06-0804 Chambers v. Gonzales
1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2006
4 (Submitted: April 25, 2007 Decided: July 13, 2007 5 Amended: July 17, 2007) 6 Docket No. 06-0804-ag
7 ------------------------------------- 8 Michelle A. Chambers, 9 Petitioner, 10 - v -
11 Office of Chief Counsel, Department of Homeland Security, Alberto 12 R. Gonzales, United States Attorney General,
13 Respondents. 14 -------------------------------------
15 Before: McLAUGHLIN, SACK, Circuit Judges, and POGUE, Judge.* 16 Judge Pogue dissents in a separate opinion.
17 Petition for review of a decision by the Board of 18 Immigration Appeals ordering removal on the grounds that the 19 petitioner knowingly assisted the attempted entry of an illegal 20 alien. 21 Petition denied.
22 Victor Schurr, Pelham, NY, for 23 Petitioner.**
*
The Honorable Donald C. Pogue, of the United States Court of International Trade, sitting by designation.
**
The Court was informed on the eve of the scheduled oral argument that Mr. Schurr was, for ample reason, unable to attend.
At the time of the scheduled argument, the respondents presented no substantive argument. We then took this case under submission
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1 Ari Nazarov, Trial Attorney, Office of 2 Immigration Litigation, United States 3 Department of Justice (Peter D. Keisler, 4 Assistant Attorney General, and Alison 5 M. Igoe, Senior Litigation Counsel, on 6 the brief), Washington, DC, for 7 Respondents.
8 SACK, Circuit Judge: 9 Michelle Chambers, a Jamaican native, petitions for 10 review of a decision by the Bureau of Immigration Appeals ("BIA") 11 ordering her removal pursuant to 8 U.S.C. § 1182(a)(6)(E)(i). In 12 re Michelle A. Chambers, No. A 56 034 092 (B.I.A. Jan. 24, 2006), 13 aff'g No. A 56 034 092 (Immig. Ct. Buffalo Aug. 26, 2004). She 14 contends that the BIA erred in finding that she knowingly 15 assisted her former boyfriend's attempted illegal entry into the 16 United States and that irrespective of whether she knew he could 17 not legally enter the United States, her actions were 18 insufficient to constitute an affirmative act of assistance 19 within the meaning of the statute. We disagree and therefore 20 deny the petition. 21 BACKGROUND 22 Chambers was, at all relevant times, a lawful permanent 23 resident of the United States residing in Hempstead, Long Island, 24 New York. In February 2003, she traveled by automobile with her 25 brother, a United States citizen, to Ontario, Canada, to visit
on the express understanding that if any one of the three members of the panel was of the view that oral argument would likely be helpful, the panel would reconvene to hear it. Upon further consideration, no member of the panel has asked for such oral argument.
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1 relatives. In 1990, her former boyfriend, Christopher Woolcock, 2 a resident of Jamaica, had been deported by the United States 3 after being convicted of a drug-related felony. He was also in 4 Ontario at the time of Chambers's visit, allegedly to attend his 5 uncle's wedding. Prior to Chambers's and Woolcock's trips to 6 Ontario, they agreed during the course of a telephone 7 conversation to meet there and return together to the United 8 States. 9 On February 23, 2003, with Chambers's brother driving, 10 she, her brother, and Woolcock traveled from Ontario headed for 11 the United States in an automobile with Georgia license plates. 12 Chambers was in the front passenger seat and Woolcock was in the 13 back seat. At the border crossing, Chambers's brother handed 14 United States customs officials his passport, his sister's travel 15 documents, and a green card issued in Woolcock's name. Because 16 the customs database revealed that Woolcock had previously been 17 deported, the three were referred to immigration offices for 18 further examination. 19 During subsequent questioning by an immigration 20 inspector, Chambers repeatedly said that Woolcock lived in Long 21 Island and that he had traveled to Canada with her and her 22 brother. She also denied having Woolcock's passport. Moments 23 later, however, she retrieved it from underneath a seat cushion 24 in the area where she had been waiting to be interviewed. 25 Following her interview, Chambers gave a sworn statement to the 26 inspector in which she admitted (1) lying about Woolcock's
