Susana Morales Bribiesca v. William P. Barr

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0348p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
SUSANA MIREYA MORALES BRIBIESCA,
│
Petitioner, │
> No. 18-3948
│
v. │
│
WILLIAM P. BARR, Attorney General, │
Respondent. │
┘
Petition for Review from the Board of Immigration Appeals;
No. A 047 770 293.
Decided and Filed: October 30, 2020
Before: GIBBONS, KETHLEDGE, and BUSH, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Blake P. Somers, BLAKE P. SOMERS LLC, Cincinnati, Ohio, for Petitioner.
Jesse D. Lorenz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
KETHLEDGE, J., delivered the opinion of the court in which BUSH, J., joined.
GIBBONS, J. (pp. 9–15), delivered a separate dissenting opinion.
_________________
OPINION
_________________
KETHLEDGE, Circuit Judge. In March 2007, at a border crossing near Tijuana, Mexico,
Susana Mireya Morales Bribiesca (“Morales”) presented a fraudulent birth certificate to a United
States Customs and Border Protection Officer on behalf of her cousin Jorge, who lacked
documentation to enter the country legally. After a removal hearing at which numerous
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witnesses testified, an immigration judge found that Morales—who was then a lawful permanent
resident of the United States—had tried to smuggle Jorge into the United States and that she was
therefore inadmissible under the Immigration Act. The Board of Immigration Appeals agreed
and entered a final order of removal. Morales now argues on various grounds that insufficient
evidence supported the immigration judge’s finding that she engaged in alien smuggling.
We reject her arguments and deny the petition.
I.
A.
Morales was born in Guadalajara, Mexico. She became a lawful permanent resident of
the United States in 2001, and settled in Ohio. In November 2006 she travelled by herself back
to Guadalajara and stayed there more than three months, visiting relatives. She left Guadalajara
in early March 2007, but did not travel directly back to the United States. Instead she flew to
Tijuana because, she said, she planned to visit her aunt in Los Angeles.
Morales testified as follows regarding the relevant events after her arrival in Tijuana and
before she tried to enter the United States on March 7, 2007. Upon arriving in Tijuana, Morales
checked into a hotel. The next day she called her cousin, Guadalupe Madrigal Morales, a U.S.
citizen who was living in California (apparently in Los Angeles). Although Morales purportedly
had not made any arrangements with Guadalupe “ahead of time to drive back to the United
States[,]” she asked Guadalupe to drive down to Tijuana and then to drive her back to Los
Angeles. Guadalupe agreed and showed up at the hotel only two hours later with her boyfriend,
Mauricio Ruiz, Jr., who was himself a U.S. citizen and a Los Angeles police officer. When
Guadalupe arrived, Morales was accompanied by four other relatives: her cousin Alejandro
Roscoe Morales; another cousin, Alisa Navarro Morales; and Alisa’s two sons, Brandon and
Jorge, whom Morales had met in Guadalajara a few months before. All four of those relatives
had likewise traveled from Guadalajara; and all of them, Morales said, had stayed with her at the
hotel the night before.
Morales agreed with Alisa that her youngest son, Jorge, then age five or so, would ride
with Morales, Ruiz, and Guadalupe to Los Angeles. Alisa gave Morales an envelope with a birth
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certificate inside. According to Morales, she never looked inside the envelope before reaching
the U.S. border; nor did it occur to her, she said later, that Jorge would need more than a
(presumably Mexican) birth certificate to enter the United States.
* * *
Guadalupe and her three passengers arrived at the San Ysidro Port of Entry around
8:46 p.m. that same evening. Guadalupe was driving a 2004 Toyota Corolla with California
plates. Ruiz sat in the front seat; Morales sat directly behind Guadalupe; and Jorge was lying
face-down on a pillow near Morales. Customs and Border Protection Officer Mario Balite
performed the group’s primary inspection. According to his report—written “[r]ight after the
incident” at issue here—Balite first determined the identity and citizenship of the three adults in
the car and then asked Guadalupe about her relationship with the boy, who still lay face down in
the back. Guadalupe said the boy was her cousin. Balite asked for the boy’s identification;
Guadalupe then motioned to Morales, who “reached for an envelope on her right side and took a
birth certificate out of the envelope and presented it to” Balite. The birth certificate had been
issued in California, to a then (in 2007) five-year-old boy named Jonathan Benito Clemente.
