U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Qffice of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - SNA

De Mott, McChesney, Curtright

& Armendariz, LLP
800 Dolorosa, Suite 100

8940 Fourwinds Drive, 5th Floor

San Antonio, TX 78239

San Antonio, TX 78207

Name: MARTINEZ, ALMA NELIDA

A 076-824-333

Date of this notice: 3/19/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Pauley, Roger
Greer, Anne J.
Wendtland. Linda S.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Alma Nelida Martinez, A076 824 333 (BIA March 19, 2015)

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Rodriguez, Juan Carlos, Esq.

U.S.

Decision of the Board of Immigration Appeals

Department of Justice

Exeutive Office for Immigration Review

Falls Church, Virginia 20530

File:

Date:

A076 824 333 - San Antonio, TX

In re: ALMA NELIDA MARTINEZ

APPEAL
ON BEHALF OF RE SPONDENT:
ON BEHALF OF DH S:

Juan Carlos Rodriguez, Esquire

Stuart D. Alcorn

Assistant Chief Counsel

CHARGE:
Notice:

Sec.

237(a)(2)(A)(iii), I&N Act [8 U. S.C. l 227(a)(2)(A)(iii)] Convicted of aggravated felony (as defined in section 10l(a)(43)(N))

Sec.

237(a)(l)(E)(i), I&N Act [8 U. S.C. 1227(a)(l){E)(i)] Alien smuggler

APPLICATION:

Adjustment of status

The respondent, a native and citizen of Mexico, has appealed from the decision of the
Immigration Judge dated February 7, 2013.

In that decision, the Immigration Judge, first,

sustained the charges of deportability based on the evidence in the record of proceeding relating
to the respondent's May 18, 2005, conviction for Bringing in and Harboring Certain Aliens in
violation of section 274(a)(l )(A)(ii) of the Immigration and Nationality Act, 8 U. S.C.
1324(a)(l)(A)(ii) (I.J. at 2-5; Exhs. 1-4). Second, the Immigration Judge made an adverse
credibility finding with regard to the respondent and her United States citizen spouse (I.J. at 3-4).
Finally, the Immigration Judge determined that the respondent has not established her
admissibility for adjustment of status under section 212(a)(6)(E)(i) of the Act, 8 U. S.C.

I 182(a)(6)(E)(i), by a preponderance of the evidence (I.J. at 5-6). For the following reasons
the respondent's appeal will be sustained, and the record of proceeding will be remanded for
further proceedings and the entry of a new decision.
We agree with the Immigration Judge that the evidence presented by the Department of
Homeland Security C'DHS") establishes that the respondent is deportable under section
237(a)(2)(A)(iii) of the Act, 8 U. S.C. 1227(a)(2)(A)(iii). The respondent was convicted under
section 274(a)(l)(A)(ii) of the Act, and section IOI(a)(43)(N) of the Act, 8 U. S.C.

l 101(a)(43)(N), defines an aggravated felony as including any conviction under section

274(a)(l)(A) of the Act. The respondent has not disputed this on appeal.
However, we disagree that the respondent is deportable under section 237(a)(I )(E)(i) of the
Act and, correspondingly, inadmissible for adjustment of status under section 212(a)(6)(E)(i) of

Cite as: Alma Nelida Martinez, A076 824 333 (BIA March 19, 2015)

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IN REMOVAL PROCEEDING S

A076 824 33;3

the Act.

