Chambers v. Gonzales, No. 06-0804 (2d Cir. 2007)
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The court issued a subsequent related opinion or order on July 17, 2007.
The court issued a subsequent related opinion or order on August 3, 2007.
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06-0804 Chambers v. Gonzales 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2006 4 (Argued: April 25, 2007 Decided: July 13, 2007) 5 Docket No. 06-0804-ag 6 ------------------------------------- 7 Michelle A. Chambers, 8 Petitioner, 9 - v - 10 11 Office of Chief Counsel, Department of Homeland Security, Alberto R. Gonzales, United States Attorney General, 12 Respondents. 13 ------------------------------------- 14 15 Before: 16 McLAUGHLIN, SACK, Circuit Judges, and POGUE, Judge.* Judge Pogue dissents in a separate opinion. Petition for review of a decision by the Board of 17 Immigration Appeals ordering removal on the grounds that the 18 petitioner knowingly assisted the attempted entry of an illegal 19 alien. 20 Petition denied. 21 22 Victor Schurr, Pelham, NY, for Petitioner. 23 24 25 26 Ari Nazarov, Trial Attorney, Office of Immigration Litigation, United States Department of Justice (Peter D. Keisler, Assistant Attorney General, and Alison * The Honorable Donald C. Pogue, of the United States Court of International Trade, sitting by designation. 1 2 3 4 M. Igoe, Senior Litigation Counsel, on the brief), Washington, DC, for Respondents. SACK, Circuit Judge: 5 Michelle Chambers, a Jamaican native, petitions for 6 review of a decision by the Bureau of Immigration Appeals ("BIA") 7 ordering her removal pursuant to 8 U.S.C. § 1182(a)(6)(E)(i). 8 re Michelle A. Chambers, No. A 56 034 092 (B.I.A. Jan. 24, 2006), 9 aff'g No. A 56 034 092 (Immig. Ct. Buffalo Aug. 26, 2004). 10 contends that the BIA erred in finding that she knowingly 11 assisted her former boyfriend's attempted illegal entry into the 12 United States and that irrespective of whether she knew he could 13 not legally enter the United States, her actions were 14 insufficient to constitute an affirmative act of assistance 15 within the meaning of the statute. 16 deny the petition. In She We disagree and therefore BACKGROUND 17 18 Chambers was, at all relevant times, a lawful permanent 19 resident of the United States residing in Hempstead, Long Island, 20 New York. 21 brother, a United States citizen, to Ontario, Canada, to visit 22 relatives. 23 a resident of Jamaica, had been deported by the United States 24 after being convicted of a drug-related felony. 25 Ontario at the time of Chambers's visit, allegedly to attend his 26 uncle's wedding. 27 Ontario, they agreed during the course of a telephone In February 2003, she traveled by automobile with her In 1990, her former boyfriend, Christopher Woolcock, He was also in Prior to Chambers's and Woolcock's trips to 2 1 conversation to meet there and return together to the United 2 States. 3 On February 23, 2003, with Chambers's brother driving, 4 she, her brother, and Woolcock traveled from Ontario headed for 5 the United States in an automobile with Georgia license plates. 6 Chambers was in the front passenger seat and Woolcock was in the 7 back seat. 8 United States customs officials his passport, his sister's travel 9 documents, and a green card issued in Woolcock's name. At the border crossing, Chambers's brother handed Because 10 the customs database revealed that Woolcock had previously been 11 deported, the three were referred to immigration offices for 12 further examination. 13 During subsequent questioning by an immigration 14 inspector, Chambers repeatedly said that Woolcock lived in Long 15 Island and that he had traveled to Canada with her and her 16 brother. 17 later, however, she retrieved it from underneath a seat cushion 18 in the area where she had been waiting to be interviewed. 19 Following her interview, Chambers gave a sworn statement to the 20 inspector in which she admitted (1) lying about Woolcock's 21 residence; (2) having previously agreed with Woolcock to 22 accompany him at the Canadian border as he tried to enter the 23 United States; (3) that prior to that conversation, "[h]e was 24 going to come some other way through Kennedy airport"; (4) that 25 she thought Woolcock had last been in the United States seven 26 years before; (5) that she was aware he had been deported She also denied having Woolcock's passport. 3 Moments 1 previously; and (6) that Woolcock was planning to stay with her 2 at her home upon entering the United States. 3 Chambers was charged with knowingly aiding or assisting 4 the illegal entry of another alien under 8 U.S.C. 5 § 1182(a)(6)(E)(i), and given a notice to appear at removal 6 proceedings. 