Jesus Pena-Morales v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
NOV 28 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESUS SALVADOR PENA- ) No. 13-73363
MORALES, )
) Agency No. A079-804-855
Petitioner, )
) MEMORANDUM*
v. )
)
LORETTA E. LYNCH, Attorney )
General, )
)
Respondent. )
)

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted November 8, 2016
Pasadena, California

Before: O’SCANNLAIN, FERNANDEZ, and RAWLINSON, Circuit Judges.

Jesus Pena-Morales, a citizen of Mexico and a lawful permanent resident of

the United States, petitions for review of the Board of Immigration Appeals’ (BIA)

decision upholding the Immigration Judge’s (IJ) order of removal based upon

Pena’s engaging in alien smuggling. See 8 U.S.C. § 1182(a)(6)(E)(i). We deny the

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
petition.

(1) Pena asserts that the BIA improperly upheld the IJ’s credibility

determinations, because the IJ clearly erred1 when she determined that he was not

credible. We disagree. We have carefully reviewed the record, including, but not

limited to, the reports and testimony of the agents, Pena’s recorded statements at

the time of the incident, Pena’s testimony, his declarations, and the testimony of

his wife. We conclude that substantial evidence supports the determinations by the

BIA and the IJ. See Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014); see

also 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).

Moreover, the record supports the determination that Pena’s statements were

not a result of duress or coercion.2 See Gonzaga-Ortega v. Holder, 736 F.3d 795,

804 (9th Cir. 2013); Samayoa-Martinez v. Holder, 558 F.3d 897, 902 (9th Cir.

2009). Likewise, the evidence does not lead to a conclusion that he was under

criminal investigation at the time or that 8 C.F.R. § 292.5(b) otherwise applies to

1
Oshodi v. Holder, 729 F.3d 883, 892 (9th Cir. 2013) (en banc); Rodriguez v.
Holder, 683 F.3d 1164, 1171–72 (9th Cir. 2012); see also Anderson v. City of
Bessemer City, 470 U.S. 564, 574–76, 105 S. Ct. 1504, 1512, 84 L. Ed. 2d 518
(1985).
2
Thus, his claim that 8 C.F.R. § 287.8(c)(2)(vii) was violated also fails.

2
him. See Gonzaga-Ortega, 736 F.3d at 804.

(2) Pena also mounts other evidentiary attacks on the record, but each of

those fails.

He asserts that evidence of his recorded statement should be excluded

because, while there was a certified transcript of his sworn statements in a video

recording, the video recording itself was not available. However, the record

supports the determination that the government diligently sought to locate the

missing video recording, and could not locate it. Cf. Hernandez-Guadarrama v.

Ashcroft, 394 F.3d 674, 682 (9th Cir. 2005); Saidane v. INS, 129 F.3d 1063, 1065

(9th Cir. 1997). Moreover, in his testimony before the IJ he admitted that he had

told the agents that he tried to smuggle an illegal alien child into this country.3

Pena asserts that he should have been able to cross-examine other witnesses:

one agent whose report was cumulative, but was not shown to be unreliable;4 the

illegal alien; and Pena’s friend (Martinez) who told the officers that the illegal

alien child was a United States citizen. However, even if those witnesses could

3
On this record we do not find cause to exclude the transcript of the video
recording, however, absence of the recording does cause us concern. The
government should take more effective steps to assure that recordings are
preserved when it anticipates using the transcripts thereof.
4
See Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995) (proper to rely upon
reliable I-213 reports).

3
and should have been produced, Pena has not shown that any prejudice flowed

from their absence, and on this record we perceive none. See Robleto-Pastora v.

Holder, 591 F.3d 1051, 1062 (9th Cir. 2010); Cinapian v. Holder, 567 F.3d 1067,

1075 (9th Cir. 2009).

(3) Pena finally asserts that the record was insufficient to support a

determination by clear and convincing evidence5 that he had, indeed, engaged in

alien smuggling. We disagree; the record offers ample support for that

determination.

Petition DENIED.

5
See Perez-Arceo v. Lynch, 821 F.3d 1178, 1183 (9th Cir. 2016); see also
Landon v. Plasencia, 459 U.S. 21, 24, 35, 103 S. Ct. 321, 325, 330–31, 74 L. Ed.
2d 21 (1982); Mondaca-Vega v. Lynch, 808 F.3d 413, 419–22 (9th Cir. 2015) (en
banc), cert. denied, No. 15-1153, __ U.S. __, __, __ S. Ct. __, __, 2016 WL
1046856 (Oct. 3, 2016).

4