                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 01 2010

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

PABLO ESTRADA INIGUEZ,                           No. 06-75068

              Petitioner,                        Agency No. A095-316-016

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

              Respondent.


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

                        Argued and Submitted May 3, 2010
                              Pasadena, California

Before: B. FLETCHER and PAEZ, Circuit Judges, and WALTER, Senior District
Judge.**

       Pablo Estrada Iniguez (“Estrada”), a native and citizen of Mexico, seeks

cancellation of removal on the ground that removal would be an “exceptional and




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
extremely unusual hardship.” 8 U.S.C. § 1229b(b)(1)(D). We remand for further

proceedings.

      The Immigration Judge (IJ) indicated that he found removal to be an

exceptional and extremely unusual hardship for Estrada’s citizen family members,

but declined relief because he found that Estrada was a “smuggler” under 8 U.S.C.

§ 1182(a)(6)(E)(i). He thus lacked “good moral character,” making him ineligible

for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(B). See 8 U.S.C. §

1101(f)(3). On appeal, the Board of Immigration Appeals (BIA) agreed that

Estrada lacked “good moral character.” Estrada now seeks review of the BIA’s

decision, arguing that substantial evidence does not support the agency’s decision.

We have jurisdiction under 8 U.S.C. § 1252(a)(1) and “review for substantial

evidence a finding of statutory ineligibility . . . based on a lack of good moral

character.” Ramos v. INS, 246 F.3d 1264, 1266 (9th Cir. 2001).

      To qualify as a “smuggler,” Estrada must have “knowingly . . . encouraged,

induced, assisted, abetted or aided” the unlawful entry of Francisco, his Mexican

citizen brother, into the United States. 8 U.S.C. § 1182(a)(6)(E)(i) (emphasis

added). The only evidence that is more than supposition in the entire record is

Estrada’s statement that he lent money to his brother upon his brother’s request for

money to come to this country. But when asked what Francisco did with the


                                           2
money Estrada lent him, Estrada answered, “Well, he asked me if I could lend him

money for him to come to this country, so I don’t know.” Estrada said, in explicit

and unmistakable language — “I don’t know” — that he lacked knowledge of how

Francisco would use the money to come to the United States. Because the IJ never

found Estrada incredible, it was simply contrary to the evidence to find that the

element of knowledge was satisfied.

      There is no evidence that Estrada knew Francisco would enter or try to enter

the country illegally. There has been no showing that Estrada knew Francisco

would not obtain, let alone not try to obtain, proper documentation before his

entry. When asked what he understood at the time of the loan, Estrada’s testimony

showed that he did not know that Francisco would enter the country illegally, and

at the time could only speculate. The brothers never spoke about how Francisco

would enter.1

      Substantial evidence does not support the finding that Estrada is a

“smuggler” under 8 U.S.C. § 1182(a)(6)(E)(i), and therefore lacks “good moral

character” under 8 U.S.C. § 1101(f)(3). Because the IJ concluded that Estrada

established the requisite hardship under 8 U.S.C. § 1229b(b)(1)(D), and because

      1
        Although it does not affect our decision, we note that there is no evidence
that Francisco actually used Estrada’s money rather than his own to travel to and
enter this country.

                                          3
the government did not challenge this determination before the BIA, this issue

shall be deemed conclusively established. Cf. Tokatly v. Ashcroft, 371 F.3d 613,

618 (9th Cir. 2004). We grant the petition and remand for the agency to determine

whether Estrada has satisfied the remaining eligibility requirements for

cancellation of removal, and, if so, to exercise its discretion on whether to grant

this relief.

       PETITION GRANTED; REMANDED.




                                          4
                                                                    FILED
Estrada Iniguez v. Holder, No. 06-75068                              JUN 01 2010

WALTER, Senior District Judge, dissenting.                       MOLLY C. DWYER, CLERK
                                                                  U.S. COURT OF APPEALS


      I respectfully dissent. Although the record is limited, a review of the available

testimony leads me to conclude that the Petitioner had the requisite knowledge that

the funds he sent to his brother in Mexico would be used to “aid and abet” his

brother’s illegal entry into the United States.

      Petitioner is eligible for cancellation of removal proceedings only if he carries

the burden of demonstrating that, among other things, he has “good moral character.”

8 U.S.C. § 1229b(b)(1)(B); 8 C.F.R. § 1240.8. To be of “good moral character” the

Petitioner must not be a member of any of the classes of persons referenced by 8

U.S.C. § 1101(f)(3). One such class includes “any alien who at any time knowingly

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

enter the United States in violation of the law.” Id. § 1182(a)(6)(E)(i). This class, as

defined by the statute, is not limited to the criminal coyote smuggler who profits from

human trafficking. It also encompasses any individual who knowingly provides aid

or assistance to facilitate an alien’s unlawful entrance into the United States, even if

the affirmative act is as seemingly minor as providing financial assistance. See Urzua

Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. 2007).

      There is sufficient evidence in the record to conclude that Petitioner knowingly

assisted his brother in illegally entering the United States. During Petitioner’s
hearing, he was asked specifically if he knew what his brother planned to do with the

money. Petitioner answered, “Well, he asked me if I could lend him money for him

to come to this country, so I don’t know.” The fact that Petitioner conditioned his

answer with the phrase “I don’t know” does not change the analysis or negate the fact

that Petitioner plainly stated that his brother asked him for money to illegally enter the

United States.

      Petitioner’s brother asked for money to help with his crossing, which Petitioner

provided. Further, the Petitioner admitted that he knew his brother lacked the proper

documents to legally enter the United States. Finally, his brother did in fact arrive in

the United States and lived with the Petitioner for some period of time. Based on

these facts the Immigration Judge determined, and the BIA affirmed, that Petitioner

aided and abetted his brother in illegally entering the United States, making him

inadmissible and lacking “good moral character.” This Judge cannot say that the

record compels a contrary result as substantial evidence supports this factual finding.

See INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). I would deny the petition

for review.
