* Pursuant to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

January 5, 2006

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 05-60267

Summary Calendar

IGNACIA DE JESUS SALAZAR,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

(A76 800 834)

Before BARKSDALE, STEWART, and DENNIS, Circuit Judges.

PER CURIAM: *

Ignacia de Jesus Salazar, a Mexican citizen an d lawful

permanent resident of the United St ates since 2001, was charged

under Immigration and Nationality Act (I NA) § 237(a)(1)(E)(i), 8

U.S.C. 1227(a)(1)(E)(i) (2000), as being removable from the United

States for knowingly encouraging, inducing, assisting, abetting, or

aiding an alien to enter the United States illegally. The

Immigration Judge (IJ) ordered Salazar remov ed from the United2

States, and the Board of Immigration Appeals (BIA) affirmed without

opinion. Salazar seeks review of the removal order.

On 12 July 2003, Salazar’s vehicle, with her driving, was

stopped at a B order Patrol checkpoint; the vehicle contained two

other individuals, a woman and child, who presented false documents

and were determined to be Mexican citizens illegally smuggled into

the United States. Salazar falsely told Border Patrol Agents that

the child was her grandson. Instead, the child was not related to

her but was the smuggled woman’s child; Salazar knew both aliens

were in the United States illegally; Salazar was driving the mother

and child to the woman’s husband and the child’s father in

Colorado; and Salazar was to receive $3000 for doing so.

Arresting Agent Justice comp leted a Form G-166 report,

characterizing this as an alien-smuggling incident. Agent Edberg

completed a Form I-213 Record of Deportable Alien. This report

outlined Salazar’s conduct and recommend ed removal. The Agents

testified at Salazar’s hearing in support of removal and elaborated

on the information provided in Forms G-166 and I-213.

Agent Edberg testified that Salazar was charged and convicted

under 8 U.S.C. § 1001 for making false statements (that the child

was her grandson) to a federal officer. The Department of Homeland

Security (DHS) offered the IJ a facsimile copy of this criminal

conviction; the IJ refused the facsimile copy and continued the

hearing, informing DHS that it needed to provide a certified copy.

At the later hearing on 15 December 2003, after DHS explained it3

could not locate a certified copy of Salazar’s conviction, the IJ

proceeded but said he would not consider this conviction in making

his decision.

At the 15 December hearing, the IJ found Salazar subject to

removal based on her conduct of smuggling two aliens on 12 July

2003. Salazar appealed this decision to the BIA, which affirmed

without opinion.

Salazar raises two issues: (1) whether substantial evidence

supports her removal under INA § 237(a)(1)(E)(i); and (2) whether

the IJ violated Salazar’s Fifth Amendment due process rights.

We normally review only the BIA’s decision, not that of the

IJ. Renteria-Gonzalez v. INS , 322 F.3d 804, 816 (5th Cir. 2002).

Where the BIA summarily affirms the IJ, however, we review the IJ’s

decision. M

oin v. Ashcroft

, 335 F.3d 415, 418 (5th Cir. 2003). We

deny a petition for review “if there is no err or of law and if

reasonable, substantial, and probative evidence on the record,

considered as a whole, supports the decision’s factual findings”.

Id

. Salazar faces a difficult challenge, because “[t]his court

will not reverse a BIA decision unless the petitioner provides

evidence ‘so compelling that no reasonable fact-fi nder could

conclude against it’”. Id. (quoting Carbajal-Gonzalez v. INS , 78

F.3d 194, 197 (5th Cir. 1996)). Further, the IJ’s witness

credibility determinations are accorded “great deference”. E fe v.

Ashcroft

, 293 F.3d 899, 905 (5th Cir. 2002) (“The factfinder has4

the duty to judge the credibility of the witnesses and to make

findings accordingly.”).

First, Salazar chall enges the evidence used by the IJ to

support his decision that Salazar was removable. Salazar asserts

that inaccuracies in her Form I-213 constitute a violation of the

DHS’ own regulations to her detriment. According to Salazar, these

inaccuracies make it unclear who arrested and interviewed her on 12

July 2003, and therefore this information should not be used in

support of removal.

At Salazar’s removal hearing, where Agents Justice and Edberg

testified and were subject to cross-examination, Salazar received

an opportunity to challenge their testimony and the forms they

created under “[n]ormal circumstances”. The Agents explained how

small inaccuracies may result because the forms are filled out from

templates.

Substantial evidence supported the IJ’s decision; both Agents

Justice and Edberg testified to Salazar’s conduct on 12 July 2003

and the information contained in forms they created, and the IJ

concluded that “the credible testimony presented by the agents

here, as well as the reports created at the [time] of the incident

... are sufficient to es tablish by clear and convincing evidence

that [Salazar] was knowingly assisting two illegal aliens to enter

or to try to enter the United States in violation of law”. Salazar

does not overcome this finding, see Moin

, 335 F.3d at 418,5

including the conclusion that the Agents provided credible

testimony. See Efe , 293 F.3d at 905.

Ne xt, Salazar maintains that the IJ violated her Fifth

Amendment due process rights. “Due process challenges to

deportation proceedings require an initial showing of substantial

prejudice.” Anwar v. INS , 116 F.3d 140, 144 (5th Cir. 1997).

Salaz ar appears to challenge the IJ’s decision to admit the

Form I-21 3 because it prejudiced her. Salazar fails to show h ow

the admission of this form prejudiced her; absent such a showing,

this claim fails. I d. ; see also Renteria-Gonzalez

, 322 F.3d at 817

n.16 (“o bserv[ing] that [Form I-213] come[s] within the public

records exception to the hearsay rule”, and also that “the hearsay

rules [do not] apply to deportatio n proceedings in the first

place”).

Salazar then challenges the IJ’s use of a facsimile copy of

her conviction for making false statements under 8 U.S.C. § 1001.

She contends that this prejudiced her, because the IJ cannot

disregard it after seeing a facsimile copy of the document. The

IJ stated he was not using this do cument in making his decision,

twice stating “I’m not going to consider the judgment”. After

announcing his decision, the IJ again stated that this conviction

was “not ... considered in entering the decision by this Court”.

Without this judgment, the IJ had sufficient evidence of

Salazar’s unlawful conduct through the testimony and documents from

the Agents. Further, a conviction of alien smuggling, and6

certainly a false-statement conviction, is not necessar y for

removal; “the INA requires only a showing of, not a conviction of

... alien smuggling activities”. I d. at 817 n.15 (citing 8 U.S.C.

§ 1227(a)(1)(E)(i)); see id. at 810 n.4 (stating that “Section

1227(a)(1)(E)(i)

... does not requires [sic] a criminal conviction

before an alien may be deported for alien smuggling”). Salazar has

not shown substantial prejudice leading to the IJ’s decision, so

she fails to assert a due process violation.

DENIED