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--------------------------------------------------------------------------------
Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  
--------------------------------------------------------------------------------
 Case Name:
CORTEZ-ACOSTA V INS 
Case Number: Date Filed: 
97-71033 12/8/00 
--------------------------------------------------------------------------------
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HECTOR CORTEZ-ACOSTA,
Petitioner,                                           No. 97-71033

v.                                                    INS No.
                                                     A91-779-512
IMMIGRATION AND NATURALIZATION
SERVICE,                                              OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
March 16, 2000--San Francisco, California

Filed December 8, 2000

Before: Alex Kozinski, Andrew J. Kleinfeld, and
M. Margaret McKeown, Circuit Judges.

Per Curiam Opinion
_________________________________________________________________
COUNSEL

Rhoda Wilkinson-Domingo, San Francisco, California, for the
petitioner.

Allen W. Hausman, Office of Immigration Litigation, Wash-
ington, D.C., for the respondent.
_________________________________________________________________

                               15686

OPINION

PER CURIAM:

I. FACTS

Mr. Cortez-Acosta, a resident alien, was ordered in Decem-
ber 1994 to show cause why he should not be deported. The
reason stated in English and Spanish on his notice was that he
was "an alien who . . . 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." This all grew out
of an incident at the Tecate border station. Though the facts
are not established by evidence in the record, it appears to be
undisputed that Mr. Cortez-Acosta was a passenger in the first
of two cars owned by the driver that were crossing the border
together. The driver of the second car was a person who could
not legally enter the United States. Everyone in the two cars
was initially thought by the officers to be guilty of something,
but Mr. Cortez-Acosta now maintains that he was merely an
innocent bystander, a passenger, not responsible for what the
driver of the car may have been doing in conjunction with the
driver of the other car. No criminal charges were filed against
Mr. Cortez-Acosta, but the INS thought the quantum of proof
adequate to deport him.

Mr. Cortez-Acosta appeared before an Immigration Judge
(IJ) for a "master" as opposed to an "individual" hearing in
April 1996. At the time, immigration judges did not routinely
record this type of proceeding, so there is no transcript. But
the judge wrote in his own hand "Found Deportable 4-9-96"
on the order to show cause, as a record of the proceeding. In
addition, again in his own hand, the IJ wrote the word "admit"
five times, in the left margin above each of the allegations
stated in English and Spanish on the order to show cause, that:
(1) "[y]ou are not a citizen or national of the United States";
(2) "[y]ou are a native of Mexico and a citizen of Mexico";
(3) "[y]ou entered the United States at or near Tecate, Califor-

                               15687


nia on or about December 4, 1994"; (4) "[a]t that time you
entered as a legal resident alien"; (5) "[o]n or about December
4, 1994, you knowingly encouraged, induced, assisted, abet-
ted and aided Zeferino Hernandez-Gabriel, an alien, to enter
the United States at or near Tecate, California at a place, or
in a manner, other than designated by immigration officials of
the United States for the entrance of immigrants into the
United States." Mr. Cortez-Acosta did not have a lawyer
when he appeared at that hearing. The record is not clear on
whether the IJ wrote "admit" contemporaneously or on a later
date. In Mr. Cortez-Acosta's individual hearing on relief from
deportation a few months later, described below, the IJ said
that the order to show cause "has been corrected nunc pro
tunc with marking today by me," and it is not clear whether
these later markings include the word "admit" written above
each of the five allegations.

Mr. Cortez-Acosta sought relief from deportation. The
applicable statute makes relief available for aliens who tem-
porarily proceeded abroad "who are returning to a lawful
unrelinquished domicile of seven consecutive years."1 An
alien cannot obtain this relief, however, if he at any time
assisted in alien smuggling of someone other than his parent,
spouse, or child.2 Mr. Cortez-Acosta had two problems in
obtaining this relief. First, his application for it said he had
lived in Mexicali, Mexico, for the last five years, not the
United States, and only worked in the United States. Thus
although he had permanent resident status, he was not actually
living in the United States. Second, his alien smuggling case
did not involve his parent, spouse, or child.

