                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            NOV 05 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ROSA HAYDEE HERNANDEZ-                           No.   15-70902
ROMERO,
                                                 Agency No. A094-190-612
              Petitioner,

 v.                                              MEMORANDUM*

WILLIAM P. BARR, Attorney General,

              Respondent.


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

                      Argued and Submitted October 21, 2019
                            San Francisco, California

Before: BYBEE and N.R. SMITH, Circuit Judges, and MENDOZA,** District
Judge.

      Rosa Hernandez–Romero, a native and citizen of El Salvador, petitions for

review of the dismissal of her appeal by the Board of Immigration Appeals

(“BIA”), following an Immigration Judge’s (“IJ”) order of removal and denial of

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Salvador Mendoza, Jr., United States District Judge
for the Eastern District of Washington, sitting by designation.
her applications for asylum, withholding of removal, relief under the Convention

Against Torture (“CAT”), and cancellation of removal. We deny the petition for

review in part, grant the petition in part, and remand for further proceedings.

1.    Substantial evidence supports the BIA’s conclusion that Hernandez–Romero

was removable as an alien smuggler. First, Hernandez–Romero’s due process

rights were not violated by the admission of the statement she made at the border

before being informed of her right to counsel. Hernandez–Romero was not in

formal removal proceedings when she made the statements to the border agent;

therefore, the border agent was not required under the regulation to provide her

with advisals regarding her right to counsel.1 See Samayoa–Martinez v. Holder,

558 F.3d 897, 901 (9th Cir. 2009); 8 C.F.R. § 287.3(c).

      Second, Hernandez–Romero’s due process rights were not violated by the

admission of the Forms I-213 and G-66 without requiring the government to

produce the creator of the documents. We have long held that these forms are

reliable documents and admissible absent evidence challenging the documents


      1
        Hernandez–Romero did not assert that the agency egregiously violated her
Fourth Amendment rights to the BIA or in her opening brief. See Perez Cruz v.
Barr, 926 F.3d 1128, 1137 (9th Cir. 2019) (outlining exceptions to the Fourth
Amendment Exclusionary Rule in immigration proceedings). Thus she did not
exhaust this issue before the BIA, Barron v. Ashcroft, 358 F.3d 674, 676–78 (9th
Cir. 2004), and has waived it on appeal, Martinez–Serrano v. INS, 94 F.3d 1256,
1259–60 (9th Cir. 1996).
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authenticity or reliability, which Hernandez–Romero did not present. See Espinoza

v. INS, 45 F.3d 308, 310 (9th Cir. 1995).

      Finally, the BIA did not err in sustaining the alien smuggling charge.

Hernandez–Romero’s actions met the elements of 8 U.S.C. § 1182(a)(6)(E)(i).

The record supports the conclusion that, despite learning that the minor child’s

documents were fraudulent just prior to presenting herself and the minor child at

the border, Hernandez–Romero nevertheless knowingly presented those false

documents to the border agent.

2.    The BIA concluded that Hernandez–Romero was not eligible for

cancellation of removal, because (A) she failed to establish seven years of

residency after being admitted in any status and (B) she was excluded under

8 U.S.C. § 1229b(c)(6) because she received suspension of removal under

NACARA § 203.

      A.     Since the BIA issued its decision, we issued Ramirez v. Brown, 852

F.3d 954 (9th Cir. 2017). In Ramirez, we concluded that a Temporary Protected

Status (“TPS”) recipient is considered “inspected and admitted” for purposes of

determining eligibility for adjustment of status. Id. at 964. Because the BIA did

not have the benefit of this opinion in determining whether Hernandez–Romero

was admitted when she received her TPS status, we remand this issue back for the


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BIA to address in the first instance. See INS v. Orlando Ventura, 537 U.S. 12, 16

(2002) (per curiam).

      B.     As the agency acknowledged, § 1229b(c)(6) does not specifically

address persons who were granted special rule cancellation of removal under

NACARA § 203. We recognize that NACARA § 203(f)(1) provides authority to

the Attorney General to act under § 1229b; however, it is ambiguous whether

Congress intended § 1229b(c)(6) to extend to NACARA § 203 recipients.

Although we owe deference to the BIA’s interpretation of the Immigration and

Naturalization Act, we cannot accord deference under Chevron U.S.A. Inc., v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) “to the [BIA’s]

unpublished decision[], . . . because [it will] not bind future parties.”

Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009) (en banc). We

are also unable to apply deference under Skidmore v. Swift & Co., because the BIA

did not provide sufficient reasoning for its decision. 323 U.S. 134, 140 (1944)

(noting that deference “depend[s] upon the thoroughness evident in its

consideration, the validity of its reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it power to persuade, if lacking

power to control”). We therefore remand this issue to the BIA for additional

investigation or explanation. See Negusie v. Holder, 555 U.S. 511, 523 (2009).


                                            4
3.    Substantial evidence supports the BIA’s decision that Hernandez–Romero

failed to establish past persecution or a reasonable probability of persecution or

torture if she returns. Hernandez–Romero did not experience past persecution, and

she failed to establish that she will be subjected to persecution on account of a

protected ground in the future. Accordingly, Hernandez–Romero’s claims of

asylum and withholding of removal fail. See Huang v. Holder, 744 F.3d 1149,

1152 (9th Cir. 2014). Even though the IJ acknowledged that El Salvador was

dangerous, Hernandez–Romero failed to establish she would be tortured or that the

government would acquiesce in the torture. See Arteaga v. Mukasey, 511 F.3d

940, 948–49 (9th Cir. 2007).

      The parties shall bear their own costs on appeal.

      PETITION FOR REVIEW GRANTED in part, DENIED in part, and

REMANDED.




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