Balite asked Guadalupe where the boy’s mother was; Guadalupe said, “in L.A.” Balite asked
whether the group had “parental consent in the form of a letter for the boy to travel with them to
Mexico”; Ruiz replied, “We didn’t know we ha[d] to.” Balite asked what the group had been
doing in Mexico; Guadalupe responded, “Just came down to visit.” At that point, Balite sent the
group to secondary inspection.
There the group encountered Officer Gustavo Banuelos, who was fluent in both English
and Spanish. Banuelos distinctly remembered this encounter, he testified later, because a Los
Angeles police officer was in the car—an unusual circumstance, rendered all the more so
because Banuelos felt that he had been lied to throughout. According to Banuelos’s report and
testimony, the group had been referred to secondary inspection “to perform further checks on a
possible minor document false claim to U.S. citizenship.” Specifically, Banuelos testified, the
referral came because Morales had “insist[ed] that the birth certificate belonged to the child[.]”
No. 18-3948 Morales Bribiesca v. Barr Page 4
Banuelos began his inspection by asking Guadalupe, the driver, about her relationship
with “Jonathan”; she said that she was the boy’s cousin and that the group had traveled from Los
Angeles to Tijuana to “visit a relative.” Banuelos “specifically asked all of them, did you guys
come from L.A. together. And they said, yes.” Banuelos asked if they had a phone number for
either of the boy’s parents, but they said they did not. Banuelos later testified that “I kept going
back and forth with all of them . . . I couldn’t get a straight answer as far as where the parents are
at[.]”
All this time Jorge continued to lie in the back seat, as “if he was sleeping[.]” Banuelos
asked the boy to step out of the car to talk. He noticed that, though “the kid supposedly was
raised in L.A., he spoke no English.” Banuelos also thought that Jorge’s responses to standard
questions sounded “rehearsed.” To take Jorge off-script, Banuelos asked, “what do they call you
in Mexico?” Jorge responded, “Jorge Navarro.” Banuelos said, “is that your name over there?”
Jorge said yes. Banuelos then told the adults that Jorge “had admitted to his true identity,” and
directed the group to the “port enforcement team” for further questioning. Another officer, Jorge
Camarillo, later completed an “I-213” form in which he stated that, during questioning, Morales
had admitted, in considerable detail, that she had brought Jorge with her from Tijuana, obtained a
fraudulent birth certificate for him, and attempted to smuggle him into the United States.
B.
The next day, the Department of Homeland Security served Morales with a Notice to
Appear in which it charged her with being “ineligible to be admitted to the United States” for
having “knowingly encouraged, induced, assisted, abetted, or aided Jorge Miranda Navarro, an
undocumented alien, to enter or try to enter the United States in violation of law.” See 8 U.S.C.
§ 1182(a)(6)(E)(i). At a removal hearing in September 2007, Morales admitted all the factual
allegations in the Notice to Appear, and conceded that she was removable. She eventually
withdrew that concession, however, after determining that she was not eligible for “cancellation
of removal.” See id. § 1229b(a).
In June 2011, an immigration judge held a hearing regarding Morales’s potential
removal. In a detailed written opinion issued that September, the immigration judge found that
No. 18-3948 Morales Bribiesca v. Barr Page 5
the officers’ testimony was credible, that Morales’s testimony was not, and that, by “clear and
convincing evidence,” Morales was removable on the charge of alien smuggling. The Board of
Immigration Appeals dismissed Morales’s appeal, and she petitioned for review in this court.
Meanwhile, in an intervening precedent, our court held that where, as here, “the
government seeks to remove a lawful permanent resident” on one of the admissibility grounds
set forth in 8 U.S.C. § 1182(a), “it must prove by clear, unequivocal, and convincing evidence”
that the alien is inadmissible. Ward v. Holder, 733 F.3d 601, 604, 608 (6th Cir. 2013). We
therefore remanded Morales’s case for a determination of her removability under that standard
(as opposed to the “clear and convincing” one).
On remand, the immigration judge found Morales removable under that standard, again
in a detailed written opinion; and the Board again dismissed her appeal. This petition followed.
II.
