FILED
NOT FOR PUBLICATION APR 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFONSO RAMIREZ-HERRERA, ) No. 10-72498
)
Petitioner, ) Agency No. A078-119-847
)
v. ) MEMORANDUM*
)
ERIC H. HOLDER, Jr., Attorney )
General, )
)
Respondent. )
)
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 7, 2014**
Pasadena, California
Before: FERNANDEZ, N.R. SMITH, and MURGUIA, Circuit Judges.
Alfonso Ramirez-Herrera, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ denial of his motion to remand to the
Immigration Judge for further proceedings. We deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
On May 16, 2007, the IJ determined that the government had carried its
burden of proving1 that Ramirez, a legal permanent resident, was inadmissible
because he had “engaged in illegal activity” after he departed the United States;2
that is, he engaged in alien smuggling.3 On March 9, 2009, the BIA agreed, but in
so doing it erroneously applied a standard that placed the burden of persuasion on
Ramirez. Due to that error, on the government’s motion, we remanded the case to
the BIA so that the correct standard could be applied. On July 16, 2010, the BIA,
once again, agreed with the IJ and, in so doing, correctly placed the burden of
persuasion on the government. It saw no reason to remand to the IJ, who had
already applied the correct standard, nor do we. In short, the BIA’s decision to
deny Ramirez’s motion to remand was not an abuse of discretion. See Movsisian
v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005); see also Shin v. Mukasey, 547
F.3d 1019, 1025 (9th Cir. 2008). Nor has Ramirez shown that the proceedings
were fundamentally unfair. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.
2000).
1
That placement of the burden was correct. See Santiago-Rodriguez v.
Holder, 657 F.3d 820, 829 (9th Cir. 2011); Hernandez-Guadarrama v. Ashcroft,
394 F.3d 674, 680 (9th Cir. 2005).
2
8 U.S.C. § 1101(a)(13)(C)(iii).
3
See Urzua Covarrubias v. Gonzales, 487 F.3d 742, 746, 748 (9th Cir. 2007).
2
Ramirez also suggests that the evidence was insufficient to support a finding
that he had engaged in alien smuggling activities after he departed the United
States. We disagree. On the record before us, we are unable to say that the
evidence compels a conclusion contrary to that reached by the BIA. See INS v.
Elias-Zacarias, 502 U.S. 478, 481 & n.1, 483–84, 112 S. Ct. 812, 815 & n.1, 817,
117 L. Ed. 2d 38 (1992); Gonzaga-Ortega v. Holder, 736 F.3d 795, 800–01 (9th
Cir. 2013). On the contrary, a reasonable fact-finder could determine that “clear,
unequivocal, and convincing evidence”4 supported the conclusion that Ramirez
engaged in those activities. Among other things, Ramirez’s untruthful statements
to Customs and Border Patrol officers lend strong support to the BIA’s
conclusions. See Li v. Holder, 738 F.3d 1160, 1163 (9th Cir. 2013); Moran v.
Ashcroft, 395 F.3d 1089, 1091–92 (9th Cir. 2005), overruled on other grounds by
Sanchez v. Holder, 560 F.3d 1028, 1030–31, 1034 (9th Cir. 2009) (en banc); see
also Abufayad v. Holder, 632 F.3d 623, 631 (9th Cir. 2011).
Petition DENIED.
4
Santiago-Rodriguez, 657 F.3d at 829 (internal quotation marks omitted);
Hernandez-Guadarrama, 394 F.3d at 679 (internal quotation marks omitted).
3