Altamirano v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

EMMA ALTAMIRANO, 
Petitioner, No. 03-70737
v.
 Agency No.
A77-411-293
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued December 9, 2004
Submitted October 31, 2005
Pasadena, California

Filed October 31, 2005

Before: Betty B. Fletcher, Pamela Ann Rymer, and
Richard A. Paez, Circuit Judges.

Opinion by Judge Paez;
Partial Concurrence and Partial Dissent by Judge Rymer

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).

14843
14846 ALTAMIRANO v. GONZALES

COUNSEL

Kevin Bove, Esq., Escondido, California, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division,
Ernesto H. Molina, Jr., Senior Litigation Counsel, M. Jocelyn
Lopez Wright, Senior Litigation Counsel, Office of Immigra-
tion Litigation, U.S. Department of Justice, Washington, DC,
for the respondent.
 ALTAMIRANO v. GONZALES 14847
OPINION

PAEZ, Circuit Judge:

Emma Altamirano (“Altamirano”) petitions for review of
the Board of Immigration Appeals’ (“BIA”) order affirming,
in a streamlined decision, the Immigration Judge’s (“IJ”)
decision denying Altamirano’s motion to terminate removal
proceedings against her and finding that Altamirano is inad-
missable because she engaged in alien smuggling in violation
of § 212(a)(6)(E)(i) of the Immigration and Naturalization Act
(“INA”), 8 U.S.C. § 1182(a)(6)(E)(i) (Supp. V 1999).1 The
INS sought to remove Altamirano when she attempted to
enter the United States in a vehicle in which an illegal alien
was hiding in the trunk. Altamirano does not dispute that she
knew the alien was in the trunk when the vehicle attempted
to pass through the port of entry. Altamirano contends, how-
ever, that because she did not affirmatively assist the alien in
attempting to enter the United States, she did not engage in
alien smuggling. In addition, Altamirano argues that the BIA
impermissibly streamlined her appeal. The government
argues, however, that § 212(a)(6)(E)(i)’s prohibition against
alien smuggling encompasses Altamirano’s conduct, and
therefore that the IJ properly determined that she is inadmissi-
ble. The government further argues that the IJ erred in assum-
ing that the government bears the burden of proof rather than
placing the burden on Altamirano to prove that she was
admissible. See id. § 240(c)(2), 8 U.S.C. § 1229a(c)(2).

We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review
a final order of removal. We hold that Altamirano’s mere
presence in the vehicle at the port of entry does not constitute
alien smuggling under § 212(a)(6)(E)(i) despite her knowl-
1
INA § 212(a)(6)(E)(i) provides that: “Any alien who at any time know-
ingly 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 inadmissi-
ble.” 8 U.S.C. § 1182(a)(6)(E)(i) (Supp. V 1999).
14848 ALTAMIRANO v. GONZALES
edge that an alien was hiding in the trunk of the vehicle. The
IJ’s determination of inadmissibility was clearly contrary to
the plain meaning of the statutory provision. We therefore
grant the petition for review.2

I. Background

Emma Altamirano, a citizen of Mexico, is married to
Miguel Altamirano, a United States citizen. At the time of the
events at issue here, Altamirano resided in the United States
pursuant to a grant of parole by the Attorney General pending
final resolution of the immediate relative visa petition filed by
her husband. Altamirano’s parole status allowed her to depart
and reenter the United States.