When as here the Board adopts and adds to the immigration judge’s decision, we review
both the immigration judge’s decision and the Board’s own opinion. See Hachem v. Holder, 656
F.3d 430, 434 (6th Cir. 2011). In doing so we review the agency’s legal conclusions de novo and
its factual findings—including any credibility determinations—under the substantial-evidence
standard. Slyusar v. Holder, 740 F.3d 1068, 1072 (6th Cir. 2014). Under that standard, those
findings are “conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B); Bi Qinq Zheng v. Lynch, 819 F.3d 287, 294 (6th Cir.
2016).
A.
As an initial matter, Morales argues that the immigration judge erred in determining that
the officers’ testimony was credible. The judge explained that, “[u]pon consideration of all the
evidence,” he found Officers Balite and Banuelos “to be credible. Their testimony was
plausible, internally consistent, and consistent with each other’s testimony and the written
reports. They were responsive to questions and answered with candor.” We have no quarrel
No. 18-3948 Morales Bribiesca v. Barr Page 6
with that reasoning, which tracks the rather common-sense factors recited in the REAL ID Act.
See 8 U.S.C. § 1229a(c)(4)(C).
Morales counters that Banuelos’s testimony was inconsistent with the I-213 form and
Banuelos’s officer report. The I-213 form said that, at secondary inspection, Morales had
admitted that Jorge was undocumented; whereas Banuelos’s report said that Guadalupe had
made that admission after Jorge revealed his identity. But that discrepancy reveals no
inconsistency on Banuelos’s part, since he did not fill out the I-213. Nor, contrary to Morales’s
suggestion, does anything in Banuelos’s report conflict with his testimony that the reason why
the group was sent to secondary inspection was that Morales “insist[ed] that the birth certificate
belonged to the child[.]”
Morales also contends that Balite and Banuelos remembered too little of their inspections
for their testimony to be credible. But anyone who reads Banuelos’s testimony in its entirety is
likely to think otherwise: his testimony provides a sensible reason why he remembered the
encounter, walks through the encounter in considerable detail, and rings true throughout. That
he thought the boy might have been “7 or 8” years old, when the birth certificate said he was 5,
undermines nothing in his testimony. Balite, for his part, candidly stated that he had little
recollection about a primary inspection that had occurred more than three years before. But that
is why officers write reports; and Balite’s testimony was entirely consistent with his report,
which he wrote “right after” the encounter. The record here amply supports the immigration
judge’s determination that these officers were credible.
B.
Morales argues that the government did not prove by “clear, unequivocal, and convincing
evidence” that she engaged in alien smuggling. That standard approximates the criminal
standard of proof beyond a reasonable doubt. See Ward, 733 F.3d at 605. Yet we review the
agency’s determination only for substantial evidence, which means we ask whether “any
reasonable adjudicator would be compelled to conclude” that the government did not meet this
standard of proof. 8 U.S.C. § 1252(b)(4)(B). That requirement—that a reasonable adjudicator
would be compelled to disagree with the agency’s finding—plainly implies that we must make
No. 18-3948 Morales Bribiesca v. Barr Page 7
every reasonable inference in favor of the agency’s finding of fact. In that respect too, therefore,
our review of the agency’s finding of an alien’s culpability approximates our review of the
evidence supporting a guilty verdict in a criminal case. See United States v. Cox, 871 F.3d 479,
490 (6th Cir. 2017).
To commit alien smuggling, a person must engage in “an affirmative and illicit act of
assistance in shepherding someone across the border,” knowing that the alien cannot enter the
country legally. Tapucu v. Gonzales, 399 F.3d 736, 740 (6th Cir. 2005). Here, the officers’
testimony and reports showed that Morales handed to Officer Balite a birth certificate that was
fraudulent as to Jorge and that she “insist[ed]” that it belonged to him. Those actions themselves
amount to “an affirmative and illicit act of assistance” in violation of 8 U.S.C. § 1182(a)(6)(E)(i).
That leaves the question whether a reasonable factfinder would be compelled to find that
Morales’s actions were an honest mistake. The undisputed facts here include that Morales
admitted that Jorge was her cousin, that she had met him in Guadalajara three months before,
that he had stayed with her at a hotel in Tijuana the very night before, and that Jorge’s mother
had put the boy in her care during a journey that included a United States border crossing.
