FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MODESTA AGUILAR GONZALEZ, 

Petitioner, No. 04-74576

v. Agency No. 

M A47-424-635 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted February 14, 2008

Withdrawn from Submission February 21, 2008

Resubmitted July 29, 2008

Pasadena, California

Filed July 29, 2008

Before: Betty B. Fletcher and N. Randy Smith,

Circuit Judges, and Samuel P. King,* District Judge.

Opinion by Judge B. Fletcher:

Dissent by Judge N.R. Smith

*The Honorable Samuel P. King, Senior District Judge, sitting by designation. 

9619
COUNSEL

Lenore A. Ceithaml, San Diego, California, for the petitioner.

Eric W. Marsteller, U.S. Department of Justice, Civil Division, Washington, D.C., for the respondent.

OPINION

B. FLETCHER, Circuit Judge: 

Modesta Aguilar Gonzalez petitions for review of the

Board of Immigration Appeals’ (BIA) order affirming, in a

streamlined decision, the Immigration Judge’s (IJ) decision

denying her motion to terminate removal proceedings against

her and finding that she is inadmissible under INA § 212(a)(6)

(E)(i), 8 U.S.C. § 1182(a)(6)(E)(i), because she assisted in the

smuggling of two undocumented alien minors into the United

States. She was placed in removal proceedings after she

attempted to enter the United States in a vehicle that carried

two undocumented infants. Earlier that day, Modesta had left

California with her family, knowing that her father planned on

using her U.S.-citizen son’s birth certificate to pass one of the

two infants into the United States. The issue before us is

whether Modesta’s presence and acquiescence in her father’s

plan was sufficient to sustain a finding that she aided and

GONZALEZ v. MUKASEY 9621
abetted an alien to try to enter the United States in violation

of law.1

We have jurisdiction under 8 U.S.C. § 1252 to review a

final order of removal. We hold that Modesta’s mere presence

and acquiescence does not constitute alien smuggling under

INA § 212(a)(6)(E)(i). We therefore grant the petition for

review.

I. Background

Modesta Aguilar Gonzalez, a citizen of Mexico, entered the

United States as a legal permanent resident in 2000 when she

was 19 years old. Her father, Isauro Aguilar Campos, had

petitioned for Modesta, her mother, and her four younger

brothers to come to the United States. Modesta is a single

mother whose son was five months old on the date of the

events at issue here. The entire family lives in a house that

Modesta jointly owns with one of her brothers. Modesta does

not have a criminal record and has had steady employment

since at least October of 2001. 

On October 23, 2003, Isauro approached Modesta and told

her of his plan to bring two undocumented infant relatives

into the United States. He explained to her that he needed to

use her son’s birth certificate for one of the infants, and that

it would be easier to get through inspection if the child’s

“mother” was with them. Twice she refused to accompany

him or provide him with the birth certificate. When he asked

the third time, however, she “reluctantly said yes.” She did

not wish to disappoint him, and was particularly concerned

because her father helps pay the mortgage on her house. The

record does not establish whether Modesta gave her father the

1Modesta also argues that the Department of Homeland Security (DHS)

violated her due process rights by acting in bad faith when they failed to

process her request for prosecutorial discretion. In light of our holding on

the INA § 212(a)(6)(E)(i) claim, we need not reach this issue. 

9622 GONZALEZ v. MUKASEY
birth certificate or whether he took it. She did accompany him

to Mexico, however, and her son’s birth certificate was presented to DHS inspectors on the attempted reentry into the

United States with the infants. 

Isauro borrowed a Chevy Suburban from a relative and

drove to Mexico to pick up the two undocumented infants and

one of Isauro’s U.S.-citizen grandchildren. When they

attempted to reenter the United States, Isauro was driving

with his wife in the front passenger seat. Several other relatives were in the second row, and Modesta was in the third

row, with the undocumented infants on either side of her. As

will be discussed below, there is some dispute over exactly

what happened at primary inspection, but someone presented

the birth certificates to the primary inspection officer who

suspected that the infants were not the rightful owners. As a

result, Isauro and Modesta were referred to secondary inspection where they admitted that the infants were not U.S. citizens. The infants were sent to the Mexican consulate and the

other occupants of the vehicle were fingerprinted and released

into the United States. 

Isauro and Modesta were both charged with alien smuggling and placed in removal proceedings. Isauro was eventually granted cancellation of removal. Modesta, however, was

ineligible for relief from removal because she had resided

lawfully in the United States for only three years. 

At her master calendar hearing, Modesta denied that she

was an arriving alien and that she knowingly assisted in the

attempt to smuggle two undocumented infants into the United

States. She contested removability asserting that she did not

actively engage in the attempt. She further informed the

immigration court of her intent to seek relief through termination of proceedings. 

