acosta-Munguia v Lynch 13-71440
                                                                             MAR 01 2016
BERZON, J., dissenting,                                                MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS


      The majority correctly recognizes that in immigration proceedings, an

Immigration Judge may properly draw an adverse inference from a petitioner’s

invocation of his Fifth Amendment right against self-incrimination. Gutierrez v.

Holder, 662 F.3d 1083, 1091 (9th Cir. 2011). The Board of Immigration Appeals

(“BIA”) has, however, held that silence alone cannot adequately support a finding

of removability. Matter of Guevara, 20 I. & N. Dec. 238, 242 (B.I.A. 1990).

      In this case, the IJ excluded as hearsay statements documented on Form I-

213 made by two of Acosta-Munguia’s passengers who were unavailable for cross-

examination. See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674 (9th Cir.

2005). These statements consisted of admissions that the passengers were

“imposters” and that Acosta-Munguia knew this to be the case. The majority

nonetheless relies on other factual information supplied by the same form,

including that Acosta-Munguia identified the passengers as his friends and that his

vehicle and border crossing card were confiscated. But these facts are only

relevant evidence in light of the passengers’ hearsay admissions; without those

admissions, the evidence relied on by the majority provides no support for the

BIA’s conclusion.

      In my view, the only information in the record that can properly support
Acosta-Munguia’s removability (in addition to the adverse inference drawn from

his silence) is the statement on the I-213 form indicating that, at the time of the

border incident, he waived a hearing before an IJ to contest the smuggling charge.

In his removal hearing, however, Acosta-Munguia disputed this, claiming that he

had, in fact, requested a hearing. The IJ never made a factual finding on this issue;

instead, his opinion stated, incorrectly, that Acosta-Munguia “admitted” that he

had waived his right to a hearing. Absent such a finding, there is no factual

support properly in the record to bolster the adverse inference drawn from Acosta-

Munguia’s silence, as required by Guevara. I would therefore remand to the BIA

for a finding on this point.




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