Gonzalez-Martinez v. Immigration Naturalization & Service

MEMORANDUM^*

The Board of Immigration Appeals (“BIA”) affirmed the Immigration Judge’s (“IJ”) decision that Dioscoro Gonzalez-Martinez (“Gonzalez”) and Yolanda Salas De Gonzalez (“Salas”) (collectively “Petitioners”), husband and wife, shall be treated as arriving aliens under 8 U.S.C. § 1101(a)(13)(C)(iii) for engaging in alien-smuggling after departing the United States. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we affirm because we find substantial evidence in the record supports the BIA’s holding.

1. Standard of Review

When the BIA conducts an independent review of the record, this court reviews the BIA’s decision and not that of the IJ. Hernandez-Montiel v. INS, 225 F.3d 1084, 1090 (9th Cir.2000). This court reviews factual findings, such as whether an alien engaged in alien-smuggling, under the deferential “substantial evidence” standard and upholds the findings “unless the evidence compels a contrary conclusion.” Id. (quoting Prasad v. INS, 101 F.3d 614, 616-17 (9th Cir.1996)). This court also reviews adverse credibility determinations under the substantial evidence standard. Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir.2000) (citations omitted).

2. The BIA’s Holding is Supported by Substantial Evidence in the Record

The record contains substantial evidence to support the BIA’s holding. For example, the record contains Immigration Inspector Fuentes’s testimony, found by the IJ to be credible, that Petitioners admitted at the port of entry they knew the children did not have proper documentation. The record also contains details of Petitioners’ previous alien-smuggling activity at the same port of entry two years before the current incident, for which they were granted a waiver of deportability. Finally, the record contains Petitioners’ highly implausible testimony that Salas met a relative in a Tijuana pharmacy parking lot on a trip back to the United States while Gonzalez was in a restroom-by happenstance. The relative just happened to have with him three children who needed to return to the United States and, conveniently, the children were carrying California birth certificates (two of which were fraudulent). Salas, of course, agreed to take the children to the United States without consulting her husband.

Substantial evidence in the record also supports the BIA’s adverse credibility determination because the stories told by the Petitioners at the port of entry were materially inconsistent with their testimony at the removal hearings. Under the totality of these telling circumstances, whether or not Petitioners denied telling Inspector Fuentes that they were aware of the children’s immigration status is patently immaterial.

PETITION DENIED.

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.