The Criminal Information to which the respondent pleaded guilty reflects that on

January 21, 2005, the respondent and her United States citizen husband with:
knowing and in reckless disregard of the fact that [the unlawfully present alien]
was an alien who had come to, entered and remained in the United States in
violation of law, did transport and move such alien for the purpose of commercial
within the United States, by means of a motor vehicle.
(Exh. 3 at p.3). The respondent testified that a group of five men approached her husband at a
gas station in Laredo, Texas, near the southern border and offered to pay for a ride further north
(Tr. at 19-25). The respondent further testified that, although she did not "know" that the men
were unlawfully present aliens, she assumed that they were because they were seeking a ride
from the gas station to go further inland (Tr. at 23). The respondent explained that she and her
husband divided the five men between their two vehicles and drove until they reached the border
patrol checkpoint, where, upon inquiry and investigation, she and her husband were arrested and
eventually charged under section 274(a)(l )(A)(ii) of the Act (Tr.at 2 1, 24).
On appeal the respondent argues that she is not inadmissible for adjustment of status under
section 2 12(a)(6)(E)(i) of the Act because "she did not know the manner of [the five aliens']
unlawful entry in the United States" (Respondent's Br. at 12). The respondent further contends
that the fact that. she did not transport the five aliens "immediately after their unlawful entry"
shows that she "was not part of a scheme or plan to assist the aliens to enter the United States
illegally" (Respondent's Br. at 12).
We recognize that the respondent has the burden of establishing that she is "clearly and
beyond doubt" admissible for adjustment of status. See Soriano v. Gonzales, 484 F.3d 3 18, 320
n. I (5th Cir. 2007) ("In a removal proceeding, the applicant for admission has the burden of
showing that he is 'clearly and beyond doubt entitled to be admitted and is not inadmissible
under [8 U.S.C.] 1 182 . . . ."' (citation omitted)).
However, for the respondent to be
inadmissible as a result of alien smuggling, the record must include at least some affirmative
indication of such inadmissibility, and on this record, we see no such affirmative indication.
To begin with the statute of conviction, section 274(a)( l )(A)(ii) of the Act, has a minimum
mens rea of "reckless disregard," meaning that mere recklessness is sufficient to support a

conviction. Section 2 12(a)(6)(E)(i) of the Act, conversely, requires outright ''knowledge" on the
part of the respondent in order for her to trigger this ground of inadmissibility.
Having reviewed the record of proceeding in its entirety, including the Report of
Investigation prepared on January 21, 2005 (Form G- 166), we see no affirmative indication that
the respondent may have "knowingly ..encouraged, induced, assisted, abetted, or aided" any of
the aliens identified in the Report of Investigation "to enter or try to enter the United States in
.

violation of law ..

" See section 2 12(a)(6)(E)(i) of the Act. While the respondent's refusal to

cooperate with the investigation may support an adverse inference against her, such an inference
alone does not rise to the level of an affirmative indication of potential inadmissibility under
section 2 12(a)( 6)(E)(i) of the Act. See, e.g., Matter of Guevara, 20 I&N Dec. 238 (BIA 199 1).

Cite as: Alma Nelida Martinez, A076 824 333 (BIA March 19, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

advantage or private financial gain and in furtherance of such violation of law,

A076824 333

Accordingly, we reverse the Immigration Judge's determination that the respondent has not
established her admissibility for adjustment of status under section 2 l 2(a)(6)(E)(i) of the Act.
We will therefore remand the record of proceeding for the Immigration Judge to determine if the
respondent is otherwise admissible and eligible for adjustment of status, as well

as

deserving of

lawful permanent residence in the exercise of discretion.

ORDER: The respondent's appeal is sustained, and the record of proceeding is remanded for
further proceedings and th

on

FOR THE BOARD

Cite as: Alma Nelida Martinez, A076 824 333 (BIA March 19, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

The following order will be entered.

UN ITED STATES DEPARTMENT OF JUST ICE

EXECUT IVE OFF ICE FOR IMMIGRATION REV IEW
UN ITED STATES IMM IGRAT ION COURT
SAN ANTONIO, TEXAS

February 7, 2013

A076-824-333

In the Matter of

IN REMOVAL PROCEED INGS

ALMA NELIDA MARTINEZ

RESPONDENT

CHARGES:

Section 237(a) (2) (A) (iii) of the Irrunigration and

Nationality Act, one convicted of an aggravated
felony; Section 237(a) (1)(E) (i) of the Act, one who
has aided, assisted or abetted another to enter the
United States illegally.

APPL ICAT IONS:

Adjustment of status to lawful permanent resident.