A reasonable factfinder could infer from these circumstances that she at least knew the boy’s
name. Moreover, based on those same circumstances, one could infer that Morales had at least
looked at the name on the birth certificate before handing it to a United States Customs and
Border Protection Officer. That Morales removed the certificate from its envelope before
handing it to Officer Balite (as opposed to handing him a sealed envelope) tends to confirm that
she had looked at it before. Yet Morales insisted to Balite that a birth certificate with a different
boy’s name belonged to Jorge. Based on these facts, a reasonable adjudicator could find that
Morales acted knowingly when she tried to assist Jorge’s entry into the United States.
That conclusion is only strengthened by the car-wide effort to deceive Officer Banuelos.
All the adults—including Morales—answered “yes” when Officer Banuelos “specifically asked
all of them, did you guys come from L.A. together.” That answer, as Banuelos testified later,
was simply a “lie.” And when Guadalupe falsely told Banuelos that the boy’s mother was “here
in the States[,]” Morales said nothing—even though the group had left the mother in Tijuana just
hours before. Moreover, Jorge himself obscured his face and gave coached answers to Banuelos,
No. 18-3948 Morales Bribiesca v. Barr Page 8
which means that someone had coached him. And given that Morales had first called Guadalupe
about the border crossing only hours before, one can infer that Morales either coached Jorge or
was aware that he had been coached. In sum, the officers’ testimony and report would easily
support affirmance of a guilty verdict in a criminal case; and we have no reason to reach an
opposite outcome here.
That conclusion renders Morales’s remaining arguments largely moot. First, Morales
complains that, on remand, the immigration judge and the Board simply applied the standard in
Ward without adding much new analysis to their opinions. But the immigration judge’s prior
opinion had already provided extensive written analysis of the relevant facts; and on this record
the judge was within his rights to find that the same analysis supported the same outcome under
the standard set forth in Ward. The same is true of the Board’s opinion on remand.
Second, Morales argues that the I-213 form was unreliable because, she says, the officers
were coercive when they questioned her. As shown above, however, the officers’ testimony and
reports were sufficient to support the agency’s finding without consideration of the I-213. Nor
was it necessary for the government to prove Morales’s knowledge by means of a confession or
other direct evidence; instead, as in criminal cases, circumstantial proof of the alien’s knowledge
or intent can be enough. Cf. United States v. Gandy, 926 F.3d 248, 257–58 (6th Cir. 2019).
Third, Morales argues that the immigration judge misallocated the burden of proof to her
by analyzing her credibility. An immigration judge cannot use an adverse credibility
determination to assess “whether the government [] met its affirmative burden.” Hassan v.
Holder, 604 F.3d 915, 927 (6th Cir. 2010). But the immigration judge did not do that here: the
judge analyzed Morales’s credibility only to determine the I-213 form’s reliability (which is
immaterial here) and to assess Morales’s “ability to rebut the government’s case.” Id. And
otherwise we note that Morales does not even challenge the immigration judge’s finding that her
testimony was not credible.
* * *
Morales’s petition for review is denied.
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_________________
DISSENT
_________________
JULIA S. GIBBONS, Circuit Judge, dissenting. In this appeal, we are asked to decide
whether the Board of Immigration Appeals and the Immigration Judge’s determination that
Susana Mireya Morales Bribiesca was inadmissible was supported by “reasonable, substantial,
and probative evidence on the record considered as a whole.” Sylla v. INS, 388 F.3d 924, 925
(6th Cir. 2004). The BIA and IJ found that she was inadmissible because she knowingly
encouraged, induced, assisted, abetted, or aided an undocumented alien, Jorge Miranda Navarro,
to enter the United States. The majority agrees. I dissent because I believe that the IJ
erroneously admitted the I-213 form, and because without that form the evidence in the record
does not support the conclusion that Morales took an affirmative step to aid Jorge Navarro in
entering the country.
I.
The majority holds that the officers’ testimony and reports alone were sufficient to
support the BIA’s finding that Morales assisted Jorge Miranda Navarro to enter the country.
I disagree, both with the majority opinion’s result and its analytical framework. In my view, the
logical analysis for this case first examines the admissibility of the Form I-213, the primary
evidence against Morales. In Koulibaly v. Mukasey, we adopted the Ninth Circuit’s Singh v.