Altamirano and her family frequently made trips back and
forth to Mexico. On May 20, 2000, Altamirano, her husband,
and their two daughters traveled from Ramona, California to
Tijuana, Mexico to purchase pinatas. Early the next day, when
Altamirano attempted to reenter the United States, she was
detained by immigration officers at the port of entry in San
Ysidro, California. Altamirano was returning to the United
States in the family car along with her husband, who was
driving, and her father-in-law, a permanent United States resi-
dent. A fourth individual, Juan Manuel Martinez-Marin, a
Mexican citizen, was hiding in the trunk. Altamirano, her hus-
band, and her father-in law were all aware that Martinez-
Marin was in the trunk when they attempted to enter the
United States. At the primary inspection station, the officers
inspected the vehicle and discovered Martinez-Marin in the
trunk. Altamirano was subsequently denied admission to the
United States because she allegedly engaged in alien smug-
gling in violation of INA § 212(a)(6)(E)(i).
2
Because the IJ did not make an adverse credibility determination, we
accept Altamirano’s testimony as credible. See Shoafera v. INS, 228 F.3d
1070, 1074 n.3 (9th Cir. 2000).
 ALTAMIRANO v. GONZALES 14849
At the July 30, 2001 removal hearing, Altamirano and her
husband testified that they decided to return to California on
May 21 because they had forgotten several items at home.
Altamirano’s husband explained that he needed to retrieve
their daughters’ birth certificates in order for their daughters
to reenter the United States and that Altamirano needed to
accompany him because she knew where the documents were
located. He further testified that Altamirano accompanied him
because they are “always together.”

When questioned by immigration officers following the
primary inspection of the vehicle, Altamirano informed the
officers that she knew that her father-in-law had made plans
with a friend to transport Martinez-Marin into the United
States. She admitted that her husband had told her of the plan
the night before.3 She also knew that Martinez-Marin was in
the trunk when she got into the vehicle. Altamirano testified,
however, that she did not see Martinez-Marin before they
were detained; she did not know his name prior to their deten-
tion and she did not know his final destination.

When the officers discovered Martinez-Marin in the trunk
during the primary inspection of the vehicle, they detained
Altamirano. Although Altamirano was not charged with a
criminal offense, the Immigration and Naturalization Service
(“INS”) initiated removal proceedings against her. The INS
served her with a Notice to Appear, alleging that she was an
“arriving 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” and was subject
to removal from the United States pursuant to INA
§ 212(a)(6)(E)(i).
3
Emma and Miguel Altamirano provided inconsistent testimony regard-
ing when each had knowledge of the smuggling effort. The IJ concluded,
however, that “the record appears undisputed that respondent knew of the
smuggling plan several hours prior to the vehicle’s arrival at the port of
entry.”
14850 ALTAMIRANO v. GONZALES
Following a hearing on July 30, 2001, the IJ issued an oral
decision. The IJ noted that Altamirano testified that “she was
not involved in the planning of the smuggling attempt” and
“was not involved in the placing of Martinez-Marin into the
trunk of the car.” In addition, the IJ found that Altamirano did
not know whether her father-in-law would be paid for his
assistance and that “her involvement in the smuggling attempt
was limited to her knowledge that Martinez-Marin was in the
trunk of the vehicle and her presence in the vehicle during the
primary and secondary inspections.” On the basis of these
findings, the IJ determined that with the “knowledge [that
Martinez-Marin was in the trunk], respondent was present in
the vehicle and was equally as culpable at that point, with her
husband, and her father-in-law, in the effort to assist and aid
Mr. Martinez-Marin’s unlawful entry into the United States
from Mexico.” The IJ therefore concluded that Altamirano
was inadmissible pursuant to INA § 212(a)(6)(E)(i). Altami-
rano appealed to the BIA, which, in a streamlined decision,
affirmed the results of the IJ’s decision. See 8 C.F.R.
§ 3.1(e)(4) (2003).

In Altamirano’s petition for review, she argues that
although she was present in the vehicle and knew that
Martinez-Marin was in the trunk, she did not “encourage[ ],
induce[ ], assist[ ], abet[ ] or aid[ ]” another alien to enter the
United States in violation of § 212(a)(6)(E)(i). Additionally,
she challenges the BIA’s decision to streamline her appeal on
the ground that the issue before the IJ—whether her presence
in the vehicle with her knowledge that Martinez-Marin was in
the trunk constituted alien smuggling in violation of
§ 212(a)(6)(E)(i)—was not controlled by precedent. See id.
§ 3.1(e)(4)(A).

