U.S. Department of .

Justice
Executive Office for Immigration Review

Board of Immigration Appeals

O.ffice ofthe Clerk
5107 Leesb11rg Pike, S11ire 2000
1:11/fs Church. I 'irgmta 10530

OHS/ICE Office of Chief Counsel - SND

Ronzio & Associates

880 Front St., Room 1234

San Diego, CA 92101-8834

3250 Wilshire Blvd., Ste. 2010

Los Angeles, CA 9001 O

Name: RAMIREZ MORAN, GUADALUPE

A 095-445-013

Date of this notice: 12/18/2014

Enclosed is a copy of' the Board's decision and order in the above-referenced case.
Sincerely,

Donna Carr
Chief' Clerk

lnclosure

Panel Members:
Malphrus, Garry D.
Mul lane Hugh G.
Grant, Edward R.
,

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Guadalupe Ramirez Moran, A095 445 013 (BIA Dec. 18, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Ronzio, Frank E., Esq.

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

Date:

A095 445 013 - San Diego, CA

DEC 18 2014

In re: GUADALUPE RAMIREZ MORAN

APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Frank E. Ronzio, Esquire

Ted Y. Yamada
Deputy Chief Counsel

CHARGE:
Notice: Sec. 212(a)(6)(E)(i) l&N Act (8 U.S.C. 1l82(a)(6)(E)(i)]
APPLICATION:

Termination of removal proceedings

The respondent, a native and citizen of Mexico and a lawful permanent resident of the United
States, has appealed from the Immigration Judge's decision dated October 4, 2012, finding her
inadmissible.

The Department of Homeland Security (DHS) has filed a motion seeking

summary affirmance. The record will be remanded.

The respondent argues that the Immigration Judge erred in admitting the respondent's Record
of Deportable/Inadmissible Alien (Form I-213).

She further argues that the Immigration Judge

e1Ted in concluding that she is inadmissible as charged.

The Immigration Judge concluded that the respondent is removable as charged under section
212(a)(6)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. 1 l82(a)(6)(E)(i), as an alien
who "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."

Upon remanded proceedings from the

Board, in which we determined that the Record of Deportable/Inadmissible Alien (Form 1-213),
was admissible, the Immigration Judge concluded that the respondent had perfonned "an
affirmative act of help, assistance, or encouragement" in support of an unlawful alien's
attempted entry into the United States in violation of law. See Altamirano

v.

Gonzales, 427 F.3d

586, 592 (9th Cir. 2005).

We have consistently held that, as an official record, a Form I-213 is presumptively reliable.
See Espinoza

v.

Immigration and Naturalization Service, 45 F.3d 308 (9th Cir. 1995) (finding

that information on an authenticated F01m I-213 is presumed to be reliable in the absence of

evidence to the contrary presented by the alien).

However, a respondent should be given the

opportunity to rebut the statements recorded in an I-213, and it is unclear whether the respondent
had the opportunity to do so here.

Cite as: Guadalupe Ramirez Moran, A095 445 013 (BIA Dec. 18, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A095 445 013

In this case, we find remand warranted to allow the Immigration Judge to make specific
findings as to whether the respondent stated what is reflected in the Form I-213, and whether
those statements were voluntarily made, as the 1-213 indicates.

While we previously found the

Form I-213 admissible, it is for the Immigration Judge to dete1mine whether the respondent's
claim that she did not say what is in the Form 1-213 is correct. While the Immigration Judge is
not compelled to call the author of the Form 1-213 to testify to establish its reliability, further
clarification

is

given

our

limited

fact-finding

authority.

See

C.F.R.

If upon remand, the respondent exercises her Fifth Amendment privilege

against self-incrimination and does not testify, the Immigration Judge should then consider
whether she has shown that the Form I-213 is not reliable.

See Espinoza v. Immigration and

Naturalization Service, supra.

Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Court for further proceedings consistent
with the foregoing opinion and for the entry of a new decision.

FOR THE BOARD

Cite as: Guadalupe Ramirez Moran, A095 445 013 (BIA Dec. 18, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

1003.1(d)(3)(iv).

warranted

DEPARTMENT OF JUSTICE
IMMIGRATION REVIEW

UNITED STATES IMM IGRATION COURT

SAN DIEGO,

File:

CALIFORNIA

October 4,

A095-445-013

2012

In the Matter of

IN REMOVAL PROCEEDINGS

GUADALUPE RAMIREZ MOR.N

RESPONDENT

CHARGES:

On remand from the Board of

APPLICATION:

ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

ABISAG AYALA,

JONATHAN S.

GRANT,

Immigration Appeals.

Esquire

Esquire

ORAL DECISION OF THE IMM IGRATION JUDGE

On June 9,

2010,

the Court rendered an oral decision

extemporaneously in the presence of both parties.

found the male respondent to be removable,
female respondent's motion to terminate.
those decisions.

On January 5,

2012,

The Court

but granted the

Both parties appealed

the Board of Immigration

Appeals dismissed the male respondent's appeal,

but sustained

the Department of Homeland Security's appeal for Guadalupe

Immigrant & Refugee Appellate Center | www.irac.net

UNITED STATES

EXECUTIVE OFFICE FOR

the current respondent.

The Board of Immigration

Appeals determined that it was an error for this Immigration

Judge to exclude the records of deportable aliens.

The Board of

Immigration Appeals determined that it was an error for this

Courc to look at the 213 of the smugglee to infer that it should
have been admitted in her case because it did not implicate chis
respondent in any way;

it implicated the respondent's spouse.

The Board indicated that that was a clear error.

The Board of Immigration Appeals did remand the record for
further proceedings.

The Court has followed the remand of the

Board and conducted these further proceedings.

have offered further argument.

Both parties

The respondent has offered her

declaration and the declaration from her three daughters who

were in the vehicle on April 25,

2008.

The Court need not and does not repeat the legal standard
that it articulated in its June 9,
incorporate it by way of reference.

2010,

decision;

I simply

Based upon the decision of

the Board of Immigration Appeals and the findings that the Board
made in its decision,

the Court concludes that the Department of

Homeland Security has met its burden of proof to show that the
respondent was an active participant in a scheme to cross over
an undocumented individual.

The respondent,

in the 213,

indicated to the smuggled alien that she hide herself on the

floor of the vehicle.
decision,

The Court observed,

in its first oral

that the astute primary officer had actually

A095-445-013

October 4,

2012

Immigrant & Refugee Appellate Center | www.irac.net

Ramirez Moran,

covered.

The 213 for the respondent indicates that the respondent agreed
to help this individual in,

that she learned along the way to

the port of entry that the individual did not have documents to
come to Lhis country,

and that the respondent told this

individual to hide herself on the floor of the vehicle.

Since the 213

i.

is in and since it contains those statements,

respondent's desire to cross-examine the maker of that

statement is not an issue before this Court,

as the Board of

Immigration Appeals has admitted the 213 for this respondent.

This Court does consider the declaration of the respondent in
which she indicates that she had no knowledge,
was agreeing to cross a person in,
person had documents,
the floor.

The Court,

that she simply

that she believed that the

and it was the person who hid herself on

though,

believes that since the Board of

Immigration Appeals admitted the

213 into the record,

that that

statement that she told the officers that she was the one that
told the person to hide on the floor is entitled to weight.
Those actions taken together do demonstrate that the
respondent was an active participant in a scheme to cross this
individual in,

in violation of law.

She argues in her motion to

terminate after the remand that the Government still has not
carried its burden of proof.
decision,
acL;-''"J..

The respondent relies on the

but as the Government points out,

presence alone is not enough;

A095-445-013

actual presence alone is

October 4,

2012

Immigrant & Refugee Appellate Center | www.irac.net

discovered the body in the back row of the vehicle,

direct action,

re flecte d

as

in the 213's,

Here,

that

there is a

the respondent

told the individual to hide and get on the floor.

The respondent also relies on a Sixth Circuit decision and
she argues that it should be persuasive in this matter.

The

Cour concludes that the facts in that case are clearly

distinguishable from the facts in this particular case.
par ticular case,

In that

the respondent had a good-faith belief that the

person had a legal right to come into the United States because
the individual had a pending application.

The Sixth Circuit

reasoned that an individual may not know the intricac es,

and

pointed to the foreign affairs manual about a good-faith belief,

although mistaken,
smuggling.

Here,

could be a defense to ineli gibility for alien

the 213 shows that the respondent was an

active participant by directing the indiv idua l

to hide herself

on the floor of the vehicle.

In light of the determinations by the Board of Immigration

Appeals in its decision of January 5,

and speci fical l y re l yi ng

on the statement made by the respondent in the 213 on the

document that the Board has admitted,
smugglee to hide herself on the floor.

other evidence of record,

the respondent told the

That,

along with the

does show that the respondent was an

active participant in the alien smuggling scheme.

The Court

concludes that the Department of Homeland Security has met its

burden of proof by clear and convincing evidence to show that

A095-445-013

October 4,

2012

Immigrant & Refugee Appellate Center | www.irac.net

There must be a direct action.

not enough.

a returning lawful permanent resident,

should be

regarded as seeking admission and that she is not eligible and

that the Government has met its burden of proof to show that she
was an active participant in a scheme to cross over an
undocumented individual.
charged,

The Court finds her to be removable as

in light of the Board's decision,

to terminate.

Accordingly,

and denies her motion

the Court will enter the following

orders in the case:

ORDER
IT IS HEREBY ORDERED that the respondent's motion to
terminate these proceedings be,
IT IS

and is hereby,

denied.

FURTHER ORDERED that the respondent be ordered

removed from the United States to her native country of Mexico

based upon the charge brought against her in the Notice to
Appear.

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October 4,

2012

Immigrant & Refugee Appellate Center | www.irac.net

the respondent,

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Immigrant & Refugee Appellate Center | www.irac.net

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J:

BARTOLOMEI

Immigration Judge

A095-445-013

October

4,

2012

'

Immigrant & Refugee Appellate Center | www.irac.net

//s//
Immigration Judge RICO J.
bartolor on January 2,

A095-445-013

BARTOLOMEI

2013 at 3 : 3 4

PM GMT

October 4,

2012