The same IJ held an individual hearing, this time tran-
scribed, in September, on Mr. Cortez-Acosta's application for
relief from deportation. The judge then recited that at the ear-
lier hearing, Mr. Cortez-Acosta had admitted to alien smug-
_________________________________________________________________
1 8 U.S.C. S 1182(c).
2 8 U.S.C. S 1182(a)(6)(E).

                               15688


gling, but his residence had been unclear, and the judge had
scheduled a hearing on his application for relief from deporta-
tion. The judge then asked if it was correct that Mr. Cortez-
Acosta had been working in the United States and residing in
Mexico, and Mr. Cortez-Acosta said that it was:

      Q Now, the nature of the proceeding today is that
      on April 9 of this year you already told me that
      you did engage in alien smuggling, that you did
      aid and abet the illegal entry of Zefarino Her-
      nandez Gabriel at or near Tecate, California on
      or about December 4, 1994. Based upon that and
      based upon the fact that you're a permanent resi-
      dent, I didn't know about where you had been
      living or where you had resided. I gave you an
      opportunity to apply for relief from deportation
      under Section 212(c). Today's hearing is only
      about that application. You submitted the appli-
      cation to the Court. [And] pursuant to the appli-
      cation and pursuant to my asking you at pretrial
      about what the issues in the case are, you've
      indicated that you have been working in the
      United States but that your residence has been in
      Mexicali, Mexico. Is that correct, sir?

      A Yes, sir.

At no point during the second hearing did Mr. Cortez-Acosta
correct the judge's statement that he had admitted to alien
smuggling at the prior hearing. The judge at one point asked
him who was Zefarino Hernandez, the alien he was accused
of smuggling, and Mr. Cortez-Acosta replied, "He was a
friend of some cousins," without raising any question about
whether he had helped smuggle him in. At another point, Mr.
Cortez-Acosta did speak up to provide explanation. When the
judge asked him if he wished to appeal denial of his request
for relief from deportation, he said he wanted to answer.
When the judge told him to go ahead, he explained that he

                               15689


was working in California, and had been living in Los Ange-
les with his siblings, but that he had been living in Mexicali,
Mexico since 1990 because he is married and wanted to make
appropriate arrangements for his son.

The IJ found Mr. Cortez-Acosta to be forthright and
deserving, but concluded that he could not under the statute
grant relief. In the course of the extended colloquy with Mr.
Cortez-Acosta, the IJ said that "there is no other chance for
you to stay in this country because of the alien smuggling."
The oral decision recites that Mr. Cortez-Acosta "had before
entry as was determined by me on April 9, aided, abetted and
encouraged or induced the illegal entry of an alien. " The IJ
recites that Mr. Cortez-Acosta "very candidly has indicated
that after receiving his permanent resident status and entry
document, being married he took up domicile in Mexicali,
Mexico immediately across the border from Calexico, Cali-
fornia and made daily entries to work for the last six years to
Hopeville, California in agricultural packing." The IJ found
that Mr. Cortez-Acosta was a "commuter" whose domicile in
the United States had ended when he took up residence in
Mexico in 1990, so he lacked the statutory requirement of an
"unrelinquished domicile of seven consecutive years."3
Because of the lack of seven years of domicile, the IJ denied
relief. As to the alien smuggling, the IJ raised the question
whether "as a reasonably deserving person" relief would have
been granted had it not been for the lack of domicile, and said
he could not "guarantee" it, but "he would have had obviously
serious consideration." This entire proceeding was simulta-
neously translated between Spanish and English. Mr. Cortez-
Acosta did not have an attorney.

Mr. Cortez-Acosta appealed to the BIA. He stated in his
pro se notice that "there were not facts or evidence by INS
that I knowingly encouraged, induced, assisted, abetted or
aided, Zeferino Hernandez-Gabriel to enter the United States
_________________________________________________________________
3 8 U.S.C. S 1182(c).

