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

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For more unpublished BIA decisions, visit www.irac.net/unpublished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.
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
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
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
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
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
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,
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the respondent,
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RICO J.
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BARTOLOMEI
Immigration Judge
A095-445-013
October
4,
2012
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Immigration Judge RICO J.
bartolor on January 2,
A095-445-013
BARTOLOMEI
2013 at 3 : 3 4
PM GMT
October 4,
2012

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U.S. Department of .

Board of Immigration Appeals

OHS/ICE Office of Chief Counsel - SND

Ronzio & Associates

880 Front St., Room 1234

3250 Wilshire Blvd., Ste. 2010

Name: RAMIREZ MORAN, GUADALUPE

Date of this notice: 12/18/2014

For more unpublished BIA decisions, visit www.irac.net/unpublished

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

A095 445 013 - San Diego, CA

In re: GUADALUPE RAMIREZ MORAN

Frank E. Ronzio, Esquire

Termination of removal proceedings

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

summary affirmance. The record will be remanded.

She further argues that the Immigration Judge

e1Ted in concluding that she is inadmissible as charged.

Upon remanded proceedings from the

Gonzales, 427 F.3d

586, 592 (9th Cir. 2005).

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

However, a respondent should be given the

Immigrant & Refugee Appellate Center | www.irac.net

A095 445 013

While we previously found the

If upon remand, the respondent exercises her Fifth Amendment privilege

See Espinoza v. Immigration and

Naturalization Service, supra.

Accordingly, the following order will be entered.

FOR THE BOARD

Immigrant & Refugee Appellate Center | www.irac.net

UNITED STATES IMM IGRATION COURT

GUADALUPE RAMIREZ MOR.N

On remand from the Board of

ORAL DECISION OF THE IMM IGRATION JUDGE

the Court rendered an oral decision

extemporaneously in the presence of both parties.

but granted the

the Board of Immigration

Appeals dismissed the male respondent's appeal,

the Department of Homeland Security's appeal for Guadalupe

Immigrant & Refugee Appellate Center | www.irac.net

EXECUTIVE OFFICE FOR

the current respondent.

The Board of Immigration

Appeals determined that it was an error for this Immigration

Immigration Appeals determined that it was an error for this

it implicated the respondent's spouse.

The Board indicated that that was a clear error.

The Court has followed the remand of the

Board and conducted these further proceedings.

The respondent has offered her

declaration and the declaration from her three daughters who

Based upon the decision of

the Court concludes that the Department of