FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTONIO PEREZ-ARCEO,

Petitioner,

v.

LORETTA E. LYNCH, Attorney

General,

Respondent.

No. 12-70635

Agency No.

A091-704-485

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted March 18, 2016

San Francisco, California

Filed May 12, 2016

Before: John T. Noonan, Ronald M. Gould,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Gould
2 PEREZ-ARCEO V. LYNCH

SUMMARY*

Immigration

The panel granted Antonio Perez-Arceo’s petition for

review of the Board of Immigration Appeals’ decision finding

him removable for participating in an attempt to smuggle his

wife’s mother and sister-in-law into the United States.

The panel held that the BIA erred in failing to address the

Immigration Judge’s seemingly inconsistent credibility

findings. The panel also held that the IJ erred in failing to

make an explicit finding that Perez-Arceo engaged in “an

affirmative act of help, assistance, or encouragement” of

smuggling, as this court’s case law requires. The panel

remanded on an open record for the IJ to reconsider his

ruling, provide further explanation, and engage in further

factfinding if necessary.

COUNSEL

Jorge I. Rodriguez-Choi, Oakland, California, for Petitioner.

Ada E. Bosque, Yamileth Davila, and Ashley Martin

(argued), Office of Immigration Litigation, United States

Department of Justice, Washington, D.C., for Respondent.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
PEREZ-ARCEO V. LYNCH 3

OPINION

GOULD, Circuit Judge:

Antonio Perez-Arceo petitions for review of a decision of

the Board of Immigration Appeals (BIA) finding him

removable under 8 U.S.C. § 1182(a)(6)(E)(i). That statute

provides 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.” Antonio was charged as removable

along with his son Juan and his wife Micaela for allegedly

participating in an attempt to smuggle Micaela’s

undocumented sister-in-law and mother into the United States

in a van. The Immigration Judge (IJ) held a joint hearing in

which all three testified that Micaela was solely responsible

for the smuggling attempt. But while the IJ found Micaela

credible, the IJ also found Juan and Antonio’s testimony not

credible, and the IJ held that all three were removable.

We grant Antonio’s petition for review. The BIA did not

address the IJ’s seemingly inconsistent credibility findings. 

Nor did the IJ make a finding that Antonio engaged in “an

affirmative act of help, assistance, or encouragement” of

smuggling as our case law requires for a violation of

§ 1182(a)(6)(E)(i). Altamirano v. Gonzales, 427 F.3d 586,

592 (9th Cir. 2005). We remand on an open record for the IJ

to reconsider his ruling, provide further explanation, and

engage in further factfinding if necessary.

I

Antonio Perez-Arceo is a Mexican citizen who became a

legal permanent resident of the United States in 1986. His
4 PEREZ-ARCEO V. LYNCH

wife Micaela Perez de Pacheco and his son Juan PerezPacheco were also legal permanent residents. In early June

2004, the family drove from the United States to Mexico to

take Antonio’s ill daughter to the doctor. On June 6, 2004,

the family attempted to return to the United States in a van

through the port of entry in Otay Mesa, California. Juan was

driving the van and Antonio was in the front passenger seat. 

Micaela sat in the far back row with her mother Maria Garcia

and her sister-in-law Maria Rodriguez. Antonio and

Micaela’s other children were in the middle row. The

family’s ride to the border from the home where they had

been staying in Mexico lasted 20–30 minutes.

When the family reached the port of entry, Border Patrol

suspected that Garcia and Rodriguez “were not the rightful

owners of the documents they presented,” and the van was

held for inspection. Antonio, Juan, and Micaela were each

interviewed separately by a Border Patrol officer. Antonio

told Border Patrol that he knew Garcia and Rodriguez did not

have the proper documents to enter the United States, but he

“did not realize they were in the vehicle till he woke up while

being in line to cross the border.” When he realized the

undocumented women were in the van, he “got into an

argument with his wife and son,” but he did not leave the van

“because it was to [sic] late and he was near the officers [sic]

booth.”

Micaela told Border Patrol a similar story. Micaela

explained that “she made arrangements with her brother” to

smuggle Garcia and Rodriguez into the United States and
PEREZ-ARCEO V. LYNCH 5

“her husband [Antonio] had no idea.”1 She further stated that

she “paid a lady” $150 to get documents for her mother and

sister-and-law to cross the border. She stated that she

“regret[ted] doing it” and would “never do it again.”

When Juan was questioned at the border, he told a

different story. He said that Antonio made the arrangements

to bring Rodriguez and Garcia into the United States. And he

said that Juan’s uncle was going to pay Antonio $1500 for the

service. Juan stated that Antonio gave Rodriguez and Garcia

false immigration documents to use at the border.

Juan, Antonio, and Micaela were each charged with

removability for smuggling under 8 U.S.C.

§ 1182(a)(6)(E)(i), and the proceedings were consolidated. 

On March 19, 2007, Juan submitted an affidavit under oath

stating,

I retract the statements made to the

Immigration Officer on or about June 6, 2004

at the border inspection point in Otay Mesa. 

I was driving the van, but when I was

interviewed by the immigration officer, I was

scared. Isaw mymother holding the children,

and was afraid what would happen to my two

younger sisters and younger brother, if the

1 Micaela’s I-213 form summarizing this interview was admitted into

evidence at the joint hearing with Antonio, Micaela, and Juan, but it was

not included in Antonio’s Certified Administrative Record on appeal. We

located this document in the Certified Administrative Record for Juan and

Micaela’s petitions for review, Ninth Circuit No. 12-73202, which were

dismissed in 2013. Although the I-213 form was not in the CAR for

Antonio’s appeal, the IJ had it before him when making a decision on all

three cases at the same hearing.
6 PEREZ-ARCEO V. LYNCH

Immigration [Officer] detained my mother.

Out of panic and fear I said that it was my

father who made the arrangements. I did not

want my younger sisters to be without a

mother.

I did not participate in the making of any

plans to smuggle Mrs. Garcia and Mrs.

Rodriguez to the United States. The one who

made all the arrangements was mymother and

her brother. My mother agreed with her

brother that her brother would pay my mother

$1,500. . . . I was aware that Mrs. Garcia and

Mrs. Rodriguez were in the car. However, it

was my mother who asked them to get in the

van.

Juan reiterated, “I am certain that my father was not involved

in making the arrangements.”2

The IJ held a joint hearing for Antonio, Micaela, and Juan

on October 22, 2009. One attorney represented all three

respondents. The government initiallynoted that Micaela had

conceded removability. Juan then testified and explained that

his mother had arranged for smuggling Garcia and Rodriguez. 

He testified that his March 2007 statement implicating his

mother was accurate; he claimed to have lied during his June

2006 interview when placing the blame on Antonio because

the Border Patrol had threatened to take the children away

from Micaela if he did not implicate someone.

 

2

 Juan’s I-213 form and retraction letter were also erroneously omitted

from Antonio’s Certified Administrative Record. See note 1, supra.
PEREZ-ARCEO V. LYNCH 7

Antonio then testified consistent with his I-213 postdetention statements, explaining that the smuggling was his

wife’s idea and that he had no knowledge of it until they were

near the border. Antonio testified that he had been drinking

the night before and first learned that the women were in the

backseat right before reaching the border when they “were

passing the documents” to present to Border Patrol and he

said “oh my God, why so many?” That, according to

Antonio’s testimony, is when he “turned around and saw”

Garcia and Rodriguez in the far back row of the van; he had

not heard them speak during the trip. Antonio surmised that

his wife had not told him about the women in the backseat

because she had pitched a smuggling plan to him two months

earlier and he “did not agree.”

The government then rested, and the respondents called

Micaela to the stand. Micaela testified consistent with her I213 that the smuggling had been entirely her idea and

Antonio had no knowledge of it until they neared the border. 

She explained that she had hidden it from him because he had

previously said no when she brought up the idea. Micaela

explained that she had kept the women hidden from Antonio

by seating them in the back row of the van behind the “high”

seats in the middle row. Micaela also echoed Juan’s

testimony that Border Patrol told her they would take her kids

away if she didn’t tell the truth.