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1 residence; (2) having previously agreed with Woolcock to 2 accompany him at the Canadian border as he tried to enter the 3 United States; (3) that prior to that conversation, "[h]e was 4 going to come some other way through Kennedy airport"; (4) that 5 she thought Woolcock had last been in the United States seven 6 years before; (5) that she was aware he had been deported 7 previously; and (6) that Woolcock was planning to stay with her 8 at her home upon entering the United States. 9 Chambers was charged with knowingly aiding or assisting 10 the illegal entry of another alien under 8 U.S.C. 11 § 1182(a)(6)(E)(i), and given a notice to appear at removal 12 proceedings. That removal hearing was held before Immigration 13 Judge ("IJ") Philip J. Montante, Jr. Chambers testified that she 14 thought Woolcock was permitted to enter the United States because 15 he had shown her a green card (with his "much younger" picture on 16 it) and had told her that an immigration officer at the time of 17 his deportation in 1990 had informed him that he could return to 18 the United States after ten years.1 She again admitted having 19 lied to immigration officers both when she told them that 20 Woolcock was a Long Island resident and when she said that she 21 did not know the whereabouts of Woolcock's passport. And she 22 admitted that she had also lied when she told the immigration 23 inspector during her interview that Woolcock was going to live
1
Woolcock, as an alien deported for commission of an aggravated felon, is permanently ineligible to gain entry. See 8 U.S.C. § 1182(a)(9)(A)(i).
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1 with her when they returned to Long Island. In fact, Chambers 2 testified, he was to live with his mother. 3 Chambers explained her misstatements by saying she was 4 frightened because she had been told she would be deported. 5 Asked on cross-examination why she had never decided to visit her 6 family in Canada until the weekend that Woolcock was also in 7 Canada, Chambers answered, "Well, we just decided."2 8 At the conclusion of the hearing, the IJ issued an oral 9 decision concluding that Chambers had knowingly aided the illegal 10 entry of another alien. The IJ noted Chambers's several 11 misstatements at the Canadian border and found that "she lied to 12 the Court today." In re Michelle A Chambers, A 56 034 092, at 9. 13 Relying on these misstatements and Chambers's sworn statement 14 that she and Woolcock had planned the trip across the border, the 15 IJ concluded that Chambers knew that Woolcock could not legally 16 enter the United States and that her actions "were an attempt to 17 induce and to encourage" Woolcock's illegal entry. Id. at 9-13. 18 The IJ also noted that he perceived Chambers's testimony that 19 Woolcock told her that he could reenter the United States ten 20 years after his deportation to be inconsistent with Chambers's 21 statement to the immigration inspector that Woolcock was last in 22 the United States seven years prior to the 2003 incident at the 23 border. Id. at 11 ("Well, if he had been in the United States 24 seven years ago, doesn't that fly in the face of her statement
2
There is no indication that Chambers received compensation for assisting Woolcock's attempted entry into the United States.
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1 that [Woolcock] told her allegedly that he could return after 10 2 years and here it was seven years ago that he was in the United 3 States."). 4 On January 24, 2006, the BIA affirmed in a short 5 opinion that closely followed the IJ's reasoning. First, the BIA 6 determined that "if [Chambers] believed that Mr. Woolcock could 7 only reenter the United States after having been absent for 10 8 years after his deportation, [Chambers] would have had knowledge 9 that Mr. Woolcock would not have been able to reenter the United 10 States after the passage of only 7 years." In re Michelle A. 11 Chambers, A 56 034 092, at 2. Second, it concluded that in light 12 of Chambers's numerous admitted and deliberate misrepresentations 13 to customs officials at the border, the IJ did not err in finding 14 Chambers's testimony at the hearing incredible or in "finding 15 that her deception at the border reflected guilty knowledge." 16 Id. 17 Chambers petitions for review. 18 DISCUSSION 19 I. Standard of Review 20 "Since the BIA affirmed the IJ's order in a 'brief 21 opinion [that] closely tracks the IJ's reasoning,' and since our 22 conclusion is the same regardless of which decision we review, 23 'we will consider both the IJ's and the BIA's opinions.'" Lewis 24 v. Gonzales, 481 F.3d 125, 129 (2d Cir. 2007) (quoting Wangchuck 25 v. Dep't of Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006)) 26 (brackets in original).
