IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60157

Summary Calendar

MARIO ALBERTO ALONSO FERNANDEZ,

Petitioner

v.

ERIC HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A091 224 695

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

Mario Alberto Alonso Fernandez, a native and citizen of Mexico, seeks a

petition for review of the order of the Board of Immigration Appeals (BIA)

ordering his removal under § 237(a)(1)(E)(i) of the Immigration and Nationality

Act (INA), 8 U.S.C. § 1227(a)(1)(E)(i), as an alien who knowingly encouraged,

induced, assisted, abetted, or aided another alien to enter or try to enter the

United States; and under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as

United States Court of Appeals

Fifth Circuit

F I L E D

April 14, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 10-60157 Document: 00511445542 Page: 1 Date Filed: 04/14/2011
No. 10-60157

an alien convicted of aggravated felony, specifically,transporting undocumented

aliens within the United States.

At a hearing on the charges, Alonso, an associate of Alonso’s, and an

Immigrations and Customs Enforcement agent testified regarding Alonso’s

involvement in the transportation of several illegal aliens to and within the

United States. The testimony showed that Alonso participated in a plan to

transport a group of aliens in Mexico almost to the border with the United

States, cross into the United States without the aliens, rejoin the aliens at a gas

station just within the United States border, and then assist the aliens travel

further within the United States. Alonso argues that the IJ improperly

considered evidence outside of the record of his conviction to sustain the

§ 1227(a)(1)(E)(i) charge. Section 1227(a)(1)(E)(i) “requires only a showing of,

not a conviction of, unlawful presence in the United States and alien smuggling

activities.” Renteria-Gonzalez v. INS, 322 F.3d 804, 817 n.15 (5th Cir. 2002).

Thus,the IJ”s consideration of evidence regarding Alonso’s actual conduct rather

than only evidence of the 1997 offense of conviction was proper. See id.

The IJ and BIA further properly relied upon the evidence of those same

activities to conclude that Alonso was inadmissible under INA § 212(a)(6)(E)(i),

8 U.S.C. § 1182(a)(6)(E)(i). Under § 8 U.S.C. § 1182(a)(6)(E)(i), “Any 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.” As with § 1227(a)(1)(E)(i), the analysis focuses on the actual

conduct rather than on a conviction for a criminal offense. See Soriano v.

Gonzalez, 484 F.3d 318, 319-21 (5th Cir. 2007).

Because Alonso was inadmissible under § 1182(a)(6)(E)(i), he was not

eligible for a waiver under INA § 212(h), 8 U.S.C. § 1182(h), which permits the

waiver of inadmissibility under § 1182(a)(2)(A)(i)(I), (II), (B), (D), and (E).

The petition for review is DENIED.

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Case: 10-60157 Document: 00511445542 Page: 2 Date Filed: 04/14/2011