FILED NOT FOR PUBLICATION NOV 05 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROSA HAYDEE HERNANDEZ- No. 15-70902 ROMERO, Agency No. A094-190-612 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 21, 2019 San Francisco, California Before: BYBEE and N.R. SMITH, Circuit Judges, and MENDOZA,** District Judge. Rosa Hernandez–Romero, a native and citizen of El Salvador, petitions for review of the dismissal of her appeal by the Board of Immigration Appeals (“BIA”), following an Immigration Judge’s (“IJ”) order of removal and denial of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Salvador Mendoza, Jr., United States District Judge for the Eastern District of Washington, sitting by designation. her applications for asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and cancellation of removal. We deny the petition for review in part, grant the petition in part, and remand for further proceedings. 1. Substantial evidence supports the BIA’s conclusion that Hernandez–Romero was removable as an alien smuggler. First, Hernandez–Romero’s due process rights were not violated by the admission of the statement she made at the border before being informed of her right to counsel. Hernandez–Romero was not in formal removal proceedings when she made the statements to the border agent; therefore, the border agent was not required under the regulation to provide her with advisals regarding her right to counsel.1 See Samayoa–Martinez v. Holder, 558 F.3d 897, 901 (9th Cir. 2009); 8 C.F.R. § 287.3(c). Second, Hernandez–Romero’s due process rights were not violated by the admission of the Forms I-213 and G-66 without requiring the government to produce the creator of the documents. We have long held that these forms are reliable documents and admissible absent evidence challenging the documents 1 Hernandez–Romero did not assert that the agency egregiously violated her Fourth Amendment rights to the BIA or in her opening brief. See Perez Cruz v. Barr, 926 F.3d 1128, 1137 (9th Cir. 2019) (outlining exceptions to the Fourth Amendment Exclusionary Rule in immigration proceedings). Thus she did not exhaust this issue before the BIA, Barron v. Ashcroft, 358 F.3d 674, 676–78 (9th Cir. 2004), and has waived it on appeal, Martinez–Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996). 2 authenticity or reliability, which Hernandez–Romero did not present. See Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995). Finally, the BIA did not err in sustaining the alien smuggling charge. Hernandez–Romero’s actions met the elements of 8 U.S.C. § 1182(a)(6)(E)(i). The record supports the conclusion that, despite learning that the minor child’s documents were fraudulent just prior to presenting herself and the minor child at the border, Hernandez–Romero nevertheless knowingly presented those false documents to the border agent. 2. The BIA concluded that Hernandez–Romero was not eligible for cancellation of removal, because (A) ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals