Case: 08-60469 Document: 00512553377 Page: 1 Date Filed: 03/07/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 08-60469 FILED
March 7, 2014
Lyle W. Cayce
JESUS NATIVIDAD SANTOS-SANCHEZ, Clerk
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before KING, CLEMENT, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
This is a petition for review from a BIA decision dismissing Jesus
Natividad Santos-Sanchez’s (“Santos”) appeal from a removal order. The BIA
determined that Santos’s conviction for aiding and abetting improper entry
under 8 U.S.C. § 1325(a) established his removability pursuant to 8 U.S.C.
§ 1227(a)(1)(E)(i). We conclude that Santos’s conviction documents are
sufficient to establish that his conduct renders him removable under
§ 1227(a)(1)(E)(i) and deny the petition for review.
I. Facts and Procedural Background
Santos, a native and citizen of Mexico, became a lawful permanent
resident of the United States in 2001. In 2003, he pleaded guilty to aiding and
abetting the illegal entry of Alberto Fonseca Rodriguez (“Fonseca”), a Mexican
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No. 08-60469
national, in violation of 8 U.S.C. § 1325(a) and 18 U.S.C. § 2(a). The criminal
complaint set forth that the car Santos was driving was inspected as he
approached a border patrol checkpoint in Laredo, Texas, and that Fonseca was
found in the rear seat. The complaint also provided that investigation revealed
that Santos was called by an unknown person to pick up Fonseca after Fonseca
crossed the Rio Grande River.
The Department of Homeland Security (“DHS”) initiated removal
proceedings against Santos under an alien smuggling provision. See 8 U.S.C.
§ 1227(a)(1)(E)(i). An immigration judge (“IJ”) determined that Santos was not
removable because Santos’s § 1325(a) conviction did not fall under the purview
of § 1227(a)(1)(E)(i) and terminated the proceedings. 1 The BIA, in a decision
rendered April 25, 2006, disagreed and concluded that the conviction
documents established that the transportation in this case constituted aiding
and abetting illegal reentry. The BIA vacated the IJ’s order terminating the
removal proceedings and remanded the case for further proceedings.
On September 12, 2006, Santos filed a petition for a writ of coram nobis
in the district court where he pleaded guilty, seeking to vacate his conviction
on the ground that he had not been properly advised of the immigration
consequences of his guilty plea. While Santos’s petition for coram nobis relief
remained pending, the IJ conducted a merits hearing; Santos attempted to
attack the finality of his conviction by submitting evidence of his efforts to
obtain a writ of coram nobis. 2 The DHS offered documentary and testimonial
1 The IJ appears to have concluded that since violation of § 1325(a) is not an
aggravated felony, Santos was not removable. However, DHS charged Santos with being
removable under 8 U.S.C. § 1227(a)(1)(E)(i), not under the aggravated felony removability
provision, 8 U.S.C. § 1227(a)(2)(A)(iii). Violation of § 1325(a) is not an aggravated felony. In
re Alvarado-Alvino, 22 I. & N. Dec. 718, 720-21 (BIA 1999).
2 The district court subsequently denied the writ of coram nobis, and this court
affirmed. See Santos-Sanchez v. United States, 482 F. App’x 953, 954 (5th Cir. 2012).
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evidence apart from the conviction documents to show that Santos spoke with
Fonseca before Fonseca left Mexico, and at that time arranged to pick up
Fonseca near Laredo after he crossed the border. The IJ determined that both
the conviction documents and the additional evidence regarding Santos’s
conduct established that Santos was removable under § 1227(a)(1)(E)(i).
Santos appealed to the BIA.
In a May 5, 2008 decision, the BIA dismissed Santos’s appeal. The BIA
noted its prior holding that Santos’s “conviction for alien smuggling was
established via [a] categorical match between the grounds of removability and
the terms of the statutes under which he was convicted” and that this holding
remained the law of the case. The BIA held that insofar as Santos remained
convicted of violating § 1325 and § 2, his convictions rendered him removable
under § 1227(a)(1)(E)(i). Santos filed a timely petition for review. 3
II. Discussion
The question we must decide is whether Santos’s conviction under 8
U.S.C. § 1325(a) rendered him removable pursuant to § 1227(a)(1)(E)(i). We
have jurisdiction over this appeal pursuant to 8 U.S.C. § 1252(a)(1). The
government is required to establish the grounds of removability by “clear,
unequivocal, and convincing evidence.” Woodby v. INS, 385 U.S. 276, 286
(1966). We review factual conclusions of the BIA for substantial evidence.
Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996). We review
questions of law de novo, with deference to the BIA’s interpretations of
ambiguous provisions of the INA. Id.
