                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                              FEB 17 2010

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

ALIDA EUFEMIA PANTOJA-GAYTON,                    No. 05-74845

              Petitioner,                        Agency No. A034-292-175

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

              Respondent.


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

                            Submitted February 12, 2010**
                                Pasadena, California

Before: THOMAS and SILVERMAN, Circuit Judges, and BEISTLINE, *** Chief
District Judge.

       Alida Eufemia Pantoja-Gayton, a native and citizen of Mexico and a legal

permanent resident of the United States, petitions for review of a decision by the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
Board of Immigration Appeals (“BIA”) summarily affirming an immigration

judge’s (“IJ”) determination that she is inadmissible as an alien smuggler under 8

U.S.C. § 1182(a)(6)(E)(i) based on alien smuggling episodes in1988 and 2002.

We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition for

review. Because the parties are familiar with the factual and the procedural history

of this case, we need not recount it here.

                                              I

      An alien who is an “applicant for admission” to the United States bears the

burden of proving that she is clearly and beyond a doubt not inadmissible under 8

U.S.C. § 1182. See 8 U.S.C. § 1229a(c)(2); Altamirano v. Gonzales, 427 F.3d

586, 590-91 (9th Cir. 2005). Pantoja-Gayton contends that, as a lawful permanent

resident, she is not an “applicant for admission.” However, 8 U.S.C. §

1101(a)(13)(C) provides that “[a]n alien lawfully admitted for permanent residence

in the United States shall not be regarded as seeking an admission in to the United

States for purposes of the immigration laws unless the alien . . . (iii) has engaged in

illegal activity after having departed the United States.” Pantoja-Gayton engaged

in illegal activity after departing the United States for Mexico. Thus, the IJ

correctly concluded that Pantoja-Gayton is properly considered an applicant for




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admission, notwithstanding her lawful permanent resident status, and bears the

burden of demonstrating her admissibility.

                                          II

      8 U.S.C. § 1182(a)(6)(E)(i) holds inadmissible “[a]ny alien who at any time

knowingly has encouraged, induced, assisted, abetted, or aided any other alien to

enter or to try to enter the United States in violation of law.” Pantoja-Gayton

admits that she attempted to bring an infant into the United States using a birth

certificate she knew to be false in 2002. She also admits that the infant was born in

Mexico. However, she claims that the child is her husband Charles Cruz

Vazquez’s biological child; derived United States citizenship through him; and is

thus not an “alien” under § 1182(a)(6)(E)(i).

      The IJ did not err in concluding that Pantoja-Gayton failed to satisfy her

burden of proving that the infant was Vazquez’s biological child. First, Vazquez

failed to undergo a paternity test despite stating in a declaration that he was

prepared to do so and having a full year to take the test. His claim that he lacked

the $600 for a paternity test was unconvincing in light of tax records and testimony

from Vazquez himself indicating that he earned a substantial income and had made

substantial expenditures on behalf of his wife and the infant. Second, the

testimony of Pantoja-Gayton and Vazquez did not establish the child’s paternity


                                          -3-
given the IJ’s unchallenged adverse credibility finding. Third, the birth certificate

submitted before the IJ was of questionable origin given that Pantoja-Gayton had

previously purchased and presented a fraudulent birth certificate to consular and

border officials. Accordingly, we agree with the IJ’s determination that Pantoja-

Gayton failed to demonstrate that the infant was a United States citizen through a

biological relationship with Vazquez.

      Because she failed to establish a blood relationship between Vazquez and

the child, Pantoja-Gayton also does not satisfy her burden of showing that she was

eligible for a discretionary family relative waiver of inadmissibility under 8 U.S.C.

§ 1182(d)(11). That provision authorizes such a waiver only “if the alien has

encouraged, induced, assisted, abetted, or aided only an individual who at the time

of such action was the alien's spouse, parent, son, or daughter (and no other

individual) to enter the United States.” As Pantoja-Gayton failed to demonstrate

that the infant was her step-daughter, she does not qualify for a discretionary

waiver under § 1182(d)(11).

      Because Pantoja-Gayton’s acts in 2002 render her inadmissible under §

1182(a)(6)(E)(I), we need not address whether Pantoja-Gayton’s 1988 criminal

conviction for alien smuggling does so as well.

                                         III


                                         -4-
      Pantoja-Gayton next argues that the BIA abused its discretion and violated

her due process rights by issuing a streamlined summary affirmance despite the

IJ’s failure to address all of her arguments. However, contrary to Pantoja-Gayton’s

assertions, the IJ did address all of her arguments in his opinion. Moreover, we

have held that the BIA’s summary affirmance procedure does not violate due

process. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 848-53 (9th Cir. 2003);

see also Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1078 (9th Cir. 2004) (noting

that “where we can reach the merits of the decision by the IJ . . . an additional

review of the streamlining decision itself would be superfluous”) (quotation

omitted).



      PETITION FOR REVIEW DENIED.




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