The government then called Border Patrol Officer Jesus

Lopez, Jr., who had interviewed all three respondents at the

border. Lopez testified via telephone that he did not

remember this particular case but there was “no possible

way” he had threatened to take anyone’s kids away and he

would “never” ask questions or make statements before

turning on the video recording.
8 PEREZ-ARCEO V. LYNCH

The IJ ruled from the bench on October 29, 2009. The IJ

first held that the burden was on the government to prove

removability by clear and convincing evidence. The IJ

recognized that to prove removability for smuggling, the

government must show an “affirmative act” to attempt or aid

in smuggling beyond mere knowledge. See Altamirano v.

Gonzales, 427 F.3d 586, 592 (9th Cir. 2005). The IJ

concluded that Micaela was removable because of her

testimony that she “obtained the documents and was going to

be paid $1,500 by her brother” to smuggle her sister-in-law

and mother into the United States. The IJ also relied on

Micaela’s admission of guilt in her I-213 form. The IJ then

turned to Juan and found that his “affirmative act” was

driving the van and handing Rodriguez and Garcia’s

documents to the immigration officials, as well as making a

false statement to Border Patrol regarding Rodriguez and

Garcia’s intended length of stay.

Finally, the IJ addressed the issue of Antonio’s

removability and stated that he did not believe Juan’s

changed story that absolved Antonio of guilt, nor did he

believe Antonio’s testimony. The IJ pointed to five apparent

inconsistencies to support his negative credibility

determinations about Juan and Antonio’s testimony. First,

the IJ reasoned that Antonio said that he was going to Mexico

to take his son to the doctor, but Juan and Micaela said they

went for a daughter. Second, the IJ said that Juan testified

that he and Antonio talked in the van on the way to the

border, but Antonio testified that they did not. Third, Micaela

and Juan both testified that they were threatened with the

kids’ removal if they did not blame someone, but the IJ

credited the Border Patrol Officer’s testimony that he would

“never say that in any case.” Fourth, the IJ noted that Juan

claimed to have “made . . . up” the $1500 smuggling fee in
PEREZ-ARCEO V. LYNCH 9

his statement at the border, but Micaela also stated this same

amount in her interview at the border. Finally, the IJ relied

on an apparent discrepancy that Antonio told Border Patrol

that he was asleep in the van when Garcia and Rodriguez

entered, while Antonio testified that he was the last to enter

the van. The IJ also noted that Antonio had a prior charge of

removability for alien smuggling for which he had received

cancellation of removal under 8 U.S.C. § 1229b(a). In sum,

the IJ believed that it was “not plausible that the mother

would risk her son and husband in this way without their

knowledge,” nor was it “plausible that the father who already

had [a] waiver [from past smuggling charges] would risk his

son and his wife this way without their knowing.”

The BIA dismissed the appeal, ruling that the IJ’s

decision to credit Juan’s “more contemporaneous statements”

at the border, rather than Juan’s retraction and Antonio’s

testimony, was “not clearly erroneous.”

II

When the government charges a lawfully-admitted alien

with removability for smuggling, it “must prove by clear and

convincing evidence that [the respondent] took actions . . .

that amount to ‘knowingly encouraging, inducing, assisting,

abetting, or aiding’ their unlawful entry into the United

States.” Santiago-Rodriguez v. Holder, 657 F.3d 820, 830

(9th Cir. 2011) (alterations omitted) (quoting 8 U.S.C.

§ 1227(a)(1)(E)(i)). “‘[M]ere presence and knowledge’ that

an accompanying alien is attempting to enter the country

illegally” is insufficient. Id. at 833 (quoting Altamirano,

427 F.3d at 592). The charge of alien smuggling “requires an

affirmative act of help, assistance, or encouragement.” Id.
10 PEREZ-ARCEO V. LYNCH

Here, the only record evidence of an “affirmative act” by

Antonio was Juan’s initial statement to Border Patrol that

Antonio made the arrangements to get documents for

Rodriguez and Garcia, and that Antonio was going to receive

money for the service. But in a supplemental letter and his

in-court testimony, Juan disavowed that statement. To find

Antonio removable, the immigration judge had to find Juan’s

second story implicating his mother to be not credible. The

immigration judge also had to find not credible Antonio and

Micaela’s testimony that Micaela was responsible for

arranging the smuggling and procuring the false documents.