3In November 2009, this court granted Santos’s unopposed Motion to Abate Appeal
pending the determination of his petition for writ of certiorari to the Supreme Court in his
coram nobis proceeding. The Supreme Court denied Santos’s petition on May 28, 2013,
Santos-Sanchez v. United States, 133 S. Ct. 2734 (2013), and this appeal was removed from
abeyance.
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Santos pleaded guilty to aiding or abetting violation of 8 U.S.C. § 1325(a).
Section 1325(a) provides:
Any alien who (1) enters or attempts to enter the United States at
any time or place other than as designated by immigration officers,
or (2) eludes examination or inspection by immigration officers, or
(3) attempts to enter or obtains entry to the United States by a
willfully false or misleading representation or the willful
concealment of a material fact, shall, for the first commission of
any such offense, be fined under Title 18 or imprisoned not more
than 6 months, or both, and, for a subsequent commission of any
such offense, be fined under Title 18, or imprisoned not more than
2 years, or both.
8 U.S.C. § 1325(a). He was sentenced to one year probation and a fine. Santos
was then charged by DHS with being removable under 8 U.S.C. §
1227(a)(1)(E)(i), which provides in pertinent part that: “[a]ny alien who . . .
knowingly has encouraged, induced, assisted, abetted, or aided any other alien
to enter or to try to enter the United States in violation of law is deportable.”
After the BIA’s decision in this case, the BIA concluded that conviction
under § 1325(a) necessarily establishes an alien’s removability pursuant to
§ 1227(a)(1)(E)(i). See Matter of Martinez-Serrano, 25 I. & N. Dec. 151, 153-54
(BIA 2009). Santos disputes that conclusion, arguing that § 1325(a) may be
violated in ways that are unconnected to an illegal entry. However, we find it
unnecessary to reach the question of whether every violation of § 1325(a)
automatically establishes removability under § 1227(a)(1)(E)(i). Despite
Santos’s argument to the contrary, in his case, the BIA did not rely on a finding
that there was a “categorical match” between the statutes to find him
removable. Reading the 2006 and 2008 BIA decisions together, it is clear that
the BIA actually relied on the documents associated with Santos’s § 1325(a)
conviction, including the criminal complaint and judgment of conviction, to find
that Santos’s particular conduct established his removability. We likewise look
to those documents to resolve this appeal. See 8 U.S.C. 1229a(c)(3)(B)
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(providing that an “official record of judgment and conviction” shall constitute
proof of a criminal conviction); Omari v. Gonzales, 419 F.3d 303, 308 (5th Cir.
2005) (providing that for guilty pleas, the record of conviction includes the
charging document).
The BIA found Santos removable because the conviction documents
establish that he “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). The judgment in Santos’s criminal case specifically states
that Santos was charged with and convicted of “knowingly and willfully aid
[sic] and abet [sic] the illegal entry of Mexican alien, Alberto Fonseca
Rodriguez, by attempting to transport him to further his entry into the United
States, in violation of Title 8 and 18, United States Code, Sections 1325 and
2(a), as charged by Criminal Complaint.” Santos heavily relies on his
argument that the conviction documents do not state what subsection of §
1325(a) he was charged with violating, and thus that he could have been
convicted of merely aiding Fonseca to elude examination or inspection in a
manner unconnected to entry. However, the conviction documents clearly
describe aiding and abetting an illegal entry. Santos makes a similar
argument that the conviction documents establish that, at most, he was
convicted of mere transporting. However, the fact that the transporting was
sufficiently connected to the entry is also established by the conviction itself,
for “aid[ing] and abet[ting] illegal entry . . . by attempting to transport
[Fonseca] to further his entry into the United States.” See Matter of I- M-, 7 I.
& N. Dec. 389, 391 (BIA 1957) (explaining that transporting can be aiding
entry where aliens were picked up after entry with a previous design); see also
United States v. Flores-Peraza, 58 F.3d 164, 168 (5th Cir. 1995) (noting that
§ 1325(a) “requires the government to prove how the entry was effected”).
Santos’s arguments are essentially collateral attacks on his prior conviction,
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which are not permitted in an appeal of a removal order. See Brown v. INS,
856 F.2d 728, 731 (5th Cir. 1988); see also Zinnanti v. INS, 651 F.2d 420, 421
(5th Cir. 1981).
The BIA’s finding that the conviction documents associated with Santos’s
§ 1325(a) conviction established Santos’s removability pursuant to
§ 1227(a)(1)(E)(i) is supported by substantial evidence.
III. Conclusion
For the foregoing reasons, the petition for review is DENIED.
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