ON BEHALF OF RESPONDENT:

JUAN CARLOS RODR IGUEZ

800 DOLOROSA, SU ITE 100
SAN ANTONIO, TEXAS 78207

ON BEHALF OF OHS:

STUART D.

ALCORN

p.s. IMM IGRATION AND CUSTOMS ENFORCEMENT

U. S. DEPARTMENT OF HOMELAND SECURITY
8940 FOURWINDS DR IVE, ROOM 5 045
SAN ANTON IO, TEXAS 78239

ORAL DEC IS ION OF THE IMM IGRAT ION JUDGE

The respondent is a 43-year-old married female, a native
and citizen of Mexico, who received lawful permanent residence

Immigrant & Refugee Appellate Center | www.irac.net

File:

(Field Cod

in the United States on February 5,

status at Houston,

Texas.

1999,

On July 24,

by an adjustment of
the Department of

Homeland Security issued a Notice to Appear,

charging that the

respondent would be removable from the United States under the

provisions of Section 237(a) (2) (A) (iii}
Nationality Act,

of the Immigration and

as well as Section 237(a) (1) (E) (i)

Immigration and Nationality Act,

convicted on May 18,

of the

by reason of having been

2005 in the United States District Court

for the Southern District of Texas for the offense of

transporting an undocumented alien within the United States by
means of a motor vehicle for private financial gain.
respondent,

with counsel,

has admitted the truth of the first

three factual allegations in the Notice to Appear,

fourth,

fifth and sixth factual allegations,

charges.

The

denied the

and denied both

Counsel for the Government has presented a judgment

(Exhibit 2}

showing that the respondent was convicted on a plea

of guilty of the offense of a violation of Title 8 United States

Code Section 1324 (a) (1) (A) (ii) ,

as well as 1324(a) (1) (B) (i) .

conclude that this is specifically an aggravated felony under

Section lOl(a) (43) (N)

of the Immigration and Nationality Act,

and the judgment and conviction are sufficient to establish that

the respondent is removable under Section 237(a) (2) (A} (iii}

of

the Immigration and Nationality Act by clear and convincing

evidence.
With respect to the charge under Section 237(a) (1) (E) (i)

of

2013

A076-824-333

February 7,

Immigrant & Refugee Appellate Center | www.irac.net

2010,

the Act,

I would note that the Government's complaint as

presented (Exhibit 3) and investigative report (Exhibit 4}

the complaint and criminal information,

in the words of

knowing and in rec kless

disregard of the fact that a named individual was an alien who

had come to,

entered and remained in the United States in

violation of law did transport and move such alien for purpose
of commercial advantage or a private financial gain,

and in

furtherance of such violation of law within the United States by

means of a motor vehicle,

and in fact tracks the language

contained in the Immigration and Nationality Act at Section 274.

I note that the offense contains an element that the crime must
be conunitted in furtherance of such violation of law,

and that

the violation of law referred to is that the alien comes to

enter or remains in the United States in violation of law.
would have to conclude that categorically,

there must be some

knowledge that the defendant is furthering the violation of law

by the individual being transported.
I would also note that the respondent and her husband
testified,

giving their current versions of events on January

21,

I take notice that January 21,

2005.

working day,

and a school day as well,

2005 was Friday,

and considering the

number of instances where the respondent first asserted that,

for instance,

she had never been arrested and later that she did

not remember,

although finally recalling that she had,

A076-824-333

in fact,

February 7,

2013

Immigrant & Refugee Appellate Center | www.irac.net

consistent in alleging that the respondent was,

are

been arrested and convicted for the offense described here and
various other instances during her testimony and her eventual

answers that would be damaging.L

I find her testimony not

credible, and would also have to conclude that the testimony of

the husband as well was not credible.