II. Burden of Proof

In the IJ’s decision finding Altamirano inadmissible, the IJ
concluded that “the government has provided clear, cogent
and convincing evidence that respondent has violated Section
 ALTAMIRANO v. GONZALES 14851
212(a)(6)(E)(i)” of the INA, citing Woodby v. INS, 385 U.S.
276 (1966). The government argues that the IJ erred in con-
cluding that the government bears the burden of proof
because under INA § 240(c)(2) Altamirano bears the burden
of establishing that she is admissible.

[1] In removal proceedings, an alien who is “an applicant
for admission” bears the burden of establishing that she “is
clearly and beyond doubt entitled to be admitted and is not
inadmissible under section 1182 of this title; or . . . by clear
and convincing evidence, that the alien is lawfully present in
the United States pursuant to a prior admission.” INA
§ 240(c)(2), 8 U.S.C. § 1229a(c)(2) (Supp. V 1999); see also
8 C.F.R. § 240.8(b) (2000) (“Arriving Aliens. In proceedings
commenced upon a respondent’s arrival in the United States
or after the revocation or expiration of parole, the respondent
must prove that he or she is clearly and beyond a doubt enti-
tled to be admitted to the United States and is not inadmissi-
ble as charged.”). On the other hand, when an alien has been
admitted to the United States, “the Service has the burden of
establishing by clear and convincing evidence that . . . the
alien is deportable.” INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)
(3)(A) (Supp. V 1999).

The government argues that Altamirano is a parolee and is
therefore an “applicant for admission” who bears the burden
of proof. We agree. Under INA § 212(d)(5), the Attorney
General has the discretion to “parole into the United States
temporarily under such conditions as he may prescribe only
on a case-by-case basis for urgent humanitarian reasons or
significant public benefit any alien applying for admission to
the United States.” Id. § 212(d)(5)(A), 8 U.S.C.
§ 1182(d)(5)(A). Parole status, however, “shall not be
regarded as an admission of the alien,” id., and is not a “law-
ful entry of the alien into the United States.” Id.
§ 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A).4
4
INA §101(a)(13) provides, in relevant part:
(A) The terms “admission” and “admitted” mean, with respect to
14852 ALTAMIRANO v. GONZALES
[2] Accordingly, the IJ erred when he placed the burden of
proof on the government. As a parolee under INA
§ 212(d)(5), Altamirano was an applicant for admission when
she attempted to enter the United States on May 21, 2000. She
therefore bore the burden of establishing that she was “clearly
and beyond doubt entitled to be admitted and is not inadmissi-
ble under section 1182.” Id. § 240(c)(2)(A), 8 U.S.C.
§ 1229a(c)(2)(A). Nonetheless, the improper allocation of the
burden of proof does not affect our ultimate disposition of this
case. Here, determining whether Altamirano was inadmissible
under INA § 212(a)(6)(E)(i) is a matter of statutory construc-
tion. Because we conclude that the plain text of the alien
smuggling provision does not encompass Altamirano’s con-
duct, the allocation of the burden of proof is not dispositive
of the ultimate question of Altamirano’s admissibility.

III. INA § 212(a)(6)(E)(i)

Altamirano challenges the IJ’s determination that she vio-
lated § 212(a)(6)(E)(i) because she was present in the vehicle