                               15690


illegally. The allegations of the INS were based on assump-
tion only, just because I happened to be a passenger in one of
the vehicles that were detained. I was only a passenger hoping
to reach Los Angeles to search for work." He felt intimidated
into signing some documents in English. It is not clear what
documents he was referring to. Mr. Cortez-Acosta did not
state that he had any dispute with the IJ's decision on domi-
cile.

The BIA affirmed, stating that Mr. Cortez-Acosta "is ineli-
gible for any form of relief from deportation that is within the
power of the Immigration Judge or this Board to grant." He
now petitions this court for review.

II. ANALYSIS

Mr. Cortez-Acosta argues that: (1) the record lacks suffi-
cient evidence to support the finding that he assisted in smug-
gling aliens; (2) the IJ and BIA erred in holding that he did
not maintain his domicile in the United States; (3) he was
denied due process because his initial appearance, at which
the record says he admitted to the alien smuggling, was not
recorded and transcribed, and he was not given an opportunity
to present evidence concerning his domicile.

1. Jurisdiction

[1] The INS argues that we lack jurisdiction to review Mr.
Cortez-Acosta's claims because he did not raise them before
the BIA. We have described this as a jurisdictional defect.
"Failure to raise an issue in an appeal to the BIA constitutes
a failure to exhaust remedies with respect to that question and
deprives this court of jurisdiction to hear the matter."4

We reject the INS's argument with respect to Mr. Cortez-
Acosta's first argument, because Mr. Cortez-Acosta raised it.
_________________________________________________________________
4 Vargas v. INS, 831 F.2d 906, 907-08 (9th Cir. 1987).

                               15691


He said in his pro se notice of appeal to the BIA, quoted
above, that there was insufficient evidence to establish his
participation in alien smuggling.

Mr. Cortez-Acosta's appeal to the BIA did not address his
domicile or due process issues at all, so we are precluded
from reviewing those aspects of the administrative determina-
tion. The exception for constitutional issues that the BIA lacks
jurisdiction to address5 has no application, because the BIA
could have addressed the issues of whether the IJ should have
either recorded his hearing at which the admissions were
made or asked him again if he so admitted at his recorded
hearing, and whether the IJ should have let him address the
issue of domicile.6 He has not pointed to a statute or regula-
tion that precluded recording and transcribing, under which
the BIA would have been bound,7 nor has he argued that the
issue could not otherwise have been presented to the BIA.

2. Sufficiency of Evidence

Mr. Cortez-Acosta did raise in his appeal to the BIA his
claim that there was not enough evidence to prove that he
assisted in alien smuggling. He claims, as is clear enough
from his notice of appeal to the BIA, that the authorities just
assumed he was helping the driver to smuggle in the alien in
the trailing car that the driver also owned, because he was a
passenger.

[2] The government has the burden of proof in deportation
proceedings. It must prove the facts supporting deportability
by "clear, unequivocal, and convincing evidence."8 The
alleged facts supporting deportability were that "On or about
_________________________________________________________________
5 Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir. 1994).
6 See Vargas, 831 F.2d at 908.
7 Cf. Liu v. Waters, 55 F.3d 421, 425 (9th Cir. 1995).
8 Gameros-Hernandez v. INS, 883 F.2d 839, 841 (9th Cir. 1989) (citing
Woodby v. INS, 385 U.S. 276, 286 (1966)).

                               15692


December 4, 1994, you knowingly encouraged, induced,
assisted, abetted and aided Zeferino Hernandez-Gabriel an
alien, to enter the United States at or near Tecate, California
at a place, or in a manner, other than designated by immigra-
tion officials of the United States for the entrance of immi-
grants into the United States." Although we review for
"reasonable, substantial, and probative evidence in the record
as a whole," our review examines whether "the INS has suc-
cessfully carried this heavy burden"9  of "clear, unequivocal,
and convincing evidence."10

The INS argues that it carried its burden because Mr.
Cortez-Acosta admitted that he did this at the "master" hear-
ing which was not recorded and transcribed, and at his subse-
quent recorded hearing, he acquiesced to the IJ's statement
that he had so admitted.

