Gabriel Higareda Avila v. Eric Holder, Jr. , 427 F. App'x 570 ( 2011 )

FILED
NOT FOR PUBLICATION APR 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GABRIEL HIGAREDA AVILA, No. 09-73183
Petitioner, Agency No. A077-355-456
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2011 **
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
Gabriel Higareda Avila, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252.
We review for substantial evidence the agency’s findings of fact, and review de
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
novo constitutional challenges to removal orders. Lopez-Rodriguez v. Mukasey,
536 F.3d 1012, 1015 (9th Cir. 2008). We deny the petition for review.
Substantial evidence supports the agency’s determination that Higareda
Avila participated in alien smuggling as defined in 8 U.S.C. § 1182(a)(6)(E)(i),
where the record reflects that he delivered fraudulent entry documents to another
alien and drove the alien to the border intending to assist his entry into the United
States in violation of law. See Urzua Covarrubias v. Gonzales, 487 F.3d 742,
748-49 (9th Cir. 2007) (knowing act of assistance to another’s effort to enter the
United States illegally is an affirmative act constituting alien smuggling); cf.
Aguilar Gonzalez v. Mukasey, 534 F.3d 1204, 1209 (9th Cir. 2008) (no affirmative
act of alien smuggling where petitioner did not provide her daughter’s birth
certificate for use by another to enter the United States, but merely acquiesced to
its use).
Higareda Avila’s due process rights were not violated by admission of the
Form I-213 because Higareda Avila failed to produce probative evidence casting
doubt on the form’s reliability. See Espinoza v. INS, 45 F.3d 308, 311 (9th Cir.
1995) (there is no right to cross-examine the preparer of a Form I-213 where the
alien fails to produce probative evidence casting doubt on the form’s reliability).
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Higareda Avila’s claim that the Due Process Clause required that he be
given a Miranda warning before questioning is without merit. See
Samayoa-Martinez v. Holder, 558 F.3d 897, 901 n.6 (9th Cir. 2009) (noting the
government is not required to notify an alien of the right to remain silent or a right
against self-incrimination).
PETITION FOR REVIEW DENIED.
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