Gonzales, 403 F.3d 1081, 1087 (9th Cir. 2005), framework to evaluate the reliability of forms of
this nature. Koulibaly v. Mukasey, 541 F.3d 613, 620 (6th Cir. 2008). Singh analyzed an
Assessment to Refer, “a document prepared by an asylum officer who ‘meets informally with the
applicant, considers the documents presented with the asylum application, then decides whether
asylum should be granted or whether the matter should be referred to an [immigration judge] for
formal adjudication.’” Id. at 620 (quoting Golker v. Mukasey, 273 F. App’x 585, 586 (9th Cir.
2008)). In Singh, the Ninth Circuit found the document unreliable because it
[did] not contain any record of the questions and answers at the asylum interview,
or other detailed, contemporary, chronological notes of the interview, but only a
short, conclusory summary—essentially, an opinion. There [was] no transcript of
No. 18-3948 Morales Bribiesca v. Barr Page 10
the interview. There [was] no indication of the language of the interview or of the
administration of an oath before it took place. The asylum officer did not testify
at the removal hearing.
403 F.3d at 1089–90.
We utilized the Singh framework to assess the reliability of an I-213 Form in Pagoada-
Galeas v. Lynch, 659 F. App’x 849, 854 (6th Cir. 2016). In Pagoada-Galeas we found that the
I-213 Form did not contain most of the indicia of reliability: “[T]here is no indication an oath
was administered or an interpreter was present; the border patrol officer did not testify; and there
is no transcript.” Id. at 856. However, we found the immigration judge’s reliance on the I-213
Form permissible because the asylum applicant “testified to the accuracy of some of the
statements attributed to him on the I-213 Form . . . temper[ing] any suggestion that the
statements recorded on the Form [were] inaccurate, or were not made by [him].” Id.
It is clear that, under the Singh framework, the I-213 here is unreliable. The I-213 Form
lacks all six of the indicia of reliability. It does not contain any record of the officers’ questions
or Morales’s answers. The document entitled “Interview Notes” (crossed out) only includes
cursory and vague notes and does not identify any questions asked or answers given. The
document is not detailed or comprehensive and does not provide chronological notes—or even a
start and stop time—of the interview. There is no video recording or transcript in the record,
even though the I-213 Form explicitly states that the interview was video recorded. And there is
no indication that Morales took an oath prior to the interview.
There is also no indication in the document whether either of the interviewing officers
spoke Spanish, if there was a translator present, or what language the interview was conducted
in. Morales speaks Spanish and required a translator for the immigration hearings. If neither of
the interviewing officers spoke Spanish and there was not an interpreter, then there is further
reason to doubt the reliability of the I-213 Form. See, e.g., Pouhova v. Holder, 726 F.3d 1007,
1014 (7th Cir. 2013) (finding statement inadmissible when interview was conducted in English
and there was no evidence about the alien’s English skills nor an opportunity to cross-examine
the interviewing officer about the alien’s English abilities); Balogun v. Ashcroft, 374 F.3d 492,
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504–05 (7th Cir. 2004) (finding language barriers a factor affecting reliability of an interview
transcript).
Finally, neither interviewing officer testified at the hearing. Gonzales was listed as a
possible witness but was not called by the government. Camarillo was not listed as a potential
witness because, as part of an agreement to plead guilty to a charge of unauthorized use of a
government computer, he resigned his employment as a CBP officer. Here, all of the Singh
factors adopted by the court in Koulibaly weigh in favor of a determination that the I-213 Form
is unreliable.
The majority does not apply the Singh framework, and instead holds that even without
the I-213 form there was sufficient evidence to conclude that Morales was inadmissible.
II.
Having determined the I-213 Form is unreliable, I would next hold that the government’s
remaining evidence failed to satisfy its burden of proof under Ward v. Holder, 733 F.3d 601,
602–03 (6th Cir. 2013), to show that Morales “knowingly [] encouraged, induced, assisted,
abetted, or aided [Jorge] to enter or to try to enter the United States in violation of law.”
8 U.S.C. § 1182(a)(6)(E)(i). I disagree with the majority’s analysis that the two officers’
testimony and reports alone were sufficient to show that Morales took an affirmative step to
helping Jorge enter the country. The majority relies exclusively on the evidence of Balite and
Banuelos, whose interaction with Morales was minimal. Essentially, both officers testified to
interaction and responses from Guadalupe, Mauricio, and Jorge. The officer who did interact
with Morales, Jorge Camarillo, (also the author of the I-213) never testified because he left CBP
after a criminal conviction.
