                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                             FILED
                            FOR THE NINTH CIRCUIT
                                                                             JUN 29 2017
ALEXANDER DIAZ MARTINEZ,                         No. 12-71822            MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


              Petitioner,                        Agency No. A071-581-265

 v.
                                                 MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


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

                        Argued and Submitted June 5, 2017
                              Pasadena, California

Before: GRABER, SACK,** and MURGUIA, Circuit Judges.

      Petitioner Alexander Diaz-Martinez timely seeks review of the Board of

Immigration Appeals’ ("BIA") dismissal of his appeal of the immigration judge’s

("IJ") order finding him removable. We deny the petition.



      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      ***
        The Honorable Robert D. Sack, United States Circuit Judge for the Court
of Appeals for the Second Circuit, sitting by designation.
      1. The BIA correctly held that the admission of Petitioner’s earlier

statements and other evidence violated neither 8 C.F.R. § 287.3(c) nor the Fifth

Amendment. Because Petitioner’s earlier statements were made days before the

issuance of the notice to appear, § 287.3(c) does not apply. Samayoa-Martinez v.

Holder, 558 F.3d 897, 901–02 (9th Cir. 2009); In re E-R-M-F-, 25 I. & N. Dec.

580, 582–85 (B.I.A. 2011). "Miranda warnings are not required before questioning

in the context of a civil deportation hearing," United States v. Solano-Godines, 120

F.3d 957, 960 (9th Cir. 1997), and Petitioner has not argued that his statements

were coerced.

      2. The BIA correctly held that, unlike in Hernandez-Guadarrama v.

Ashcroft, 394 F.3d 674 (9th Cir. 2005), the admission of earlier statements by

Petitioner’s friend, in this case, was irrelevant to the BIA’s analysis. The BIA

relied only on the testimony of Petitioner and other witnesses at the merits hearing.

      3. Substantial evidence supports the agency’s adverse credibility

determination. See Perez-Arceo v. Lynch, 821 F.3d 1178, 1183 (9th Cir. 2016)

(stating standard of review). Petitioner admitted at the merits hearing that he had

lied to border patrol officers about his attempted entry into the United States. See

Silva-Pereira v. Lynch, 827 F.3d 1176, 1187 (9th Cir. 2016) (holding that an

admission of prior dishonesty can support an adverse credibility finding), cert.


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denied, 137 S. Ct. 1366 (2017). The IJ noted that Petitioner could not explain

adequately why he lied. In view of the implausibility of Petitioner’s testimony,1

the record does not compel the conclusion that Petitioner’s story—that he was an

innocent participant in his friend’s devious plan—was truthful. Accordingly, the

BIA correctly concluded, in light of the adverse credibility finding, that there was

substantial evidence that Petitioner attempted to aid and abet alien smuggling.2

      4. The BIA did not err in applying the "clear and convincing" standard

instead of the "clear, unequivocal, and convincing" standard. See Mondaca-Vega

v. Lynch, 808 F.3d 413, 419–22 (9th Cir. 2015) (en banc) (holding that the two

standards are the same), cert. denied, 137 S. Ct. 35 (2016).

      Petition DENIED.




      1
        Petitioner knew that his friend was not a United States citizen and that his
friend’s visa had been cancelled just two weeks earlier, after he tried to walk across
the border.
      2
         Because we deny the petition on this ground, we need not reach the BIA’s
alternative holding that, crediting Petitioner’s testimony, he engaged in alien
smuggling.
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                                                                              FILED
Diaz-Martinez v. Sessions, No. 12-71822                                        JUN 29 2017

Murguia, Circuit Judge, dissenting in part:                             MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


      I disagree with the majority that the BIA correctly concluded, based on the

adverse credibility determination, that Diaz-Martinez aided alien smuggling. No

party, judge, or court—not the immigration judge, not the BIA, and not the

government on appeal—has argued that the adverse credibility determination

provided the basis for Diaz-Martinez’s conviction of aiding alien smuggling. The

IJ never referenced the adverse credibility determination in its analysis of why

Martinez aided alien smuggling; the BIA explicitly stated that the adverse

credibility finding “is not essential to removability.” Because the agency never

explicitly (or, in my view, implicitly) relied on the adverse credibility

determination for its substantive finding that Diaz-Martinez aided alien smuggling,

I would grant the petition. At the very least, we should have remanded this case to

the BIA to address the significance, if any, of the adverse credibility determination.

      The majority relies on Silva-Pereira v. Lynch, 827 F.3d 1176 (9th Cir.

2016), for its conclusion that substantial evidence supported the BIA’s adverse

credibility determination. 1 Silva-Pereira at best stands for the simple notion that a

pre-removal-proceeding lie can “support” an adverse credibility determination that

already is supported by multiple inconsistencies in the petitioner’s asylum


      1
          Neither party cited or briefed Silva-Pereira.
                                             1
application and testimony before the IJ. Id. at 1185–87. In contrast to the

petitioner in Silva-Pereira, here, the only basis for the adverse credibility

determination is the fabricated story Diaz-Martinez told immigration officials at

secondary inspection. Diaz-Martinez never made an inconsistent or untrue

statement in his filings or testimony before the IJ. The majority elevates Silva-

Pereira to a status not envisioned by that case and with potentially dramatic

unintended consequences.

      I have little doubt that a proper adverse credibility determination could

support the BIA’s decision in this case—if the BIA actually relied on the

determination. But the BIA did not do so, and our job is not to supply the agency’s

reasoning for it. In Altamirano v. Gonzales, we refused to consider BIA’s

argument on appeal that the petitioner’s presence in the car provided an air of

normalcy and therefore constituted an affirmative act constituting aiding alien

smuggling, because “[t]his . . . was not the basis for the IJ’s decision.” 427 F.3d

586, 595 (9th Cir. 2005). We explained that “[w]e ‘may not accept appellate

counsel’s post hoc rationalizations for agency action; Chenery requires that an

agency’s discretionary order be upheld, if at all, on the same basis articulated in the

order by the agency itself.’” Id. (quoting Burlington Truck Lines Inc. v. United

States, 371 U.S. 156, 168–69 (1962)). Here, not only does the majority ignore the




                                           2
warning not to permit post hoc rationalizations for agency action, but the majority

doubly errs by actually supplying the post hoc rationalization.

      Based on Altamirano, I would grant the petition. At the very least, however,

we should have taken a more cautious approach and remanded the case so that the

agency can explain the significance, if any, of the adverse credibility

determination. Because the majority decision allows for the removal of Diaz-

Martinez based on reasoning that neither the IJ nor the BIA relied on, I must

respectfully dissent.




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