NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODOLFO ARTEAGA-GODINEZ, 

Petitioner, 

 v. 

JEFFERSON B. SESSIONS III, Attorney 

General, 

Respondent. 

No. 12-70882 

Agency No. A044-544-251 

ORDER and 

MEMORANDUM *

BRENDA TORRES-PONCE, 

Petitioner, 

 v. 

JEFFERSON B. SESSIONS III, Attorney 

General, 

Respondent. 

No. 12-70981 

Agency No. A077-321-968

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted June 12, 2017**

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Government’s unopposed motion to consolidate these two appeals, 

appearing at docket number 30 in case number 12-70882 and docket number 42 in 

FILED

JUN 16 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.

Rodolfo Arteaga–Godinez (“Arteaga”) and his wife, Brenda Torres–Ponce 

(“Torres”), are Mexican nationals and lawful permanent residents in the United 

States. On July 6, 2006, Arteaga and Torres attempted to enter the United States with 

a third Mexican national, Maria Olicema–Hernandez (“Olicema”), who was not a 

lawful permanent resident but who presented Torres’s mother’s lawful permanent 

resident card to immigration agents. The agents determined that the card did not 

belong to Olicema and arrested her, Arteaga, and Torres. Arteaga and Torres were 

later charged with removability under 8 U.S.C. § 1182(a)(6)(E)(i) for

“knowingly . . . assist[ing] . . . [an]other alien to enter . . . the United States in 

violation of law.”

Before an immigration judge (“IJ”), Arteaga conceded his removability and 

petitioned for cancellation of removal under 8 U.S.C. § 1229b(a).

1 The IJ concluded 

that Arteaga met the requirements for relief under § 1229b(a), but the IJ nonetheless 

 

case number 12-70981, is GRANTED. The panel unanimously finds these cases

suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). These cases

are ordered submitted as of June 12, 2017. 

1 Section 1229b(a) provides that “[t]he Attorney General may cancel removal 

in the case of an alien who,” inter alia, “has been . . . lawfully admitted [to the United 

States] for permanent residence for not less than 5 years” and “has resided in the 

United States continuously for 7 years.” (emphasis added)
3 

denied Arteaga’s petition “as a matter of discretion.” Arteaga appealed the IJ’s 

decision to the Board of Immigration Appeals (“BIA”), and the BIA affirmed.

Arteaga now petitions for review of the BIA’s decision affirming the IJ’s 

denial of his application for cancellation of removal. He also petitions for review of 

the BIA’s denial of his motion to remand his case for reconsideration in light of our 

decision in de Rodriguez–Echeverria v. Mukasey, 534 F.3d 1047 (9th Cir. 2008). 

We dismiss Arteaga’s petition for lack of jurisdiction in part, and we deny his 

petition in part.

Before a different IJ, Torres contested her removability under 8 U.S.C. 

§ 1182(a)(6)(E)(i), and filed two motions to terminate her removal proceedings. The 

IJ denied both motions and ordered Torres removed to Mexico, and the BIA affirmed 

the IJ’s decision and order. In a separate appeal, Torres petitions for review of the 

BIA’s decision affirming the IJ’s decision and removal order in her case. We deny 

Torres’s petition for review. 

I. Arteaga’s Petition for Review

1. We lack jurisdiction to review the BIA’s decision in Arteaga’s case

insofar as it affirms the denial of Arteaga’s application for cancellation of removal

under 8 U.S.C. § 1229b(a). See 8 U.S.C. § 1252(a)(2)(B) (“[N]o court shall have 

jurisdiction to review [] any judgment regarding the granting of relief under . . . [8 
4 

U.S.C. §] 1229b.”). In reviewing such a decision, we have jurisdiction to decide only 

“constitutional claims or questions of law.” Id. § 1252(a)(2)(D). 

The BIA did not commit legal error in affirming the IJ’s denial of Arteaga’s

application. First, the IJ’s adverse determination as to Arteaga’s credibility was not 

based on “trivial inconsistencies that under the total circumstances have no bearing 

on [Arteaga’s] veracity.” Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010). 

When he was first arrested, Arteaga told immigration agents that his wife had 

planned the July 6, 2006 smuggling attempt and had solicited his help. Then, before 

the IJ, Arteaga testified that he had planned the smuggling attempt as a favor to 

Olicema’s brother, who was a coworker of his. Far from being “utterly trivial,” id.

at 1043, the IJ reasonably concluded that this inconsistency demonstrated that 

Arteaga was “willing to . . . manipulate the truth in order to obtain a perceived 

advantage for his wife’s case.” The IJ also reasonably determined that the 

inconsistency undermined Arteaga’s credibility with regard to certain claims 

otherwise favoring cancellation of removal—such as his son’s alleged asthma and 

his mother’s alleged limited mobility—which were supported only by Arteaga’s own 

testimony.