We review an immigration judge’s credibility

determination for substantial evidence. Shrestha v. Holder,

590 F.3d 1034, 1039 (9th Cir. 2010).3Immigration judges

must consider the “totality of the circumstances, and all

relevant factors,” including inconsistencies and falsehoods. 

Id. at 1040. Inconsistencies need not “‘go to the heart’ of the

petitioner’s claim to form the basis of an adverse credibility

3

It is not clear whether the provisions of the REAL ID Act that govern

credibility determinations in removal proceedings, 8 U.S.C.

1229a(c)(4)(C), apply to this case because it is unclear whether Antonio’s

motion to terminate proceedings is an “[a]pplication[] for relief from

removal” within the meaning of the statute. Compare, e.g., Matter of

ManuelaNorma Mendiola-Salgado, 2009 WL773177, *1 (B.I.A.Feb. 27,

2009) (unpublished) (suggesting that it is) with, e.g., Matter of George

Araujo-Malagon, 2009 WL 4899061, *1 (B.I.A. Nov. 30, 2009)

(unpublished) (suggesting that it is not) and 8 C.F.R. § 1240.8(d)

(suggesting that applications for relief are claims on which the alien bears

the burden of proving he should not be removed because he is entitled to

a “benefit or privilege”). As our result in this case is the same whether or

not the REAL ID Act provisions apply, we do not reach this question. We

will assume the REAL ID Act applies here because even under its more

deferential standards, the IJ’s decision is not supported by substantial

evidence.
PEREZ-ARCEO V. LYNCH 11

determination.” Id. at 1043. But “trivial inconsistences that

under the total circumstances have no bearing on a

petitioner’s veracity should not form the basis of an adverse

credibility determination.” Id. at 1044.

III

Antonio contends that the immigration judge erred in

concluding that there were sufficient discrepancies to

discredit Juan and Antonio’s testimony that Antonio did not

participate in the smuggling. The immigration judge relied

on five inconsistences or omissions. Antonio challenges,

while the government defends, each. We conclude that three

of these five alleged problems identified by the IJ were

insufficient or inaccurate and cannot support a negative

credibility determination.

A

First, the immigration judge relied on the inconsistency

that Antonio said they went to Mexico to take his son to the

doctor, but Juan and Micaela both said they went to take his

daughter. The IJ was correct that Antonio’s I-213 states that

Antonio said he went to Tijuana “because he wanted to take

his son to see a doctor.” But like Juan and Micaela, Antonio

also testified that he went to Tijuana to take his daughter to

the doctor. The IJ simply ignored Antonio’s testimony that

his daughter was the sick child. And the government did not

question anywitness about the discrepancybetween the I-213

and the testimony, so we have no explanation for why the I213 says what it does. On the record here, the inconsistency

with Antonio’s I-213 cannot support a negative credibility

finding because the IJ did not ask Antonio about the

inconsistency. See Soto-Olarte v. Holder, 555 F.3d 1089,
12 PEREZ-ARCEO V. LYNCH

1091–92 (9th Cir. 2009) (holding that BIA must inquire about

and consider the respondent’s explanations for

inconsistencies).

Second, the immigration judge relied on a purported

inconsistency that Juan testified that he talked to Antonio in

the van on the way to the border, but Antonio testified that

they did not talk. But it is unclear that there was any

inconsistency at all. The government first asked Antonio,

“And then you got up and you got in the car?” Antonio said

yes. The government then asked if Antonio fell asleep, and

he said he was just leaning on the seat. The government

asked, “Were you talking to your son?” and Antonio

answered, “Pretty much we didn’t exchange words.” The IJ

interpreted this to mean that Antonio and Juan did not speak

at all during the entire trip, but instead, this quoted exchange

could plausibly suggest that they did not speak much but

spoke a little, and it could plausibly refer only to the initial

part of the trip when Antonio had just gotten into the van. In

fact, Antonio had told Border Patrol that he “got into an

argument” with Juan once he discovered Garcia and

Rodriguez were in the vehicle, so clearly his statement

“Pretty much we didn’t exchange words” did not mean they

were silent for the full trip. Juan, on the other hand, was not

asked the same question—Juan was asked the very general

question whether they talked “during the trip,” to which he

responded yes. Juan did not say how much they spoke, i.e.,

whether it was only a few words, which would be consistent

with Antonio’s testimony. And Juan did clarify that they did

not talk about the smuggling, which is what really matters. 

