Yunior Santana-Gonzalez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 23 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YUNIOR LEONARDO SANTANA- No. 18-70135
GONZALEZ,
Agency No. A205-724-820
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 14, 2020
San Francisco, California
Before: FERNANDEZ, WARDLAW, and COLLINS, Circuit Judges.
Concurrence by Judge COLLINS
Yunior Leonardo Santana-Gonzalez, a native and citizen of Cuba and a
lawful permanent resident of the United States, petitions for review of the Board of
Immigration Appeals’ (BIA) decision denying his claim for relief from removal.
He also contends that the Immigration Court lacked jurisdiction over his removal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Panel
proceedings. We have jurisdiction under 8 U.S.C. § 1252. We grant in part and
remand in part.
1. The Immigration Judge properly exercised jurisdiction over Santana-
Gonzalez’s removal proceedings. Although Santana-Gonzalez received a Notice
to Appear that did not include the date and time of his hearing, “[a] notice to
appear need not include time and date information” for jurisdiction to vest in the
Immigration Court, and Santana-Gonzalez had “actual notice of the hearings
through multiple follow-up notices that provided the date and time of each
hearing.” Karingithi v. Whitaker, 913 F.3d 1158, 1159–60 (9th Cir. 2019).
2. As the government concedes, the BIA erred in concluding that
Santana-Gonzalez’s “conviction under 8 U.S.C. § 1325(a)(2) and 18 U.S.C. § 2[was] sufficient, without more, to establish removability under [8 U.S.C.
§ 1227(a)(1)(E)(i)].” Alien smuggling under § 1227(a)(1)(E)(i) ends when “the
initial transporter ceases to transport the alien.” Urzua Covarrubias v. Gonzales,
487 F.3d 742, 748 (9th Cir. 2007). The factual basis of Santana-Gonzalez’s
conviction was in a plea agreement in which he admitted to transporting illegal
aliens “at or near Bisbee, in the District of Arizona” to “aid[] and abet[] their
presence in the United States” after they had already entered the United States. In
light of Covarrubias, this conviction, without more, does not establish
removability. Because the BIA had an opportunity to consider the application of
Panel 2
Covarrubias to this case, we grant the petition in part based on this error. See
Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1080 (9th Cir. 2007).
3. “If we conclude that the BIA’s decision cannot be sustained upon its
reasoning, we must remand to allow the agency to decide any issues remaining in
the case.” Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam).
The agency did not decide whether Santana-Gonzalez is removable under
§ 1227(a)(1)(E)(i) considering the evidence of the conduct underlying his
conviction, rather than the conviction itself. See Matter of Martinez-Serrano, 25 I.
& N. Dec. 151, 153 (BIA 2009) (“[T]he removal ground with which the
respondent is charged requires no conviction.”). An individual is removable if he
“knowingly encourage[d], induce[d], assist[ed], abet[ted], or aid[ed] with illegal
entry, even if he did not personally hire the smuggler and even if he [was] not
present at the point of illegal entry.” Hernandez-Guadarrama v. Ashcroft, 394
F.3d 674, 679 (9th Cir. 2005). The initial complaint in Santana-Gonzalez’s
criminal case charged that “he had made arrangements to smuggle illegal aliens
into the United States for money.” Because the BIA relied solely on Santana-
Gonzales’s conviction to deny his request for relief, it “ha[s] not considered” his
actual conduct. INS v. Orlando Ventura, 537 U.S. 12, 13 (2002). We remand so
that the BIA can “bring its expertise to bear upon the matter, . . . evaluate the
Panel 3
evidence,” and determine in the first instance whether Santana-Gonzalez’s actual
conduct supports removability. Id. at 17.
Each party shall bear its own costs.1
GRANTED IN PART, REMANDED IN PART.
1
Santana-Gonzalez’s motion to take judicial notice is denied as moot.
Panel 4
FILED
Santana-Gonzalez v. Barr, No. 18-70135 NOV 23 2020
MOLLY C. DWYER, CLERK
COLLINS, Circuit Judge, concurring: U.S. COURT OF APPEALS
As the court notes, see Mem. Dispo. at 2, the Government has conceded that,
in light of the factual basis that was given at the time of Santana-Gonzalez’s 2015
guilty plea to a violation of 8 U.S.C. § 1325(a)(2), that conviction is inadequate to
establish that Santana-Gonzalez is removable under § 237(a)(1)(E)(i) of the
Immigration and Nationality Act (“INA”), see 8 U.S.C. § 1227(a)(1)(E)(i). As the
Government explained in its brief, the factual basis for Santana-Gonzalez’s plea
stated only that “he aided and abetted [the aliens] ‘presence in the United States,’
not their entry into the United States” (citation omitted). That factual basis is not
enough, the Government stated, because INA § 237(a)(1)(E)(i) applies here only if
Santana-Gonzalez “encouraged, induced, assisted, abetted, or aided any other alien
to enter or to try to enter the United States in violation of law.” 8 U.S.C.
§ 1227(a)(1)(E)(i) (emphasis added).
The Government’s concession is notable, because for more than 40 years we
have held that the offense described by § 1325(a)(2) “is consummated at the time
an alien gains entry” into the United States without submitting to the required
inspections. United States v. Rincon-Jimenez, 595 F.2d 1192, 1193–94 (9th Cir.
1979) (emphasis added).1 By conceding that the factual basis of Santana-
Gonzalez’s plea was insufficient to establish the connection to an entry that, under
Rincon-Jimenez, is required for a conviction under § 1325(a)(2), the Government
has effectively conceded that the factual basis was insufficient to sustain that guilty
plea, and to that extent the Government has essentially acquiesced to a collateral
challenge to Santana-Gonzalez’s § 1325(a)(2) conviction. In view of the
Government’s concessions, I concur fully in the court’s decision to remand the
matter to allow the agency to consider whether Santana-Gonzalez is deportable
under INA § 237(a)(1)(E)(i) based on the underlying events in question rather than
on the mere fact of his (apparently inadequate) conviction under § 1325(a)(2).
This case thus presents no occasion to address whether a conviction under 8 U.S.C.
§ 1325(a)(2), properly construed, categorically establishes removability under INA
§ 237(a)(1)(E)(i). See Matter of Martinez-Serrano, 25 I. & N. Dec. 151, 154–55
(BIA 2009) (answering that question affirmatively, based on, inter alia, Rincon-
Jimenez and Urzua Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. 2007)).
1
In United States v. Corrales-Vazquez, 931 F.3d 944 (9th Cir. 2019), we
subsequently narrowed § 1325(a)(2) even further, holding that it only applies to an
entry “at a designated port of entry.” Id. at 954; see also id. at 953–54 (noting that
the entry in Rincon-Jimenez would not have qualified under Corrales-Vazquez).
Given that INA § 237(a)(1)(E)(i) applies to any entry, and not merely entries at a
designated port of entry, it is irrelevant for our purposes whether or not Santana-
Gonzalez’s § 1325(a)(2) conviction was consistent with the later announced rule in
Corrales-Vazquez.
2