The majority correctly notes that the BIA’s findings of facts are given deference.
Karimijanaki v. Holder, 579 F.3d 710, 714 (6th Cir. 2009). It is also true that, even with this
deference, a “deportability order is valid only if ‘it is based upon reasonable, substantial, and
probative evidence.’” Id. (quoting 8 U.S.C. § 1229a(c)(3)(A)). Further, the deference that this
court gives to the BIA does not reduce the burden on the government. The government had to
prove by “clear, unequivocal, and convincing evidence” that Morales knowingly assisted or
No. 18-3948 Morales Bribiesca v. Barr Page 12
aided Jorge, a Mexican citizen, to enter the county in violation of law to satisfy its burden of
proof. Ward v. Holder, 733 F.3d 601, 602−03, 608 (6th Cir. 2013). In noting the difference
between the “clear and convincing” standard and the “clear, unequivocal, and convincing”
standard, Ward stated that the latter “is a more demanding degree of proof than the ‘clear and
convincing’ standard.” Id. at 605. Ward further concluded that the BIA “recognized that
removing ‘unequivocal’ creates a lesser degree of proof: ‘[t]he clear and convincing standard
imposes a lower burden than the clear, unequivocal, and convincing standard . . . because it does
not require that the evidence be unequivocal or of such a quality as to dispel all doubt.’” Id. at
605–06 (alteration in the original) (quoting Matter of Patel, 19 I. & N. Dec. 774, 783 (BIA
1988)). Under this standard of review, combined with the government’s burden, therefore, we
ask whether “any reasonable adjudicator would be compelled to conclude” that the government
failed to satisfy its burden to prove by clear and convincing evidence that Morales violated the
law. 8 U.S.C. 1252(b)(4)(B).
This court and our sister circuits require “an affirmative and illicit act of assistance in
shepherding someone across the border” into the United States to satisfy the anti-smuggling
provision. Tapucu v. Gonzales, 399 F.3d 736, 740 (6th Cir. 2005); see also Dimova v. Holder,
783 F.3d 30, 40–41 (1st Cir. 2015); Chambers v. Office of Chief Counsel, 494 F.3d 274, 279–80
(2d Cir. 2007); Altamirano v. Gonzales, 427 F.3d 586, 592–93 (9th Cir. 2005). Here, Morales
committed no such affirmative act. The majority holds that merely handing an officer paperwork
that ends up being forged or illicit, without any showing of knowledge or intent, is an affirmative
act. This is not correct. Tapucu, 399 F.3d at 739, 741−42 (mere presence when an unauthorized
alien seeks admission into the United States is insufficient under the statute).
The majority rests its decision on the CBP officers’ testimony and Officer Reports. The
testimony and reports fail to show that Morales made affirmative acts or statements that would
prove that Morales “knowingly” assisted or aided Jorge. Even assuming the credibility of the
officers’ testimony and reliability of the Officer Reports, the evidence is not “of such a quality to
dispel all doubt.” Id. at 605–06. The government has not met its burden to prove by “clear,
unequivocal, and convincing” evidence that Morales “knowingly” assisted or aided Jorge to try
to enter the United States in violation of law.
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First, with the primary inspection at the San Ysidro port of entry, Balite’s Officer Report
and testimony do not show that Morales provided an “affirmative and illicit act of assistance.”
Rather, the evidence shows that Morales was present when Jorge sought admission into the
United States. Tapucu, 399 F.3d 739–42. Balite’s Officer Report stated that when the vehicle
approached Balite’s lane for entry he asked Guadalupe for the boy’s identification and
Guadalupe motioned to Morales who reached for the envelope and presented it. Nothing in
Balite’s report or testimony shows that Morales engaged in an affirmative act of assistance or
responded to Balite’s questions in a manner to deceive him. Moreover, the act of passing
identifying documentation to Guadalupe to present to Balite does not prove any knowledge by
Morales as to Jorge’s status or the document’s lack of authenticity. See, e.g., Aguilar Gonzales
v. Mukasey, 534 F.3d 1204, 1209 (9th Cir. 2008). While the majority asserts that Morales
“insisted to Balite that a birth certificate with a different boy’s name belonged to Jorge,” that
conclusion is not supported by the evidence. Not only does Balite himself have little recollection
of the encounter, but his report indicates that he asked Guadalupe for the identification, who then
motioned for Morales to present it. This argument is only strengthened by the majority’s
analysis of Aban’s and Banuelos’s interactions with the persons in the vehicle during the
secondary inspection. While the majority refers to the “car-wide effort to deceive” Banuelos, it
correctly notes that it was Guadalupe who told him that Jorge’s mother was in the United States,
not Morales. Aban’s Officer Report also details that it was Guadalupe who “presented a
California birth certificate for a minor sleeping inside the vehicle.” (AR 541, Officer Aban
Report.)