Nor did the IJ fail to “provide a specific and cogent reason for rejecting” 

Arteaga’s explanation for the inconsistencies between his testimony and his prior 

statements to immigration agents. Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 
5 

2011). Arteaga testified that Torres had initially told him to “blame everything on 

[her],” and that he had done so in his interview with immigration agents. Before the 

IJ, however, Arteaga stated that “it was wrong” to blame his wife when in fact “[he] 

was the one who did everything,” and so he gave the true version of events in his 

testimony.

The IJ provided a “cogent reason” for rejecting this explanation: Arteaga 

claimed that Torres had told him the fabricated story that they both later told 

immigration agents “while they were both detained in a holding cell with many other 

people,” seated ten to twelve feet from one another, during brief intervals when they 

“pass[ed] the[ir] child back and forth between [them] to make the child stop crying.”

The IJ found it “very difficult to believe that somebody would be able to transmit a 

story so rich in detail and be able to later on narrate it with all the details if it was 

told in such a manner.” Instead, the IJ thought it more likely that Arteaga was “trying 

to protect his wife,” who was “not eligible for cancellation” under § 1229b and who 

was “claiming that . . . she was not culpable” for the smuggling attempt.

2. The BIA also properly denied Arteaga’s motion to remand. Arteaga 

argues that the statements he made to immigration agents after his arrest were 

inadmissible in his immigration proceedings because he was never “advised 

of . . . [his] right to be represented” or warned that “any statement made may be used 

against him . . . in a subsequent proceeding,” as required by 8 C.F.R. § 287.3(c). See 
6 

id. (requiring immigration agents to notify an alien of these procedural rights after

the alien has been “arrested without warrant and placed in formal [removal] 

proceedings”). Arteaga’s motion relied on our decision in de Rodriguez–Echeverria, 

in which we held that an alien is “arrested” within the meaning of section 287.3(c) 

when his “freedom . . . to walk away” is “restrained.” 534 F.3d at 1051. Because de 

Rodriguez–Echeverria was decided after Arteaga’s immigration proceedings 

concluded, Arteaga argues that the BIA should have remanded his case to the IJ for 

further consideration. We review the BIA’s denial of a motion to remand for abuse 

of discretion. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005).

The BIA did not abuse its discretion by denying Arteaga’s motion to remand. 

Immigration agents questioned Arteaga after he was “arrested without warrant,” but 

before he was served with a Notice to Appear (“NTA”) for removal proceedings. 

Thus, regardless whether Arteaga was “arrested” within the meaning of 

section 287.3(c) at the time of questioning, Arteaga had not yet been “placed in 

formal proceedings,” and the agents’ obligation to notify Arteaga of his rights under 

section 287.3(c) had not yet attached. See Samayoa–Martinez v. Holder, 558 F.3d 

897, 901 (9th Cir. 2009) (“Formal removal proceedings do not commence until 

[immigration agents] ha[ve] filed an NTA in the immigration court.”).
7 

II. Torres’s Petition for Review

Torres urges three grounds for granting her petition for review. First, like 

Arteaga, Torres argues that her statements to immigration agents were inadmissible 

in her removal proceedings because they were taken in violation of 8 C.F.R. 

§ 287.3(c). Second, she claims that substantial evidence did not support the IJ’s 

determination that she “knowingly” participated in the July 6, 2006 smuggling 

attempt. Finally, she argues that she was denied due process when the government 

failed to make “reasonable efforts” to make the immigration agents who interviewed 

her available for cross-examination in her removal proceedings.

“Where, as here, the BIA has reviewed the IJ’s decision and incorporated 

portions of it as its own, we treat the incorporated parts of the IJ’s decision as the 

BIA’s.” Molina–Estrada v. I.N.S., 293 F.3d 1089, 1093 (9th Cir. 2002). We review 

for “substantial evidence” the BIA’s and IJ’s “[f]indings of fact, such as whether an 

individual engaged in alien smuggling.” Gonzaga–Ortega v. Holder, 736 F.3d 795, 

800 (9th Cir. 2013). Legal questions are reviewed de novo. Id.

1. Torres’s argument that she was denied her procedural rights under 8 

C.F.R. § 287.3(c) fails for the same reason as Arteaga’s: An alien’s rights under that 

section do not attach until the alien has been “arrested without a warrant and placed 

in formal [removal] proceedings.” Id. (emphasis added). Because Torres was 

interviewed on July 6, 2006, and her NTA was not filed until four days later,
8 

section 287.3(c) did not apply to her at the time of her interview. See Samayoa–

Martinez, 558 F.3d at 901.