an alien, the lawful entry of the alien into the United States after
inspection and authorization by an immigration officer.
(B) An alien who is paroled under section 1182(d)(5) of this title
. . . shall not be considered to have been admitted.
8 U.S.C. § 1101(a)(13) (Supp. V 1999). Further, 8 C.F.R. § 1.1(q) (2000)
provides:
The term arriving alien means an applicant for admission coming
or attempting to come into the United States at a port-of-entry, or
an alien seeking transit through the United States at a port-of-
entry, or an alien interdicted in international or United States
waters and brought into the United States by any means, whether
or not to a designated port-of-entry, and regardless of the means
of transport. An arriving alien remains such even if paroled pur-
suant to section 212(d)(5) of the Act, except that an alien who
was paroled before April 1, 1997, or an alien who was granted
advance parole which the alien applied for and obtained in the
United States prior to the alien’s departure from and return to the
United States, shall not be considered an arriving alien for pur-
poses of section 235(b)(1)(A)(i) of the Act.
 ALTAMIRANO v. GONZALES 14853
and knew that Martinez-Marin was in the trunk at the port of
entry. When, as here, the BIA affirms the IJ’s decision with-
out opinion, we review the IJ’s decision as the final agency
action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir. 2004)
(citing Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th
Cir. 2003)). “We review purely legal questions concerning the
meaning of the immigration laws de novo.” Lagandaon v.
Ashcroft, 383 F.3d 983, 987 (9th Cir. 2004) (citing Murillo-
Espinoza v. INS, 261 F.3d 771, 773 (9th Cir. 2001)). As
Altamirano “offers no objections to the IJ’s findings of fact,
this case presents a legal question that we review de novo.”
Perez-Enriquez v. Gonzales, 411 F.3d 1079, 1081 (9th Cir.
2005) (citing Shivaraman v. Ashcroft, 360 F.3d 1142, 1145
(9th Cir. 2004) and Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.
1995)).

The IJ determined that Altamirano’s presence in the vehicle
with knowledge that Martinez-Marin was hiding in the trunk
constituted a violation of § 212(a)(6)(E)(i). The IJ emphasized
that this conclusion was not based on “any theory involving
a conspiracy entered into by respondent, her husband, and her
father-in-law.” Rather, the IJ found that when Altamirano
arrived at the port of entry, she, like her husband and father-
in-law, knew that “there was an undocumented and unautho-
rized Mexican national in the trunk of the car.” As noted, the
IJ concluded that “[w]ith that knowledge, respondent was
present in the vehicle and was equally as culpable at that
point, with her husband, and her father-in-law, in the effort to
assist and aid Mr. Martinez-Marin’s unlawful entry into the
United States from Mexico.” In sum, the IJ reasoned,

Although it is true that respondent does not appear
to have been involved in the planning stages of the
smuggling attempt, or that she assisted in the physi-
cal acts of placing Mr. Martinez-Marin into the trunk
of the vehicle, she nonetheless made herself equally
as culpable as her father-in-law and husband, when
she agreed, having knowledge of Mr. Martinez-
14854 ALTAMIRANO v. GONZALES
Marin’s presence in the trunk of the vehicle, to
accompanying her family members to the United
States.

The IJ’s reasoning, however, is contrary to the alien smug-
gling provision.