Second, the government presented Aban’s and Banuelos’s Officer Reports as well as
Banuelos’s testimony to prove what occurred at the secondary inspection.1 The Reports and
testimony present conflicting descriptions of the events in question and are insufficient to satisfy
the government’s burden to provide evidence “of such as quality to dispel all doubt.” Ward, 733
F.3d at 605–06.
1Knox’s testimony did not provide any additional information as he was not on site when CBP stopped the
vehicle, and he testified only about the port enforcement administrative decision making and processing.
No. 18-3948 Morales Bribiesca v. Barr Page 14
Banuelos’s Officer Report provides information about the vehicle’s passengers and states
that he questioned Guadalupe about her relationship with Jorge, and Mauricio responded that
“they were all adults and they could handle an emergency without [Jorge’s] parents.” (AR 542,
Officer Banuelos’s Report.) The Report then explains that Banuelos asked Jorge to step out of
the car, asked him various questions, including if he had another name in Mexico. After
discovering that he went by Jorge in Mexico, Banuelos “approached the car and told the
occupants [Jorge] had admitted to his true identity.” (Id.) Guadalupe “tried to deny it but finally
acknowledge[d] his true identity.” (Id.) Notably missing from this Report are any mention of
actions or statements by Morales. Instead, the Report only indicates that Guadalupe and
Mauricio responded to Banuelos’s questions and Guadalupe acknowledged Jorge’s status.
At Morales’s immigration hearing, Banuelos confirmed that he questioned Guadalupe
and Mauricio about whether they had parental consent to travel with Jorge and whether they had
come together from Los Angeles. He also confirmed that he took Jorge out of the car, asked
basic identifying questions, and asked if Jorge had a different name in Mexico. After
discovering Jorge’s identity, he turned the passengers over to the port enforcement team for
processing. When asked why his Officer Report did not mention Morales and instead provided
that Guadalupe acknowledged Jorge’s status, Banuelos replied that “[he] d[id]n’t know” and did
not “remember.” (AR 338–39, Immigration Ct. Tr. June 3, 2011.)
The government’s evidence regarding the secondary inspection fails to show that Morales
engaged in an affirmative act to aid or assist Jorge to enter the United States in violation of law.
The evidence shows that Guadalupe and Mauricio responded to Banuelos’s questions and that
Guadalupe acknowledged Jorge’s identity and status as a non-citizen. Neither the Officer
Reports nor Banuelos’s testimony show that Morales engaged in “an affirmative and illicit act of
assistance.” Tapucu, 399 F.3d at 740. Just as we could not conclude in Tapucu that the driver of
a vehicle that approached the border engaged in an affirmative act to “smuggle” an alien
passenger in violation of law, id. at 743, we cannot conclude that Morales engaged in affirmative
act to smuggle Jorge by being a passenger in the vehicle and handing the birth certificate to
Guadalupe to present to of the CBP officers. While the majority speculates about inferences that
a factfinder could make when presented with the evidence that Morales met Jorge twice and she
No. 18-3948 Morales Bribiesca v. Barr Page 15
was in charge of the boy at the time that they were detained, I would hold the evidence presented
by the government does not show Morales had knowledge of Jorge’s lack of citizenship status.
Further, there is no evidence that Morales had seen the birth certificate before handing it over to
the Customs and Border Protection Officer, indeed it was still in the envelope when she did so.
For the reasons stated above, I would hold that the conflicting evidence presented by the
government cannot satisfy the “demanding degree of proof” sufficient to “dispel all doubt” as
required by Ward. 733 F.3d at 605–06.