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1 We review the IJ's and BIA's factual findings for 2 substantial evidence, and we consider questions of law and 3 applications of law to fact de novo. Secaida-Rosales v. INS, 331 4 F.3d 297, 306-07 (2d Cir. 2003). The BIA's findings of fact "are 5 conclusive unless any reasonable adjudicator would be compelled 6 to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). The 7 petitioner's knowledge at the time in question is a question of 8 fact. See, e.g., Farmer v. Brennan, 511 U.S. 825, 842 (1994); 9 Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996); see 10 also Locurto v. Guliani, 447 F.3d 159, 177 n.6 (2d Cir. 2006) 11 ("[T]he defendants' intent is a factual question . . . ."). 12 II. Chambers Acted Knowingly 13 Section 212(a)(6)(E)(i) of the Immigration and 14 Naturalization Act provides that an alien is not admissible into 15 the United States if he or she "at any time knowingly has 16 encouraged, induced, assisted, abetted, or aided any other alien 17 to enter or try to enter the United States in violation of the 18 law." 8 U.S.C. § 1182(a)(6)(E)(i).3 Chambers argues that the
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Aliens such as Chambers who have achieved lawful permanent resident status in the United States are regarded as seeking admission to the United States if they have "engaged in illegal activity after having departed the United States." 8 U.S.C.
§ 1101(a)(13)(C)(iii) ("An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien . . . (iii) has engaged in
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1 circumstances surrounding her stop at the border compel the 2 conclusion that she did not act "knowingly." Specifically, she 3 contends that her behavior was consistent with the acts of 4 someone who thought she was participating in a legal act: her 5 brother readily handed over Woolcock's green card to the customs 6 officer; no subterfuge in the form of fraudulent documents or 7 hidden compartments was used; and Chambers complied with all of 8 the various officers' requests. She argues further that her 9 misstatements were not only immaterial to the charge of aiding 10 illegal alien entry, but also were later recanted. 11 But Chambers does not contest that she lied at the 12 border regarding Woolcock's residency and the whereabouts of his 13 passport. The nature of these misstatements plainly supports the 14 inference drawn by the IJ and the BIA that Chambers knew Woolcock 15 could not legally enter the United States. For example, her 16 statements that Woolcock lived in Long Island and drove with her 17 and her brother to Canada could reasonably be construed as an 18 attempt by Chambers to convince officials that Woolcock then 19 resided in the United States lawfully. Such an inference would 20 in turn support the corollary inference that Chambers wanted 21 border officials to think Woolcock was a legal resident of the 22 United States because she knew he would otherwise not be
illegal activity after having departed the United States.").
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1 permitted to enter in light of his immigration status. These 2 inferences, taken together with Chambers's admissions that she 3 and Woolcock planned the means and method of his return to the 4 United States and that she knew that he had been deported 5 previously, constitute substantial evidence to support the IJ's 6 and BIA's findings that Chambers acted knowingly to assist 7 Woolcock's attempted illegal entry. See Siewe v. Gonzales, 480 8 F.3d 160, 168 (2d Cir. 2007) ("So long as there is a basis in the 9 evidence for a challenged inference, we do not question whether a 10 different inference was available or more likely."); see also id. 11 ("[W]e will reject a deduction made by an IJ only when there is a 12 complete absence of probative facts to support it . . . ."). 13 To be sure, the IJ and BIA appear to have ascribed 14 misplaced significance to the fact that Chambers professed to 15 believe both that Woolcock had been in the United States within 16 the past seven years and that an immigration officer had told 17 Woolcock he could reenter after ten years. These two assertions 18 are not inherently contradictory. Assuming that Chambers had 19 believed Woolcock's assertion that he could reenter the United 20 States ten years after his deportation in 1990, nothing about the 21 statement would compel Chambers to think that the ten-year clock 22 restarted each time Woolcock entered the United States, as the IJ 23 and BIA seemed to believe. Nevertheless, neither the IJ nor the
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1 BIA relied solely -- or, in the case of the IJ, substantially -- 2 on this reasoning in finding that Chambers knowingly assisted 3 Woolcock's attempted illegal entry. Instead, each expressly and 4 additionally relied on Chambers's repeated misstatements and the 5 reasonable inferences drawn therefrom. We therefore conclude 6 that the record contains substantial evidence in support of the 7 agency's finding that Chambers acted with the requisite knowledge 8 and that, were we to remand, the agency would reach the same 9 result even absent the likely error that we have identified. See 10 Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 401 (2d Cir. 11 2005) ("Certainly if the IJ explicitly adopts an alternative and 12 sufficient basis for her determination, no remand is required."); 13 see also Siewe, 480 F.3d at 166-67; Li Zu Guan v. INS, 453 F.3d 14 129, 137-38 (2d Cir. 2006).
