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Alma Nelida Martinez, A076 824 333 (BIA March 19, 2015)
Alma Nelida Martinez, A076 824 333 (BIA March 19, 2015)
Department of Justice
Executive Office for Immigration Review
A 076-824-333
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Greer, Anne J.
Wendtland. Linda S.
Userteam: Docket
U.S.
Department of Justice
File:
Date:
APPEAL
ON BEHALF OF RE SPONDENT:
ON BEHALF OF DH S:
Stuart D. Alcorn
Sec.
237(a)(2)(A)(iii), I&N Act [8 U. S.C. l 227(a)(2)(A)(iii)] Convicted of aggravated felony (as defined in section 10l(a)(43)(N))
Sec.
APPLICATION:
Adjustment of status
The respondent, a native and citizen of Mexico, has appealed from the decision of the
Immigration Judge dated February 7, 2013.
sustained the charges of deportability based on the evidence in the record of proceeding relating
to the respondent's May 18, 2005, conviction for Bringing in and Harboring Certain Aliens in
violation of section 274(a)(l )(A)(ii) of the Immigration and Nationality Act, 8 U. S.C.
1324(a)(l)(A)(ii) (I.J. at 2-5; Exhs. 1-4). Second, the Immigration Judge made an adverse
credibility finding with regard to the respondent and her United States citizen spouse (I.J. at 3-4).
Finally, the Immigration Judge determined that the respondent has not established her
admissibility for adjustment of status under section 212(a)(6)(E)(i) of the Act, 8 U. S.C.
I 182(a)(6)(E)(i), by a preponderance of the evidence (I.J. at 5-6). For the following reasons
the respondent's appeal will be sustained, and the record of proceeding will be remanded for
further proceedings and the entry of a new decision.
We agree with the Immigration Judge that the evidence presented by the Department of
Homeland Security C'DHS") establishes that the respondent is deportable under section
237(a)(2)(A)(iii) of the Act, 8 U. S.C. 1227(a)(2)(A)(iii). The respondent was convicted under
section 274(a)(l)(A)(ii) of the Act, and section IOI(a)(43)(N) of the Act, 8 U. S.C.
Cite as: Alma Nelida Martinez, A076 824 333 (BIA March 19, 2015)
IN REMOVAL PROCEEDING S
the Act.
The Criminal Information to which the respondent pleaded guilty reflects that on
January 21, 2005, the respondent and her United States citizen husband with:
knowing and in reckless disregard of the fact that [the unlawfully present alien]
was an alien who had come to, entered and remained in the United States in
violation of law, did transport and move such alien for the purpose of commercial
within the United States, by means of a motor vehicle.
(Exh. 3 at p.3). The respondent testified that a group of five men approached her husband at a
gas station in Laredo, Texas, near the southern border and offered to pay for a ride further north
(Tr. at 19-25). The respondent further testified that, although she did not "know" that the men
were unlawfully present aliens, she assumed that they were because they were seeking a ride
from the gas station to go further inland (Tr. at 23). The respondent explained that she and her
husband divided the five men between their two vehicles and drove until they reached the border
patrol checkpoint, where, upon inquiry and investigation, she and her husband were arrested and
eventually charged under section 274(a)(l )(A)(ii) of the Act (Tr.at 2 1, 24).
On appeal the respondent argues that she is not inadmissible for adjustment of status under
section 2 12(a)(6)(E)(i) of the Act because "she did not know the manner of [the five aliens']
unlawful entry in the United States" (Respondent's Br. at 12). The respondent further contends
that the fact that. she did not transport the five aliens "immediately after their unlawful entry"
shows that she "was not part of a scheme or plan to assist the aliens to enter the United States
illegally" (Respondent's Br. at 12).
We recognize that the respondent has the burden of establishing that she is "clearly and
beyond doubt" admissible for adjustment of status. See Soriano v. Gonzales, 484 F.3d 3 18, 320
n. I (5th Cir. 2007) ("In a removal proceeding, the applicant for admission has the burden of
showing that he is 'clearly and beyond doubt entitled to be admitted and is not inadmissible
under [8 U.S.C.] 1 182 . . . ."' (citation omitted)).
However, for the respondent to be
inadmissible as a result of alien smuggling, the record must include at least some affirmative
indication of such inadmissibility, and on this record, we see no such affirmative indication.
To begin with the statute of conviction, section 274(a)( l )(A)(ii) of the Act, has a minimum
mens rea of "reckless disregard," meaning that mere recklessness is sufficient to support a
conviction. Section 2 12(a)(6)(E)(i) of the Act, conversely, requires outright ''knowledge" on the
part of the respondent in order for her to trigger this ground of inadmissibility.
Having reviewed the record of proceeding in its entirety, including the Report of
Investigation prepared on January 21, 2005 (Form G- 166), we see no affirmative indication that
the respondent may have "knowingly ..encouraged, induced, assisted, abetted, or aided" any of
the aliens identified in the Report of Investigation "to enter or try to enter the United States in
.
violation of law ..
" See section 2 12(a)(6)(E)(i) of the Act. While the respondent's refusal to
cooperate with the investigation may support an adverse inference against her, such an inference
alone does not rise to the level of an affirmative indication of potential inadmissibility under
section 2 12(a)( 6)(E)(i) of the Act. See, e.g., Matter of Guevara, 20 I&N Dec. 238 (BIA 199 1).
Cite as: Alma Nelida Martinez, A076 824 333 (BIA March 19, 2015)
A076824 333
Accordingly, we reverse the Immigration Judge's determination that the respondent has not
established her admissibility for adjustment of status under section 2 l 2(a)(6)(E)(i) of the Act.
We will therefore remand the record of proceeding for the Immigration Judge to determine if the
respondent is otherwise admissible and eligible for adjustment of status, as well
as
deserving of
ORDER: The respondent's appeal is sustained, and the record of proceeding is remanded for
further proceedings and th
on
Cite as: Alma Nelida Martinez, A076 824 333 (BIA March 19, 2015)
February 7, 2013
A076-824-333
In the Matter of
CHARGES:
ON BEHALF OF RESPONDENT:
ON BEHALF OF OHS:
STUART D.
ALCORN
File:
(Field Cod
Texas.
1999,
On July 24,
by an adjustment of
the Department of
of the
with counsel,
charges.
The
denied the
(Exhibit 2}
of
of
2013
A076-824-333
February 7,
2010,
the Act,
in the words of
violation of law did transport and move such alien for purpose
of commercial advantage or a private financial gain,
and in
and that
21,
2005.
working day,
she had never been arrested and later that she did
not remember,
A076-824-333
in fact,
February 7,
2013
are
been arrested and convicted for the offense described here and
various other instances during her testimony and her eventual
The
I believe is
I would have to
find that this would be sufficient given the Fifth Circuit Court
of Appeals holding in Soriano v.
Cir.
2007)
(5 th
A076-824-333
February 7, 2013
in fact, shifts.
A076-824-333
February 7, 2013
that the individual who was bringing the group into the United
States.
Where,
_ _ as here, the respondent has been convicted of
and on
of
A076-824-333
February 7,
2013
GARY D.
BURKHOLDER
Immigration Judge
A076-824-333
February 7, 2013
citizenship,
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Judge GARY
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BURKHOLDER
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