Montelongo v. Mukasey ( 2007 )

MEMORANDUM ^***

Aurora Montelongo, a native and citizen of Mexico and lawful permanent resident of the United States, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision finding her removable for participating in alien smuggling. We have jurisdiction under 8 U.S.C. § 1252. “Although we review for reasonable, substantial, and probative evidence in the record as a whole, we affirm only if the [agency] has successfully carried this heavy burden of clear, unequivocal, and convincing evidence.” Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir.2005) (internal quotations omitted). We grant the petition for review and remand.

The BIA found that Montelongo’s transportation of aliens already within the United States constituted participation in a prearranged plan to smuggle the aliens into the United States. On the record before us, we cannot determine whether Montelongo’s participation began before the act of smuggling ceased. See Urzua Covarrubias v. Gonzales, 487 F.3d 742, 748 (9th Cir.2007). Accordingly, we remand for further proceedings to resolve this issue.

PETITION FOR REVIEW GRANTED; REMANDED.

*** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.