The government countered that Modesta actively participated in the attempt by presenting the two borrowed United

GONZALEZ v. MUKASEY 9623
States birth certificates to the primary inspecting officer. The

government based this assertion on the contents of Form G166 (Report of Investigation) and Form I-213 (Record of

Deportable/Inadmissible Alien). 

In her motion to terminate, Modesta explained that her participation in the scheme was unwilling, and that she accompanied her father only because she was afraid that he would stop

helping her pay the mortgage on her house if she did not go.

She also claimed that Isauro was the one that presented the

birth certificates to the inspecting officers. In support of this

argument, she pointed to contradictory language in the government’s evidence. Specifically, while Form I-213 stated that

she “presented two U.S. birth certificates on behalf of the

children,” Form G-166 said that “the driver, AGUILARCampos Isuaro presented two State of California Birth Certificates on behalf of the minors.” In its motion in opposition, the

government did not address these contradictions, but instead

insisted that Form I-213 contained sufficient information to

find Modesta removable as charged. 

At her merits hearing, Modesta, through counsel, submitted

an affidavit from Isauro declaring, “It was my idea and mine

alone to cross [the] two children, [Modesta] didn’t want to go

but I insisted and she obeyed me because I am her father.”

She also filed her father’s Form I-213, which stated that he

was the one who presented the two U.S. birth certificates to

the inspecting officer. Additionally, she made an offer of

proof that, if called to testify, she would declare that 

her father approached her and asked her twice if he

could use her son’s birth certificate to bring to the

United States a child named Luis. Both times she

responded, “No.” He asked her again to provide him

with her son’s birth certificate and to accompany

him to Mexico. This third time she reluctantly said

yes so as not to disappoint him. She did so without

realizing the consequences of her actions. She knew

9624 GONZALEZ v. MUKASEY
that her son’s birth certificate would be used to bring

an undocumented infant across the border. She went

with her father and other family members to Mexico

to bring across not only Luis but another undocumented minor. 

On April 14, 2004, the IJ issued a written decision denying

Modesta’s motion to terminate and finding her removable.

His decision was based solely on her offer of proof. Importantly, he did not consider Forms G-166 or I-213 in reaching

his conclusion. The IJ explained that 

Information as to who provides documents to an

inspecting officer is crucial information. Here, it is

unclear as to who provided the birth certificates to

the inspecting officer. When information on authenticated immigration forms have incorrect or contradictory information, the Court cannot rely on them.

Because the respondent has provided evidence to

rebut the presumption of reliability on said documents, the Court will not rely on them to determine

whether she is removable as charged. 

The IJ nevertheless concluded that Modesta had assisted in

alien smuggling by “lending countenance” to the scheme by

lending her son’s birth certificate to her father with knowledge that it would be used to bring an undocumented infant

into the United States. According to the IJ, Modesta’s “presence in the vehicle and acquiesce [sic] in supplying the document to her father for such purpose, is sufficient evidence to

sustain the charge of removability against [her].” 

Modesta appealed to the BIA, which affirmed in a streamlined decision. See 8 C.F.R. § 1003.1(e)(4). In her petition for

review, she argues that the government did not carry its burden of proving that she aided and assisted in alien smuggling

because the government did not establish that she engaged in

any active conduct pursuant to the scheme. Specifically, she

GONZALEZ v. MUKASEY 9625
denies giving the birth certificate to her father, instead insisting that “he knew where she kept it and he took it.” 

II. Standard of Review

The proper standard of review in immigration proceedings

depends on the nature of the decision being reviewed. See

Manzo-Fontes v. INS, 53 F.3d 280, 282 (9th Cir. 1995). Legal

questions concerning the meaning of the immigration laws are

reviewed de novo. Lagandaon v. Ashcroft, 383 F.3d 983, 987

(9th Cir. 2004). The IJ’s factual findings, on the other hand,

are reviewed for substantial evidence. Chavez-Ramirez v. INS,

792 F.2d 932, 934-35 (9th Cir. 1986). Thus the first thing this

court must do is identify whether it is being asked to review

a factual finding or a question of law. 