[3] “The starting point for our interpretation of a statute is
always its language.” Cmty. for Creative Non-Violence v.
Reid, 490 U.S. 730, 739 (1989). “[W]e begin by looking to
the plain meaning of the term[s] at issue.” Padash v. INS, 358
F.3d 1161, 1169 (9th Cir. 2004). Section 212(a)(6)(E)(i) pro-
vides that, “[a]ny alien who at any time 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 inadmissible.” 8 U.S.C. § 1182(a)(6)(E)(i) (Supp. V
1999).5 The plain meaning of this statutory provision requires
an affirmative act of help, assistance, or encouragement. Here,
because Altamirano did not affirmatively act to assist
Martinez-Marin, she did not engage in alien smuggling. That
she was present in the vehicle and knew that Martinez-Marin
was in the trunk does not amount to a violation of
§ 212(a)(6)(E)(i). Thus, the IJ’s conclusion that Altamirano’s
mere presence and knowledge constituted alien smuggling is
“clearly contrary to the plain and sensible meaning of the stat-
ute.” Kankamalage v. INS, 335 F.3d 858, 862 (9th Cir. 2003).
5
Similarly, INA § 237(a)(1)(E)(i), which relates to admitted aliens, pro-
vides: “Any alien who (prior to the date of entry, at the time of any entry,
or within 5 years of the date of any entry) 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.” 8 U.S.C.
§ 1227(a)(1)(E)(i) (Supp. V 1999). Prior to 1990, the exclusion and depor-
tation smuggling provisions applied to those who knowingly assisted the
illegal entry of an alien “for gain.” See id. § 212(a)(31), 8 U.S.C.
§ 1182(a)(31) (1988); id. § 241(a)(13), 8 U.S.C. § 1251(a)(13). The “for
gain” requirement was removed with the enactment of the Immigration
Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978.
 ALTAMIRANO v. GONZALES 14855
[4] Indeed, when courts or the BIA have determined that an
alien is removable under the INA for having engaged in alien
smuggling, the alien has provided some form of affirmative
assistance to the illegally entering alien. See, e.g., Moran v.
Ashcroft, 395 F.3d 1089, 1091-92 (9th Cir. 2005) (stating that
alien paid smugglers to bring his wife and child to the United
States); Sidhu v. Ashcroft, 368 F.3d 1160, 1162 (9th Cir.
2004) (explaining that alien agreed in advance to help her
nephew illegally enter, guided him through immigration at the
airport, and presented his fraudulent documents at the air-
port); Khourassany v. INS, 208 F.3d 1096, 1101 (9th Cir.
2000) (stating that alien paid smugglers to bring his wife and
child to the United States); see also Olowo v. Ashcroft, 368
F.3d 692, 697 (7th Cir. 2004) (emphasizing that alien deliv-
ered plane tickets to three Nigerian citizens and hid their
Nigerian passports from the INS inspectors, and also provided
false information and false documents to the INS to assist the
Nigerian child to enter illegally); Sanchez-Marquez v. INS,
725 F.2d 61, 63 (7th Cir. 1984) (explaining that alien pre-
arranged to drive and drove seven aliens from the Texas-
Mexico border to San Antonio); Matter of Arthur, 16 I. & N.
Dec. 558, 558 (B.I.A. 1978) (describing how petitioner ille-
gally transported aliens into the United States from Panama);
Matter of Vargas-Banuelos, 13 I. & N. Dec. 810, 812 (B.I.A.
1971) (stating that alien pre-arranged in Mexico to assist
aliens to enter the United States, instructed them where to
cross the border undetected, told them where to go in the
United States, and arranged for a driver to pick them up once
they entered); Matter of Corral-Fragoso, 11 I. & N. Dec. 478,
478-79 (B.I.A. 1966) (explaining that alien pre-arranged in
Mexico to transport aliens from El Paso, Texas to Chicago,
Illinois and drove them in accordance with the arrangements).6
6
We also note the U.S. Department of State Foreign Affairs Manual’s
interpretation of § 212(a)(6)(E)(i):
The actions for which a “smuggler” might be found ineligible are
numerous. They could be as little as offering an alien a job under
circumstances where it is clear that the alien will not enter the
14856 ALTAMIRANO v. GONZALES
Moreover, the Sixth Circuit recently has held that an alien
is not inadmissible under § 212(a)(6)(E)(i) if the alien did not
perform an affirmative act of assistance. See Tapucu v. Gon-
zales, 399 F.3d 736, 740-42 (6th Cir. 2005). In Tapucu,
Morhay Tapucu and three friends shared driving responsibili-
ties during a return trip from Toronto, Canada back to Chi-
cago where they resided. Id. at 737. When stopped at the port
of entry, Tapucu was driving. One member of the group, Kir-
kor Deveci, was a Canadian citizen who had been living ille-
gally in Chicago. Id. Tapucu testified that he knew that
Deveci had been living illegally in the United States, but he
believed that Deveci’s family had applied for permanent resi-
dence status for him. Id. The IJ concluded that Tapucu
engaged in alien smuggling because “he was driving the van
at the time it reached the border, because Tapucu knew that
Deveci was living illegally in the United States and because
Tapucu failed to correct Deveci’s misstatement to the officers
that he had a residence in Toronto, Canada.” Id. at 738.

