Pablo Estrada Iniguez v. ERIC H. HOLDER, Jr., Attorney General

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PABLO ESTRADA INIGUEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 06-75068
Agency No. A095-316-016
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 3, 2010
Pasadena, California
Before: B. FLETCHER and PAEZ, Circuit Judges, and WALTER, Senior District
Judge.**
Pablo Estrada Iniguez (“Estrada”), a native and citizen of Mexico, seeks
cancellation of removal on the ground that removal would be an “exceptional and
FILED
JUN 01 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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extremely unusual hardship.” 8 U.S.C. § 1229b(b)(1)(D). We remand for further
proceedings.
The Immigration Judge (IJ) indicated that he found removal to be an
exceptional and extremely unusual hardship for Estrada’s citizen family members,
but declined relief because he found that Estrada was a “smuggler” under 8 U.S.C.
§ 1182(a)(6)(E)(i). He thus lacked “good moral character,” making him ineligible
for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(B). See 8 U.S.C. §
1101(f)(3). On appeal, the Board of Immigration Appeals (BIA) agreed that
Estrada lacked “good moral character.” Estrada now seeks review of the BIA’s
decision, arguing that substantial evidence does not support the agency’s decision.
We have jurisdiction under 8 U.S.C. § 1252(a)(1) and “review for substantial
evidence a finding of statutory ineligibility . . . based on a lack of good moral
character.” Ramos v. INS, 246 F.3d 1264, 1266 (9th Cir. 2001).
To qualify as a “smuggler,” Estrada must have “knowingly . . . encouraged,
induced, assisted, abetted or aided” the unlawful entry of Francisco, his Mexican
citizen brother, into the United States. 8 U.S.C. § 1182(a)(6)(E)(i) (emphasis
added). The only evidence that is more than supposition in the entire record is
Estrada’s statement that he lent money to his brother upon his brother’s request for
money to come to this country. But when asked what Francisco did with the

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1 Although it does not affect our decision, we note that there is no evidence
that Francisco actually used Estrada’s money rather than his own to travel to and
enter this country.
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money Estrada lent him, Estrada answered, “Well, he asked me if I could lend him
money for him to come to this country, so I don’t know.” Estrada said, in explicit
and unmistakable language — “I don’t know” — that he lacked knowledge of how
Francisco would use the money to come to the United States. Because the IJ never
found Estrada incredible, it was simply contrary to the evidence to find that the
element of knowledge was satisfied.
There is no evidence that Estrada knew Francisco would enter or try to enter
the country illegally. There has been no showing that Estrada knew Francisco
would not obtain, let alone not try to obtain, proper documentation before his
entry. When asked what he understood at the time of the loan, Estrada’s testimony
showed that he did not know that Francisco would enter the country illegally, and
at the time could only speculate. The brothers never spoke about how Francisco
would enter.1
Substantial evidence does not support the finding that Estrada is a
“smuggler” under 8 U.S.C. § 1182(a)(6)(E)(i), and therefore lacks “good moral
character” under 8 U.S.C. § 1101(f)(3). Because the IJ concluded that Estrada
established the requisite hardship under 8 U.S.C. § 1229b(b)(1)(D), and because

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the government did not challenge this determination before the BIA, this issue
shall be deemed conclusively established. Cf. Tokatly v. Ashcroft, 371 F.3d 613,
618 (9th Cir. 2004). We grant the petition and remand for the agency to determine
whether Estrada has satisfied the remaining eligibility requirements for
cancellation of removal, and, if so, to exercise its discretion on whether to grant
this relief.
PETITION GRANTED; REMANDED.

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Estrada Iniguez v. Holder, No. 06-75068
WALTER, Senior District Judge, dissenting.
I respectfully dissent. Although the record is limited, a review of the available
testimony leads me to conclude that the Petitioner had the requisite knowledge that
the funds he sent to his brother in Mexico would be used to “aid and abet” his
brother’s illegal entry into the United States.
Petitioner is eligible for cancellation of removal proceedings only if he carries
the burden of demonstrating that, among other things, he has “good moral character.”
8 U.S.C. § 1229b(b)(1)(B); 8 C.F.R. § 1240.8. To be of “good moral character” the
Petitioner must not be a member of any of the classes of persons referenced by 8
U.S.C. § 1101(f)(3). One such class includes “any alien who at any time knowingly
has encouraged, induced, assisted, abetted, or aided any other alien to enter or try to
enter the United States in violation of the law.” Id. § 1182(a)(6)(E)(i). This class, as
defined by the statute, is not limited to the criminal coyote smuggler who profits from
human trafficking. It also encompasses any individual who knowingly provides aid
or assistance to facilitate an alien’s unlawful entrance into the United States, even if
the affirmative act is as seemingly minor as providing financial assistance. See Urzua
Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. 2007).
There is sufficient evidence in the record to conclude that Petitioner knowingly
assisted his brother in illegally entering the United States. During Petitioner’s
FILED
JUN 01 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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hearing, he was asked specifically if he knew what his brother planned to do with the
money. Petitioner answered, “Well, he asked me if I could lend him money for him
to come to this country, so I don’t know.” The fact that Petitioner conditioned his
answer with the phrase “I don’t know” does not change the analysis or negate the fact
that Petitioner plainly stated that his brother asked him for money to illegally enter the
United States.
Petitioner’s brother asked for money to help with his crossing, which Petitioner
provided. Further, the Petitioner admitted that he knew his brother lacked the proper
documents to legally enter the United States. Finally, his brother did in fact arrive in
the United States and lived with the Petitioner for some period of time. Based on
these facts the Immigration Judge determined, and the BIA affirmed, that Petitioner
aided and abetted his brother in illegally entering the United States, making him
inadmissible and lacking “good moral character.” This Judge cannot say that the
record compels a contrary result as substantial evidence supports this factual finding.
See INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). I would deny the petition
for review.

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