The only factual findings in this case are that Modesta was

present in the vehicle and that she had lent her son’s birth certificate to her father. The former is not contested. As to the

latter, it is unclear what the IJ meant by “lend.” The IJ did not

say Modesta physically handed the birth certificate to her

father, and she insists that she did not. Critically, her offer of

proof cannot be read as an admission that she handed the birth

certificate to her father; all she says is that on the third time

he asked her for it “she reluctantly said yes.” We therefore

conclude that if the IJ meant that Modesta physically handed

the birth certificate to her father, that finding was not based

on substantial evidence. See Ahmed v. Keisler, 504 F.3d 1183,

1198 (9th Cir. 2007) (noting that where there is no evidence

to support a finding, “it is conjecture and cannot be substituted for substantial evidence” (internal quotation and citation

omitted)). The question presented is therefore whether Modesta assisted in alien smuggling by reluctantly acquiescing in

her father’s use of her son’s birth certificate. We review this

purely legal question regarding the meaning of INA

§ 212(a)(6)(E)(i) de novo. Lagandaon, 383 F.3d at 987. 

9626 GONZALEZ v. MUKASEY
III. Discussion

[1] In Altamirano v. Gonzales, 427 F.3d 586 (9th Cir.

2005), we considered whether mere presence in a vehicle with

knowledge that undocumented aliens were hiding in the trunk

constitutes alien smuggling under INA § 212(a)(6)(E)(i).2 We

held that it does not because the “plain meaning of this statutory provision requires an affirmative act of help, assistance,

or encouragement.” Altamirano, 427 F.3d at 592 (emphasis

added). In support of this conclusion, we also considered the

“well-established meaning of aiding and abetting” in the criminal context, which requires the individual to “associate himself with the venture, that he participate in it as in something

that he wishes to bring about, that he seek by his action to

make it succeed.” Id. at 594 (quoting Nye & Nissen v. United

States, 336 U.S. 613, 619 (1949)). 

Relying on the statutory language and the criminal cases

interpreting aiding and abetting, we concluded that Altamirano did not engage in alien smuggling. Her presence in the

vehicle with knowledge that the other occupants planned to

commit alien smuggling did not constitute an affirmative act,

even though she carried out the “act” of entering the car

knowing that an undocumented alien was hiding in the back.

See id. at 596. We therefore granted the petition for review

and remanded to the IJ with instructions to grant Altamirano’s

motion to terminate removal proceedings against her. Id.

[2] Just as we could not conclude in Altamirano that riding

in a car carrying an undocumented alien was an affirmative

act, we cannot conclude that Modesta engaged in an affirmative act by reluctantly saying “yes” to her father’s repeated

requests to use her son’s birth certificate. It bears repeating

2Although Altamirano was decided after the IJ rendered his decision,

the holding is applicable here because it establishes the proper interpretation of the statute since the statute’s inception. See United States v. City

of Tacoma, 332 F.3d 574, 581 (9th Cir. 2003). 

GONZALEZ v. MUKASEY 9627
that neither Modesta’s proffer nor anything else in the record

establishes that she gave her father the birth certificate. She

merely acquiesced in her father’s decision to use it. Acquiescence is not an affirmative act, however, and as such, Modesta did not assist in alien smuggling. 

IV. Conclusion

[3] The IJ committed legal error by interpreting INA

§ 212(a)(6)(E)(i) to reach cases such as this involving mere

presence and acquiescence. We therefore grant the petition for

review and remand to the IJ with instructions to grant Modesta’s motion to terminate removal proceedings against her. 

PETITION GRANTED.

N.R. SMITH, dissenting: 

There is no doubt that the facts underlying this case are

unfortunate. It is not even a stretch to call them unfair. Modesta’s father, the mastermind and driving force behind the

alien smuggling for which Modesta was charged, was ultimately granted cancellation of removal and allowed to stay in

the United States. Modesta, who reluctantly participated in the

smuggling at the insistence of her father, was ineligible for

such relief and found removable. However, we are not free to

stretch the law to avoid results that we do not like. In my

view, the majority has done so here and I respectfully dissent.

In one respect, the facts of this case nearly mirror those of

Altamirano v. Gonzales, 427 F.3d 586 (9th Cir. 2005). There,

we held that a petitioner’s mere presence in a vehicle with

knowledge of a plan to smuggle an undocumented alien

across the border in the trunk of the vehicle did not constitute

alien smuggling under INA § 212(a)(6)(E)(i). Id. at 595-96.

We held that INA § 212(a)(6)(E)(i) is not violated absent “an

9628 GONZALEZ v. MUKASEY
affirmative act of assistance or encouragement.” Id. at 596.

Like the petitioner in Altamirano, Modesta was present in a

vehicle and had knowledge of her father’s plan to smuggle

two undocumented infants across the border. Modesta even

sat between the infants. This alone, however, was undoubtedly insufficient to constitute alien smuggling. Id. 

However, this case presents facts that Altamirano did not.