The IJ should not have placed significant weight on this

apparent discrepancy absent development of the testimony to

clarify whether the statements were truly inconsistent. 

Shrestha, 590 F.3d at 1044 (holding that IJ should consider
PEREZ-ARCEO V. LYNCH 13

petitioner’s explanation for a perceived inconsistency to

“shed[] light on whether there is in fact an inconsistency at

all”).

Third, the immigration judge noted that Antonio testified

that he got into the van after Garcia and Rodriguez, but the IJ

said that Antonio’s statement at the border was that he was

asleep in the van when the women entered the van. The IJ

misread Antonio’s border statements in the I-213 form. The

form says that Antonio stated that he “he was asleep when

GARCIA and RODRIGUEZ got into the vehicle.” This does

not, however, necessarily mean that he was asleep in the van. 

The IJ may have made this assumption from the following

sentence in the I-213 form, which indicated that Antonio did

not realize the women were in the backseat until he “woke

up” when the van was near the border. But Antonio’s

statement itself says nothing about where he was asleep when

the women entered the van.

Indeed, other evidence in the record suggests that Antonio

was asleep or otherwise in the house when the women got

into the van. Juan testified that Antonio was asleep when

Garcia arrived at the house, and he explained that when

Antonio got in the front seat of the van fifteen minutes later,

Antonio did not see the two women already in the backseat. 

It is clear from context that Juan was saying Antonio was

asleep in the house. Micaela testified a little differently, but

she was still clear that Antonio was in the house; she stated

that when Antonio “got out of his bedroom, he went into the

bathroom, and that’s when they [Garcia and Rodriguez] got

into the car.” Antonio’s testimony was also consistent on this

point; he testified that he was sleeping in the house, and then

he “got up and . . . got in the car.” We conclude that the IJ’s
14 PEREZ-ARCEO V. LYNCH

reading of the I-213 was erroneous, and that there was no

inconsistency on the timing of entry at all.

B

While the IJ erred in these three respects when

determining that Juan and Antonio were not credible, we

disagree with Antonio that the IJ erred in the two other

respects that Antonio identifies in his brief. One legitimate

reason the IJ gave to support the negative credibility

determinations—though as to Juan, not Antonio—was that he

concluded that Juan and Micaela falsely testified that they

were threatened byBorder Patrol Officer Lopez with removal

of Micaela’s children if they did not blame someone. The IJ

instead gave dispositive weight to Lopez’s testimony that he

would “never” make such a threat in any case, although he

did not remember this specific case. Substantial evidence

supports the IJ’s conclusion that Juan’s and Micaela’s later

testimony that they were threatened by Border Patrol was a

lie or embellishment. When Juan retracted his statement to

Border Patrol in March 2007, he did not say anything about

a threat that his mother’s children would be taken—he

explained only that he had been “afraid what would happen

to my two younger sisters and younger brother, if the

Immigration detained my mother.” He made no suggestion

of a threat.

The second valid reason the IJ gave to discredit Juan was

that it was suspicious that Micaela and Juan had both testified

to the same $1500 smuggling fee even though they claimed

that they never spoke about the fee. Substantial evidence

supports the IJ’s conclusion that Juan was lying that he

“invented” this fee amount because it could reasonably seem
PEREZ-ARCEO V. LYNCH 15

that Micaela and Juan had coordinated this aspect of their

stories.

IV

We need not decide whether the three errors by the IJ in

his reasoning to discredit Antonio and Juan were sufficient by

themselves for us to grant Antonio’s petition for review. 