15 III. Chambers's Actions Are Sufficient to Constitute 16 Assistance Under Section 212(a)(6)(E)(i) 17 18 As an alternative basis for granting her petition,
19 Chambers argues that her actions do not as a matter of law rise 20 to the requisite affirmative assistance that § 212(a)(6)(E)(i) 21 requires. In support, she cites cases in which divided panels of 22 the Sixth and Ninth Circuits have held that the anti-smuggling 23 statute requires an affirmative act of assistance or 24 encouragement beyond either "openly presenting an alien to border
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1 officials with accurate identification and citizenship papers," 2 Tapucu v. Gonzales, 399 F.3d 736, 737 (6th Cir. 2005), or "mere 3 presence in [a] vehicle with knowledge of [a] plan" to smuggle an 4 alien into the United States, Altamirano v. Gonzales, 427 F.3d 5 586, 596 (9th Cir. 2005). 6 Our Circuit has yet to set forth anything approaching a 7 bright-line test as to the nature of the actions that will or 8 will not suffice to support a finding that an alien has 9 "encouraged, induced, assisted, abetted, or aided" another in 10 illegally entering the United States. 8 U.S.C. 11 § 1182(a)(6)(E)(i). We need not do so here. Chambers did not 12 present agents at the border with accurate information, as did 13 the petitioner in Tapucu, and she was not "mere[ly] presen[t] in 14 the vehicle" in which her brother drove Woolcock across the 15 border like the petitioner in Altamirano. She does not qualify 16 as an innocent bystander on any reading of the facts. The fact 17 that no fraudulent documents were used and no payments by 18 Woolcock were made does not overcome the ample evidence to 19 support the IJ's and BIA's findings that Chambers personally 20 arranged to provide transportation for Woolcock into the United 21 States and purposefully deceived customs officials at the time of 22 his attempted entry. Chambers traveled to Canada with the pre- 23 planned intent to bring Woolcock across the border in her car
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1 upon her return, and she actively sought to mislead customs 2 officials about Woolcock's residency status in a way that, if 3 believed, would have made it easier for him to enter the United 4 States. There is thus sufficient evidence from which the IJ and 5 the BIA could conclude that she assisted, abetted, or aided 6 Woolcock in his attempt illegally to enter the United States. 7 Section 212(a)(6)(E)(i) requires no more. 8 CONCLUSION 9 For the foregoing reasons, Chambers's petition for 10 review is denied.