In addition to her presence in the vehicle, Modesta allowed

her father to use her son’s birth certificate to smuggle the

undocumented infants. The majority characterizes this agreement as a “reluctant acquiescence” and ultimately holds that

acquiescence is not an affirmative act, as required for alien

smuggling under Altamirano. I disagree. 

I do not necessarily disagree with the majority that acquiescence is not an affirmative act. Legally, acquiescence is

defined as “[a] person’s tacit or passive acceptance” or a person’s “implied consent to an act.” Black’s Law Dictionary

(8th ed. 2004). This definition fits squarely with Altamirano’s

holding that mere presence in a vehicle is not an affirmative

act even if the petitioner has knowledge of the smuggling.

This makes sense. Mere presence in a vehicle with knowledge

of alien smuggling is “tacit or passive acceptance” or “implied consent” to the smuggling, but nothing more. 

I part ways with the majority, however, at the point at

which they characterize Modesta’s actions as “reluctant

acquiescence.” Under this definition, Modesta did not “merely” acquiesce to her father’s use of her son’s birth certificate.

If, for example, Modesta had seen her father take her son’s

birth certificate and said nothing, we could properly characterize her actions as acquiescence because her consent would

have been passive or implied. However, that is not what

occurred. Modesta actively assisted her father by explicitly

agreeing that he could use her son’s birth certificate. Indeed,

her father’s repeated requests demonstrate that, for whatever

reason, he felt that he could not simply take the birth certifiGONZALEZ v. MUKASEY 9629
cate and leave Modesta out of his plan altogether. Rather, he

needed Modesta’s explicit permission before he could use the

birth certificate for purposes of alien smuggling. Thus,

although the majority’s opinion does not explicitly say so, by

holding that Modesta did not commit an affirmative act as

required by Altamirano, the majority implies that an oral

statement alone can never be an affirmative act. I disagree. 

Our analysis in Altamirano focused heavily on the meaning

of aiding and abetting because INA § 212(a)(6)(E)(i) “import[ed] this concept from criminal law and because the alien

smuggling provisions of the INA have been generally analyzed as aiding and abetting statutes.” See 427 F.3d at 594.

We noted that “[t]he prosecution must prove that the defendant was a participant, and not merely a knowing spectator”

and that a person “cannot be convicted of aiding and abetting

absent an affirmative act of assistance in the commission of

the crime.” Id. at 594-95 (internal quotation marks and citations omitted). We did not, however, hold that an oral statement could never constitute an affirmative act of assistance.

Boiled down, aiding and abetting merely requires that the

defendant “engaged in some affirmative conduct designed to

aid in the success” of the commission of a crime with “knowledge that his actions would assist the perpetrator.” United

States v. Smith, 832 F.2d 1167, 1171-72 (9th Cir. 1987) (quoting United States v. Cowart, 595 F.2d 1023, 1031 (5th Cir.

1979)). The majority’s holding that this affirmative conduct

can never take the form of an oral statement will open a pandora’s box of absurd results. For example, a defendant who

says “yes, you can use my house to produce methamphetamine, but I will not open the door for you or participate”

would not be guilty of aiding and abetting the manufacture of

drugs. Likewise, the defendant who says “yes, you can borrow my shotgun and car so that you can rob a bank” would

not be guilty of aiding and abetting as long as he also says

“the gun is in the closet and the keys are on the counter —

get them yourself.” 

9630 GONZALEZ v. MUKASEY
Here, Modesta engaged in affirmative conduct (allowing

her father to use her son’s birth certificate) designed to assist

her father in smuggling undocumented infants into the United

States. She did so with the knowledge that her conduct would

assist her father. Thus, in my view, Modesta’s agreement that

her father could use her son’s birth certificate was “an affirmative act of assistance” sufficient to constitute alien smuggling under INA § 212(a)(6)(E)(i) and Altamirano. The fact

that she was “reluctant” to do so and agreed only to avoid disappointing her father does not change this result. I maintain

the view that, although it is sometimes difficult, we are not

free to adjust the tune of the law any time it does not harmonize with that of our heartstrings. 

Because the majority decides as a matter of law that Modesta’s actions did not constitute alien smuggling, it does not

reach the question of whether the Immigration Judge’s (IJ)

factual findings were supported by substantial evidence. See

Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001) (stating standard of review). Because the administrative record

contains an offer of proof in which Modesta admits that she

agreed to allow her father to use her son’s birth certificate

knowing that it would be used for alien smuggling, “any reasonable adjudicator” would not be “compelled to conclude to

the contrary” of the IJ’s findings. 8 U.S.C. § 1252(b)(4)(B).

Thus, I would deny Modesta’s petition for review. 

GONZALEZ v. MUKASEY 9631