[5] On appeal, however, the Sixth Circuit vacated the IJ’s
decision, holding that the facts showed that “Tapucu did not
commit a single affirmative act designed to assist an illegal
effort by Deveci to cross the border and that indeed Tapucu
thought Deveci legally could re-enter the country.” Id. at 739.
The court held that the alien smuggling provision “requires an
affirmative and illicit act of assistance in shepherding some-
one across the border.” Id. at 740. The court further empha-
sized that there was no authority for holding that “one may be
tagged as a smuggler of aliens without committing a single

United States legally in order to accept the employment (encour-
age and induce), or they might actually involve physically bring-
ing an alien into the United States illegally (aid and assist).
9 U.S. DEP’T OF STATE, FOREIGN AFF. MANUAL § 40.86 n.5 (1995). None-
theless, some “action” must occur to render an alien inadmissible or
excludable on the basis of alien smuggling. No such action took place
here.
 ALTAMIRANO v. GONZALES 14857
affirmative illicit act.” Id. at 741. We agree with the Sixth Cir-
cuit’s interpretation of § 212(a)(6)(E)(i).

[6] Our conclusion is buttressed by the well-established
meaning of aiding and abetting. We consider the traditional
criminal law aiding and abetting doctrine here because
§ 212(a)(6)(E)(i) imports this concept from criminal law and
because the alien smuggling provisions of the INA have been
generally analyzed as aiding and abetting statutes. See, e.g.,
Matter of I— M—, 7 I. & N. Dec. 389, 391 (B.I.A. 1957)
(“We agree with counsel that the provisions of section 274
cannot be ‘added to’ section 241(a)(13) to make the crime of
‘transporting’ a deportable offense, where there was no ‘aid-
ing and abetting the entry.’ We find that respondent did not
aid or abet the entry of the assisted aliens.”); see also Cuevas-
Cuevas v. INS, 523 F.2d 883, 884 (9th Cir. 1975) (per curiam)
(“Petitioner’s plea of guilty[, admitting that he violated 8
U.S.C. § 1325 and 18 U.S.C. § 2,] established that he know-
ingly abetted and aided other aliens to enter the United States
in violation of law within the meaning of 8 U.S.C.
§ 1251(a)(13).”); Matter of Contreras, 18 I. & N. Dec. 30, 32
(B.I.A. 1981) (“The applicant’s plea of guilty to the Title 18
U.S.C. 1325 offense[, conspiracy to aid and abet the illegal
entry of aliens,] establishes the first element required to show
that he knowingly aided and abetted another alien to enter the
United States in violation of law.”).7
7
In several other circumstances, courts have looked to criminal law or
other areas of civil law to interpret immigration statutes. For example, in
Jordan v. De George, 341 U.S. 223 (1951), the Supreme Court held that
in deciding whether a crime is one involving “moral turpitude” under the
Immigration Act of 1917, the Court must “look to the manner in which the
term ‘moral turpitude’ has been applied by judicial decision.” Id. at 227.
Noting cases outside the immigration context, the Court stated “[w]ithout
exception, federal and state courts have held that a crime in which fraud
is an ingredient involves moral turpitude.” Id. We also look to criminal
law principles to determine whether a criminal conviction constitutes an
aggravated felony or a crime of violence for immigration purposes. See,
e.g., Penuliar v. Ashcroft, 395 F.3d 1037, 1041-46 (9th Cir. 2005) (apply-
ing the analytical framework of Taylor v. United States, 495 U.S. 575
(1990), which governs the categorization of crimes for the purpose of sen-
tencing enhancements, to determine whether a crime is an “aggravated fel-