2. Substantial evidence supported the IJ’s conclusion that Torres knew of 

(and in fact orchestrated) the July 6, 2006 smuggling attempt. This evidence included 

Torres’s statements to immigration agents in which she stated that “she made the 

arrangements to smuggle Olicema into the United States” and that “she acquired her 

mother’s resident alien card in order to provide it to Olicema to use it to enter the 

United States.” Indeed, Torres does not dispute that her statements support the IJ’s 

conclusion. Instead, she simply argues that her “entirely plausible” alternative 

account should have been afforded more weight.2 Because Torres fails to 

demonstrate that “any reasonable adjudicator would be compelled to conclude” that, 

contrary to the IJ’s and the BIA’s finding, Torres’s later story was in fact the true 

one, 8 U.S.C. § 1252(b)(4)(B), we decline to grant her petition on this second 

ground. 

3. Finally, Torres was not denied “a reasonable opportunity to confront 

the witnesses against . . . her.” Hernandez–Guadarrama v. Ashcroft, 394 F.3d 674, 

681 (9th Cir. 2005) (quoting Saidane v. I.N.S., 129 F.3d 1063, 1065 (9th Cir. 1997)). 

 

2 Though Torres claims that her statements were “coerced,” she does not argue 

that they were obtained in violation of the Fifth Amendment’s Due Process Clause. 

See Gonzaga–Ortega, 736 F.3d at 804. Thus, any such argument is waived. 

Martinez–Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996) (“Issues raised in a 

brief that are not supported by argument are deemed abandoned.”).
9 

The government stated on the record before the IJ that it was willing to “get all of 

the officers . . . that were involved in the incident to testify” in her removal 

proceedings. But Torres never actually called any of those officers to testify. Thus, 

Torres was afforded “a reasonable opportunity” to cross-examine the officers, id.

(emphasis added), and her failure to take advantage of that opportunity did not 

amount to a violation of her statutory or due-process rights.

III. Conclusion

Insofar as Arteaga’s petition seeks review of the BIA’s decision affirming the 

IJ’s denial of his application for cancellation of removal, the petition is 

DISMISSED. Insofar as Arteaga’s petition seeks review of the BIA’s denial of his

motion to remand, it is DENIED. Torres’s petition for review is DENIED.
1

Arteaga-Godinez v. Sessions, No. 12-70882

Torres-Ponce v. Sessions, No. 12-70981

Pregerson, J., dissenting:

I dissent. I wish to make two points concerning the unfairness of our 

immigration laws in the case before us.

First, this case reveals the inequity of our court’s cramped interpretation of 

8 C.F.R. § 287.3(c). Under that regulation, noncitizens arrested without warrant by 

an immigration officer are required to receive Miranda-like advisals. However,

our court has held that the right to receive those advisals attaches only after a 

Notice to Appear has been filed in an immigration court. See Samayoa-Martinez v. 

Holder, 558 F.3d 897, 901 (9th Cir. 2009). This rule was brought to bear on 

petitioners Rodolfo Arteaga-Godinez and Brenda Torres-Ponce, as they were 

detained and interrogated without advisals several days before the government 

filed a Notice to Appear. The statements obtained during those interrogations were 

then used against the petitioners in their removal proceedings.

In a case like this, the initial interrogation—which usually occurs before the 

government has filed a Notice to Appear—is often the only interrogation. If a 

detainee is not read his or her rights before that interrogation, the Miranda-like 

advisals from § 287.3(c) are rendered meaningless. After all, what is the use of

warning a person that “any statement made may be used against him or her” when

the government has already conducted its interrogation, filed a Notice to Appear,

FILED

JUN 16 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

and often has no need to obtain any further incriminating statements? How can 

courts defend a practice that purports to offer noncitizens an important procedural 

right, yet only does so when that right has little, if any, value?

Second, this case is another example of the cruelty with which our

immigration laws tear families apart. Rodolfo came to the United States in 1990 at 

age 9 and became a lawful permanent resident in 1994. Brenda came to the United 

States in 1990 at age 7 and became a lawful permanent resident in 2004. Rodolfo

and Brenda were legally married in September 2001. At the time of their removal 

proceedings, the couple had a United States citizen child, and Brenda was 

pregnant. Rodolfo has consistently worked in construction and aspires to attend 

college to become a welder. Brenda has worked at a medical office and volunteers 

at her son’s school.

Rodolfo and Brenda maintain a close and strong bond with their family in 

the United States. Rodolfo’s mother, three of his brothers, and one sister are all 

permanent legal residents of the United States, and he has another sister who is a 

United States citizen. Brenda’s parents are both lawful permanent residents and 

her brother is a United States citizen. If Rodolfo and Brenda are removed, their 

children will either grow up in the United States without their parents or be 

compelled by circumstances beyond their control to move to a country they do not 

know. I decline to be a party to such an unkind and cruel result.