[3] This is a close case, because Mr. Cortez-Acosta may
well have admitted to the charges, but the standard of proof
is very demanding. We take up Mr. Cortez-Acosta's subse-
quent acquiescence first, because if he had made it perfectly
clear at the second hearing that he did indeed admit at the first
hearing to the alien smuggling, that would be very substantial
evidence. But the acquiescence is not so clear. In his introduc-
tory remarks, the immigration judge did tell Mr. Cortez-
Acosta that he had a right "to tell me what you like about your
case." And the IJ said "you already told me that you did
engage in alien smuggling, that you did aid and abet the ille-
gal entry of Zefarino Hernandez Gabriel at or near Tecate,
California on or about December 4, 1994." Mr. Cortez-Acosta
never denied that in the hearing. But before the IJ asked "Is
that correct, sir?" he recited several other things about the
purpose of the hearing, focusing on the issue of domicile. The
sentence immediately preceding "Is that correct? " "Yes, sir"
was "And pursuant to the application and pursuant to my ask-
_________________________________________________________________
9 Gameros-Hernandez, 883 F.2d at 841.
10 Woodby, 385 U.S. at 286; Gameros-Hernandez, 883 F.2d at 840.

                               15693


ing you at pretrial about what the issues in the case are,
you've indicated that you have been working in the United
States but that your residence has been in Mexicali, Mexico."
So the "Yes, sir" may well have been in response to the resi-
dence question, and Mr. Cortez-Acosta may not have meant
his "yes, sir" to apply to the IJ's earlier statement that he had
admitted the alien smuggling charge. The remainder of the
hearing focused entirely on the residence issue and did not
touch on the alien smuggling charge. Because the hearing did
not provide a clear opportunity for Mr. Cortez-Acosta to
address the alien smuggling charge, or whether he had previ-
ously admitted to it, the acquiescence inference, that this pro
se litigant must have agreed with the IJ's statement because
he did not express disagreement, is weak. Although the judge
did speak more extensively about the prior admission in his
oral decision, Mr. Cortez-Acosta did not affirm or acquiesce
in those remarks. The oral decision came after the colloquy
with Mr. Cortez-Acosta, when the IJ had already asked both
sides if they had anything else to say, and when they did not,
concluded the taking of evidence.

That leaves us with the admissions at the earlier master
hearing that were not recorded. The INS regulations provide,
with regard to individual hearings, that "no further evidence
need be received as to any facts admitted during the pleading,"11
but also provide that "[t]he hearing shall be recorded verba-
tim."12 The regulations do not require that the INS record and
transcribe the master calendar hearing. What we have in this
case is not a verbatim recording of the critical admission at
the master calendar hearing, but a verbatim recording of the
IJ's subsequent recitation at the individual hearing that Mr.
Cortez-Acosta made the earlier admission.

[4] Is the proof of Mr. Cortez-Acosta's admission strong
enough to amount to "clear, unequivocal, and convincing evi-
_________________________________________________________________
11 8 C.F.R. S 242.15 (1996), now 8 C.F.R. S 240.46.
12 8 C.F.R. S 242.16(c) (1996), now 8 C.F.R. S 240.47.

                               15694


dence"?13 We conclude that it is not. According to the IJ, Mr.
Cortez-Acosta admitted during the master hearing that he was
involved in alien smuggling. The IJ made written notations of
his admissions, but it is unclear when. At the September 11
hearing, the IJ stated that the April 9 order to show cause was
"corrected nunc pro tunc with markings today by me," which
suggests that the handwritten words "admit" were not written
contemporaneously with the admissions, but instead were
added five months later. The IJ was probably entirely correct,
but "probably" is a lower standard than "clear, unequivocal,
and convincing." A judge presiding over a master calendar
with multiple individual cases might well confuse one case
with another in trying, after the fact, to recollect what hap-
pened at a particular hearing.