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1 Pogue, Judge dissenting: 2 The majority opinion correctly states that the BIA’s 3 conclusion that Ms. Chambers violated the alien-smuggling statute 4 is based on the agency’s finding that Ms. Chambers had knowledge 5 of Woolcock’s illegal scheme. The majority opinion also 6 acknowledges – and I agree - that the BIA improperly concluded 7 that Ms. Chambers must have known that Woolcock’s reentry was 8 illegal based on her stated belief that he had been in the 9 country within the last seven years. As the majority notes, if 10 Ms. Chambers believed that Woolcock could reenter the country any 11 time after ten years had passed since his 1990 deportation, 12 whether Woolcock had previously violated the imagined ten-year 13 period says nothing about what Ms. Chambers necessarily believed 14 or knew regarding the propriety of his entry in 2003. 15 I depart from the majority’s opinion, however, because 16 the BIA’s decision also makes it clear that the agency’s 17 erroneous finding - that Ms. Chambers had knowledge of Woolcock’s 18 possible prior reentry - was the major ground for its decision. 19 While the BIA also “found no clear error” in the IJ’s finding 20 that Ms. Chambers’ “deception at the border reflected guilty 21 knowledge,” the BIA did not state that Ms. Chambers’ 22 misrepresentations provided an alternative basis for its 23 decision. Based on this record, therefore, I believe we should 24 review the decision on its stated grounds. SEC v. Chenery Corp., 25 332 U.S. 194, 196 (1947) (“a reviewing court, in dealing with a 26 determination or judgment which an administrative agency alone is
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1 authorized to make, must judge the propriety of such action 2 solely by the grounds invoked by the agency.”); see also Lin v. 3 U.S. Dep’t of Justice, 453 F.3d 99, 106 (2d Cir. 2006). 4 Moreover, Ms. Chambers corrected or recanted each of 5 her misrepresentations during the customs investigation, and 6 ultimately provided correct information at the border during the 7 investigation. Accordingly, it seems to me that this case is 8 more like the case cited by the majority, Li Zu Guan v. INS, 453 9 F. 3d 129 (2d Cir. 2006), where the court remanded because it 10 could not be “certain that the errors below did not play a role 11 in the decision to deny relief.” Id. at 141. As in Li Zu, the 12 agency’s error here played at least “a role in the decision to 13 deny relief.” Id. Furthermore, as the court in Tapucu 14 explained, there is nothing “illegal about driving a known 15 illegal alien with admittedly authentic papers to the American 16 border for examination by the border guards.” Tapucu v. 17 Gonzales, 399 F.3d 736, 739-40 (6th Cir. 2005); see also Doe v. 18 Gonzales, 484 F.3d 445, 449-50 (7th Cir. 2007) (noting that 19 presence at the scene of persecution may not constitute 20 “assistance” in the absence of support or encouragement, and 21 further noting that aiding in a cover-up without advance 22 participation in planning such a cover-up also does not 23 constitute assistance in the actual scheme). As a result, I 24 cannot say with confidence that the BIA would have reached the 25 same result in the absence of error, and it seems to me that the 26 BIA should be given the opportunity to weigh the exculpatory
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1 evidence and make an initial error-free determination as to 2 whether relief is appropriate. 3 Finally, in order to support a conclusion that Ms. 4 Chambers actually assisted in an illegal entry in violation of 5 Section 212(a)(6)(E)(i), the majority relies on a hypothetical 6 finding – that “Chambers traveled to Canada with the pre-planned 7 intent to bring Woolcock across the border in her car upon her 8 return, and she actively sought to mislead customs officials 9 about Woolcock’s residency status in a way that, if believed, 10 would have made it easier for him to enter the United States.” 11 To find a violation of the statute, however, requires more than a 12 hypothetical finding that the petitioner’s actions “would have 13 made it easier;” it requires that the actions actually assisted, 14 abetted or aided. Perhaps more importantly, the agency made no 15 such finding. Rather, the BIA made the more nuanced and limited 16 conclusion, upon which it did not rely to find a violation of the 17 statute, that Ms. Chambers “arranged to meet with Mr. Woolcock, 18 an alien previously deported from the United States as an 19 aggravated felon, at her family's home in Canada so that he could 20 travel to the United States with her and her brother by car.” In 21 re Michelle A. Chambers, A 56 034 092, at 1-2. Similarly, with 22 regard to the majority’s claim of deception, the agency found 23 only that “... despite the respondent's alleged belief that the 24 [sic] Mr. Woolcock could legally enter the United States, the 25 record reflects that the respondent made several 26 misrepresentations to the immigration officials in secondary
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1 inspection . . . . Specifically . . . [Chambers] told [the Agent] 2 that all three of the passengers in the car had traveled to 3 Canada together and that they all lived together in Long Island, 4 New York.” Id. at 2. As noted above, Ms. Chambers later 5 corrected or recanted these statements and ultimately provided 6 correct information at the border during the investigation. It 7 does not seem to me that it is our role to expand the agency’s 8 findings in order to support its conclusion.