ony” or a “crime of violence” under the INA removal provisions).
14858 ALTAMIRANO v. GONZALES
[7] It is well-established that “[i]n order to aid and abet
another to commit a crime it is necessary that a defendant ‘in
some sort associate himself with the venture, that he partici-
pate in it as in something that he wishes to bring about, that
he seek by his action to make it succeed.’ ” Nye & Nissen v.
United States, 336 U.S. 613, 619 (1949) (quoting United
States v. Peoni, 100 F.2d 401, 402 (2nd Cir. 1938) (Hand, J.)
(emphasis added)). A defendant cannot be convicted of aiding
and abetting absent an affirmative act of assistance in the
commission of the crime. See United States v. Atkinson, 966
F.2d 1270, 1274 (9th Cir. 1992) (holding that the district
court’s jury instructions on aiding and abetting were proper
because they “clearly informed the jury they could convict
Atkinson only if they found he took some affirmative step to
assist in the commission of a crime”). This common under-
standing of aiding and abetting is reflected in Ninth Circuit
Model Criminal Jury Instruction 5.1. The model instruction
admonishes jurors that: “It is not enough that the defendant
merely associated with the person committing the crime, or
unknowingly or unintentionally did things that were helpful to
that person, or was present at the scene of the crime.” Ninth
Cir. Model Crim. Jury Inst. 5.1 (2005).8
8
Ninth Circuit Model Criminal Jury Instruction 5.1 provides, in full:
A defendant may be found guilty of [crime charged], even if the
defendant personally did not commit the act or acts constituting
the crime but aided and abetted in its commission. To prove a
defendant guilty of aiding and abetting, the government must
prove beyond a reasonable doubt:
First, [crime charged] was committed by someone;
Second, the defendant knowingly and intentionally aided, coun-
seled, commanded, induced or procured that person to commit
each element of [crime charged]; and
Third, the defendant acted before the crime was completed.
It is not enough that the defendant merely associated with the
person committing the crime, or unknowingly or unintentionally
did things that were helpful to that person, or was present at the
scene of the crime.
 ALTAMIRANO v. GONZALES 14859
[8] Further, we consistently have held that “mere presence
at the scene of the crime and knowledge that the crime is
being committed is not enough” to sustain a conviction for
aiding and abetting. United States v. Bancalari, 110 F.3d
1425, 1430 (9th Cir. 1997); see also United States v. Negrete-
Gonzales, 966 F.2d 1277, 1282 (9th Cir. 1992); United States
v. Rubio-Villareal, 927 F.2d 1495, 1500-02 (9th Cir. 1991);
United States v. Burgess, 791 F.2d 676, 680 (9th Cir. 1986);
Diaz-Rosendo v. United States, 364 F.2d 941, 944 (9th Cir.
1966). The prosecution must prove that “the defendant was a
participant, and not merely a knowing spectator.” United
States v. Gaskins, 849 F.2d 454, 460 (9th Cir. 1988). In
United States v. Sanchez-Mata, 925 F.2d 1166 (9th Cir.
1991), for instance, we considered whether there was suffi-
cient evidence to support a conviction of aiding and abetting
possession with intent to distribute narcotics. Despite evi-
dence that Sanchez-Mata was a passenger in a vehicle carry-
ing 141 pounds of marijuana, and that he likely knew the
marijuana was in the vehicle because of its strong odor, we
concluded that “the evidence against Sanchez-Mata for aiding
and abetting is nonexistent. Sanchez-Mata’s presence as a
passenger in the car cannot support an aiding and abetting the-
ory.” Id. at 1169 (emphasis added).