It may be that there was other evidence before the IJ that
would furnish both proof of Mr. Cortez-Acosta's admissions
and an explanation of how a judge could remember such a
detail from a case five months old, but if there is, the INS has
not put it in the certified administrative record. Unlike the
petitioner in Trias-Hernandez v. INS,14 the administrative
record does not include a statement given by Mr. Cortez-
Acosta. If he made oral admissions at his unrecorded master
hearing, that would suffice, but the record does not adequately
establish that he did. A verbatim recording would have made
the admissions stick by removing all doubt that they were
made, but there was no verbatim recording.

The master hearing had the form, and some of the trap-
pings, of an adjudicatory proceeding: It was held in a hearing
room before an IJ, and Mr. Cortez-Acosta was given notice by
means of an order to show cause. The hearing was in the
nature of an arraignment; it was an opportunity for the alien
to confront the charges in the show cause order, and to admit
or contest them. But we have no contemporaneous recording.
_________________________________________________________________
13 Woodby, 385 U.S. at 286; Gameros-Hernandez, 883 F.2d at 841.
14 Trias-Hernandez v. INS, 529 F.2d 366 (9th Cir. 1975).

                               15695


If the master hearing had been recorded and transcribed, the
IJ's determination that Mr. Cortez-Acosta had made certain
admissions would not be treated merely as evidence of what
Mr. Cortez-Acosta said, but as a finding of fact that we would
sustain if supported by the record.

[5] Because there was no contemporaneous recording, we
cannot say that Mr. Cortez-Acosta's supposed admission of
guilt was made within the confines of the adjudicatory pro-
cess. Without a record of the master hearing, we have no way
to verify that the IJ actually asked Mr. Cortez-Acosta the
questions he supposedly answered, that the questions were
phrased clearly enough to be understood by someone relying
on a translation, and that Mr. Cortez-Acosta's answers were
responsive to the questions asked. In short, without a contem-
poraneous recording, we have no way to confirm the IJ's find-
ings or to review his decision for factual or legal error.

[6] We are bound to give the IJ the normal deference owed
to an adjudicator, such as sustaining his findings when sup-
ported by substantial evidence.15 But this deference is owed
only when the judge acts in the context of the adjudicatory
process and his findings are effectively reviewable on appeal.
When the IJ acts outside this process, we treat his findings as
the observations of an ordinary witness. Here, the master
hearing fell short of what we expect in an adjudicatory pro-
ceeding, and so we must treat the IJ's report of what Mr.
Cortez-Acosta said as evidence rather than as findings of fact.
This subtle, but important, distinction is outcome-
determinative in this case. When an adjudicator acts without
the minimal trappings of an adjudicatory proceeding, such as
in the absence of a contemporaneous recording, he is no lon-
ger entitled to the deference normally owed to a judicial offi-
cer.
_________________________________________________________________
15 See Gameros-Hernandez, 883 F.2d at 841.

                               15696

[7] The circumstances do not, as a matter of common sense,
show an overwhelming probability of guilt, which would
make it more likely that he admitted what it was futile to dis-
pute. Mr. Cortez-Acosta was not driving and did not own the
car, and the illegal alien was in a different car. It is not obvi-
ous how Mr. Cortez-Acosta's riding in the car without any
illegal aliens would help to smuggle in the illegal alien in the
other car. He was not charged with the crime of alien smug-
gling (or anything else), so there is no conviction. There is a
real possibility that this man is not deportable, and never
admitted that he was.

Thus we are compelled to grant the petition for review,
because the weakness of the administrative record does not
satisfy the stringent evidentiary standard for deportation.

The petition for review is GRANTED. The BIA decision is
VACATED. This case is REMANDED for further proceed-
ings consistent with this opinion.

                               15697

					


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