There is a fundamental contradiction in the IJ’s reasoning that

leads us to grant Antonio’s petition and remand for further

explanation.

As explained above, removability for smuggling requires

the respondent to have taken an affirmative act in the

smuggling attempt. See Altamirano, 427 F.3d at 592. The IJ

here made no explicit finding that Antonio engaged in any

affirmative act—he ruled only that “the Court finds that the

father, Antonio Perez-Arceo was aware of the smuggling.” 

The only evidence in the record that could have supported a

finding of an affirmative act on Antonio’s part is Juan’s

initial statement to Border Patrol that it was Antonio who

made the arrangements to bring Rodriguez and Garcia into

the United States. To credit Juan’s initial statement would

require discrediting Micaela’s testimony and I-213

statements, in which she took sole responsibility for the

smuggling attempt. It would also require discrediting Juan’s

later recantation and Antonio’s testimony, all of which was

consistent with Micaela’s testimony and I-213 statements that

she alone was responsible.

Far from discrediting Micaela’s statements, however, the

IJ explicitly relied on them in ordering her removal, holding

that “through [Micaela’s] testimony and information in the I213 in her case, the Department of Homeland Security has
16 PEREZ-ARCEO V. LYNCH

met their burden by proving by clear and convincing evidence

both the allegations and that charge, and I will sustain both.” 

Yet when it came to Antonio’s case, the IJ ignored Micaela’s

testimony and I-213 stating that she was the sole guilty party

and that Antonio “had no idea” she made the smuggling

arrangements. The IJ instead found Antonio responsible

without explaining this inconsistency at all.

When an IJ makes seemingly inconsistent findings with

respect to an adverse credibility determination, it is necessary

to remand the record for more factfinding and clarification. 

Stated another way, absent a sufficient explanation, the IJ in

this case could not credit one part of the witness Micaela’s

testimony to remove her, while at the same time discrediting

the same part of her testimony to remove Antonio. See

Shrestha, 590 F.3d at 1043 (explaining the IJ must give

“cogent reasons” for credibilitydeterminations); Soto-Olarte,

555 F.3d at 1094 (explaining general rule to remand for

further explanation when adverse credibility determination is

flawed); cf. Arthur R. Miller, 9C Fed. Prac. & Proc. Civ.

§ 2579 n.9 (3d ed. 2016) (“Factual findings that are internally

inconsistent . . . are clearly erroneous.”).

In sum, the IJ’s conclusion that Antonio was complicit in

the smuggling attempt required more than a determination

that Antonio and Juan were untruthful in laying sole

responsibility on Micaela. The IJ also needed to explain why

Micaela’s I-213 and testimony were not credible. Instead, the

IJ actually credited Micaela’s testimony and I-213 in which

she took responsibility for the smuggling attempt. A negative

credibility determination must be supported by “specific and

cogent reasons,” Shrestha, 590 F.3d at 1042, but the IJ did

not give any reasons undermining Micaela’s statements that

she took responsibility for arranging the smuggling efforts
PEREZ-ARCEO V. LYNCH 17

and procuring false documents. The IJ cannot “cherry pick

solely facts favoring an adverse credibility determination

while ignoring facts that undermine that result.” Id. at 1040. 

The IJ’s failure to discuss Micaela’s testimony and I-213 and

why Micaela was not credible requires us to remand for

further explanation.4

V

We grant Antonio’s petition for review and remand on an

open record for further proceedings in accordance with this

opinion. See Soto-Olarte, 555 F.3d at 1094–96.

GRANTED and REMANDED.

4 The IJ may have thought that all family members knew about the

attempt to smuggle Garcia and Rodriguez into the United States. But

whether or not the evidence supports this speculation, this finding is

insufficient to sustain the charge against Antonio because mere knowledge

of the smuggling attempt is insufficient for removability under

§ 1182(a)(6)(E)(i). See Altamirano, 427 F.3d at 592. As mentioned

before, the IJ made no explicit finding that Antonio engaged in any

affirmative act, instead ruling only that “the Court finds that the father,

Antonio Perez-Arceo was aware of the smuggling.”