[9] Similarly, here, Altamirano’s mere presence in the vehi-
cle with knowledge that Martinez-Marin was in the trunk does
not amount to aiding and abetting or assisting the illegal entry
of an alien. Section 212(a)(6)(E)(i) requires an act of assis-
tance or encouragement. There is no evidence of any such
affirmative act here. The government argues that Altami-

The evidence must show beyond a reasonable doubt that the
defendant acted with the knowledge and intention of helping that
person commit [crime charged].
The government is not required to prove precisely which defen-
dant actually committed the crime and which defendant aided and
abetted.
14860 ALTAMIRANO v. GONZALES
rano’s presence in the car provided an air of normalcy and
legitimacy that assisted in ensuring Martinez-Marin’s illegal
entry. This, however, was not the basis for the IJ’s decision.
We “may not accept appellate counsel’s post hoc rationaliza-
tions for agency action; Chenery requires that an agency’s
discretionary order be upheld, if at all, on the same basis artic-
ulated in the order by the agency itself . . . .” Burlington Truck
Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962) (cit-
ing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

Further, the record does not support this theory. There is no
evidence that Altamirano’s presence, or a passenger’s pres-
ence in general, would make the immigration officers at the
border less suspicious. Nor is there evidence that the immigra-
tion officers knew that Altamirano and her husband regularly
made trips from the United States to Mexico. It is just as
likely that Altamirano’s husband and father-in-law routinely
made such trips without Altamirano. We therefore cannot
accept the government’s litigation theory, which neither
formed the basis for the IJ’s determination nor finds support
in the record.

[10] Thus, we conclude that Altamirano’s mere presence in
the vehicle with knowledge of the plan did not constitute alien
smuggling under § 212(a)(6)(E)(i). The IJ’s determination to
the contrary clearly contradicted the statutory requirement
that a violation involve an affirmative act of assistance or
encouragement. We therefore grant the petition for review.9

IV. Conclusion

We conclude that Altamirano was an applicant for admis-
sion and bears the burden of proof. See 8 U.S.C.
§ 1129a(c)(2) (Supp. V 1999). Nonetheless, we hold that INA
§ 212(a)(6)(E)(i) requires an affirmative act of assistance or
9
In light of our disposition, we need not address Altamirano’s argument
that the BIA erred in streamlining her appeal.
 ALTAMIRANO v. GONZALES 14861
encouragement and that the IJ’s conclusion that Altamirano
violated § 212(a)(6)(E)(i) without such an act is clearly con-
trary to the plain language of the INA. We therefore grant the
petition for review and remand to the IJ with instructions to
grant Altamirano’s motion to terminate removal proceedings
against her.

PETITION GRANTED.

RYMER, Circuit Judge, concurring in part and dissenting in
part:

I agree that the immigration judge improperly placed the
burden of proof regarding inadmissibility on the government
rather than on Altamirano. And while I generally agree with
the majority’s construction of § 212(a)(6)(E)(i) of the Immi-
gration and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)
(E)(i), and the well-established aiding and abetting principles
which it embodies, I part company over the application of
those principles and the statute to the facts of this case.

I do not think the IJ was compelled to find that Altamirano
did not affirmatively assist or encourage her husband and
father-in-law. The question is not whether Altamirano’s
knowledge of illegal activity and mere presence in the car suf-
fice to bring her within the terms of the statute, but whether
her deliberate presence in the car when it crossed the border,
knowing that her husband and father-in-law were smuggling
an illegal alien in the trunk of the car, supports a finding that
she joined them in the car and stayed in the car for the pur-
pose of facilitating the smuggling. It does, because Altami-
rano’s getting into the car and not getting out at the border
were affirmative acts that assisted the alien smuggling plan by
making it less likely that the car would be stopped. Altami-
rano knew about her husband’s and father-in-law’s plan to
smuggle Martinez-Marin into the country in the trunk of the
14862 ALTAMIRANO v. GONZALES
car when she agreed to travel with them from Tijuana back to
Ramona at 4:30 a.m. She admitted that no one forced her to
go with them. Altamirano also knew that she could have left
the car and walked across the border, rather than remain as a
passenger, when the car reached the primary inspection sta-
tion. And, contrary to the account her husband gave about the
reason they were returning to the United States and why
Altamirano had to come along, she could not give a coherent
explanation of the reason for their trip. Together, these facts
support a reasonable inference that Altamirano was fully on
board the program, thereby affirmatively helping to bring the
illegal alien across the border.

I would, therefore, deny the petition.