The entire scenar1o of

taking a Mexican permit to Houston, Texas because a line was too

long to wait in, and then returning on a working day with
children who are missing school and parents who are both missing
work for the sole purpose of returning that permit, and then
gratuitously picking up people at the roadside in Laredo, Texas
for the specific purpose of dropping them on the roadside in San
Antonio,

Texas is improbable and does not ring true.

documentation created contemporaneously (Exhibit 4)

The
I believe is

more reliable than the testimony of the respondent and her

husband on this date, and given their interest in the respondent
remaining in the United States.

I would have to conclude that

the criminal complaint, setting forth as it does7 that at the

time of apprehension7 all three principal subjects refused to
give statementsL is another indication that they were aware of
and participating in a scheme to bring very recent arrivals in
the United States away from the border area.

I would have to

find that this would be sufficient given the Fifth Circuit Court
of Appeals holding in Soriano v.
Cir.

2007)

Gonzalez, 484 F. 3d 318

(5 th

to demonstrate that the respondents were part of a

A076-824-333

February 7, 2013

Immigrant & Refugee Appellate Center | www.irac.net

admission that she was attempting to testify so as to not give

continuing scheme for these individuals to enter the United

States.

I would finally note that the complaint makes it clear

States, the "guide", whether accompanying them or operating

separately, was only reported as approaching the respondent's
husband for the continuing transportation into the interior of
the United States rather than anywhere else, that there were a
group of people from disparate locations in Mexico, hinting
indicating that they were specifically gathered for further
transportation into the interior, and that the respondent and
her husband pled guilty to knowing that there was going to be
remuneration involved.

I conclude that the lack of credible

evidence from the respondent and the documentary evidence

(Exhibits 2, 3 and 4) presented by the Government are sufficient
to establish the respondent's removability under Section
237(a) (1) (E) (i) of the Immigration and Nationality Act by clear
and convincing evidence.
The respondent has presented an application for adjustment
of status.

In that application (Exhibit 3) the burden of proof,

in fact, shifts.

While it is the Government's burden to

demonstrate any charge of removal by clear and convincing

evidence (which would include that the respondent, as she
testified, entered or crossed into the United States on January
21, 2005), it is the respondent's burden in an application for
adjustment of status to demonstrate admissibility to the United

A076-824-333

February 7, 2013

Immigrant & Refugee Appellate Center | www.irac.net

that the individual who was bringing the group into the United

States.

Where,
_ _ as here, the respondent has been convicted of

the criminal offense that she pled guilty to (Exhibit 2)

and on

incredibility of her and her husband's explanation and

testimony, and the contemporary information presented that was
created at the time of the incident by the Department of
Homeland Security (Exhibit 4),

I would have to find that the

respondent has not demonstrated that she is admissible to the

United States, but rather that the evidence would indicate that
the respondent is inadmissible under Section 212(a) (6) (E) (i}

of

the Immigration and Nationality Act, and therefore ineligible

for adjustment of status.

I find as fact that the respondent

has not demonstrated by a preponderance of the evidence

admissibility under Section 212(a) (6) (E) (i)

of the fact, and on

that ground the application for adjustment of status will be

denied as the respondent has not demonstrated she is otherwise
admissible to the United States.
There being no other application presented and none known
to the Court, the respondent being ineligible for voluntary
departure as one convicted of an aggravated felony, the
following order shall be entered.
ORDER
I T I S HEREBY ORDERED that the application f9r adjustment of
status under Section 245 of the I mmigration and Nationality Act
be, and is hereby, denied.

A076-824-333

February 7,

2013

Immigrant & Refugee Appellate Center | www.irac.net

the complaint that was filed (Exhibit 3) and given the

IT IS FURTHER ORDERED that the respondent be removed from

the United States to Mexico, the country of nativity and
and the country designated by her on the charge

contained in the Notice to Appear.

Please see the next paqe or electronic siqnature

GARY D.

BURKHOLDER

Immigration Judge

A076-824-333

February 7, 2013

Immigrant & Refugee Appellate Center | www.irac.net

citizenship,

'

'

/Isl/
Immigration

Judge GARY

A076-824-333

5,

BURKHOLDER

2013 at 5:31 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

burkholg on April

D.

February 7,

2013