Mario Alonso Fernandez v. Eric Holder, Jr. , 422 F. App'x 341 ( 2011 )

Case: 10-60157 Document: 00511445542 Page: 1 Date Filed: 04/14/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 14, 2011
No. 10-60157
Summary Calendar Lyle W. Cayce
Clerk
MARIO ALBERTO ALONSO FERNANDEZ,
Petitioner
v.
ERIC HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A091 224 695
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Mario Alberto Alonso Fernandez, a native and citizen of Mexico, seeks a
petition for review of the order of the Board of Immigration Appeals (BIA)
ordering his removal under § 237(a)(1)(E)(i) of the Immigration and Nationality
Act (INA), 8 U.S.C. § 1227(a)(1)(E)(i), as an alien who knowingly encouraged,
induced, assisted, abetted, or aided another alien to enter or try to enter the
United States; and under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 10-60157 Document: 00511445542 Page: 2 Date Filed: 04/14/2011
No. 10-60157
an alien convicted of aggravated felony, specifically, transporting undocumented
aliens within the United States.
At a hearing on the charges, Alonso, an associate of Alonso’s, and an
Immigrations and Customs Enforcement agent testified regarding Alonso’s
involvement in the transportation of several illegal aliens to and within the
United States. The testimony showed that Alonso participated in a plan to
transport a group of aliens in Mexico almost to the border with the United
States, cross into the United States without the aliens, rejoin the aliens at a gas
station just within the United States border, and then assist the aliens travel
further within the United States. Alonso argues that the IJ improperly
considered evidence outside of the record of his conviction to sustain the
§ 1227(a)(1)(E)(i) charge. Section 1227(a)(1)(E)(i) “requires only a showing of,
not a conviction of, unlawful presence in the United States and alien smuggling
activities.” Renteria-Gonzalez v. INS, 322 F.3d 804, 817 n.15 (5th Cir. 2002).
Thus, the IJ”s consideration of evidence regarding Alonso’s actual conduct rather
than only evidence of the 1997 offense of conviction was proper. See id.The IJ and BIA further properly relied upon the evidence of those same
activities to conclude that Alonso was inadmissible under INA § 212(a)(6)(E)(i),
8 U.S.C. § 1182(a)(6)(E)(i). Under § 8 U.S.C. § 1182(a)(6)(E)(i), “Any alien who
at any time 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 is
inadmissible.” As with § 1227(a)(1)(E)(i), the analysis focuses on the actual
conduct rather than on a conviction for a criminal offense. See Soriano v.
Gonzalez, 484 F.3d 318, 319-21 (5th Cir. 2007).
Because Alonso was inadmissible under § 1182(a)(6)(E)(i), he was not
eligible for a waiver under INA § 212(h), 8 U.S.C. § 1182(h), which permits the
waiver of inadmissibility under § 1182(a)(2)(A)(i)(I), (II), (B), (D), and (E).
The petition for review is DENIED.
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