7 Judge ("IJ") Philip J. Montante, Jr. 8 thought Woolcock was permitted to enter the United States because 9 he had shown her a green card (with his "much younger" picture on That removal hearing was held before Immigration Chambers testified that she 10 it) and had told her that an immigration officer at the time of 11 his deportation in 1990 had informed him that he could return to 12 the United States after ten years.1 13 lied to immigration officers both when she told them that 14 Woolcock was a Long Island resident and when she said that she 15 did not know the whereabouts of Woolcock's passport. 16 admitted that she had also lied when she told the immigration 17 inspector during her interview that Woolcock was going to live 18 with her when they returned to Long Island. 19 testified, he was to live with his mother. 20 She again admitted having And she In fact, Chambers Chambers explained her misstatements by saying she was 21 frightened because she had been told she would be deported. 22 Asked on cross-examination why she had never decided to visit her 1 Woolcock, as an alien deported for commission of an aggravated felon, is permanently ineligible to gain entry. U.S.C. § 1182(a)(9)(A)(i). 4 See 8 1 family in Canada until the weekend that Woolcock was also in 2 Canada, Chambers answered, "Well, we just decided."2 3 At the conclusion of the hearing, the IJ issued an oral 4 decision concluding that Chambers had knowingly aided the illegal 5 entry of another alien. 6 misstatements at the Canadian border and found that "she lied to 7 the Court today." 8 Relying on these misstatements and Chambers's sworn statement 9 that she and Woolcock had planned the trip across the border, the The IJ noted Chambers's several In re Michelle A Chambers, A 56 034 092, at 9. 10 IJ concluded that Chambers knew that Woolcock could not legally 11 enter the United States and that her actions "were an attempt to 12 induce and to encourage" Woolcock's illegal entry. 13 The IJ also noted that he perceived Chambers's testimony that 14 Woolcock told her that he could reenter the United States ten 15 years after his deportation to be inconsistent with Chambers's 16 statement to the immigration inspector that Woolcock was last in 17 the United States seven years prior to the 2003 incident at the 18 border. 19 seven years ago, doesn't that fly in the face of her statement 20 that [Woolcock] told her allegedly that he could return after 10 21 years and here it was seven years ago that he was in the United 22 States."). 23 24 Id. at 9-13. Id. at 11 ("Well, if he had been in the United States On January 24, 2006, the BIA affirmed in a short opinion that closely followed the IJ's reasoning. 2 First, the BIA There is no indication that Chambers received compensation for assisting Woolcock's attempted entry into the United States. 5 1 determined that "if [Chambers] believed that Mr. Woolcock could 2 only reenter the United States after having been absent for 10 3 years after his deportation, [Chambers] would have had knowledge 4 that Mr. Woolcock would not have been able to reenter the United 5 States after the passage of only 7 years." 6 Chambers, A 56 034 092, at 2. 7 of Chambers's numerous admitted and deliberate misrepresentations 8 to customs officials at the border, the IJ did not err in finding 9 Chambers's testimony at the hearing incredible or in "finding 10 that her deception at the border reflected guilty knowledge." 11 Id. 12 In re Michelle A. Second, it concluded that in light Chambers petitions for review. DISCUSSION 13 14 I. Standard of Review 15 "Since the BIA affirmed the IJ's order in a 'brief 16 opinion [that] closely tracks the IJ's reasoning,' and since our 17 conclusion is the same regardless of which decision we review, 18 'we will consider both the IJ's and the BIA's opinions.'" 19 v. Gonzales, 481 F.3d 125, 129 (2d Cir. 2007) (quoting Wangchuck 20 v. Dep't of Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006)) 21 (brackets in original). 22 Lewis We review the IJ's and BIA's factual findings for 23 substantial evidence, and we consider questions of law and 24 applications of law to fact de novo. 25 F.3d 297, 306-07 (2d Cir. 2003). Secaida-Rosales v. INS, 331 The BIA's findings of fact "are 6 1 conclusive unless any reasonable adjudicator would be compelled 2 to conclude to the contrary." 3 petitioner's knowledge at the time in question is a question of 4 fact. 5 Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996); see 6 also Locurto v. Guliani, 447 F.3d 159, 177 n.6 (2d Cir. 2006) 7 ("[T]he defendants' intent is a factual question . . . ."). 8 U.S.C. § 1252(b)(4)(B). The See, e.g., Farmer v. Brennan, 511 U.S. 825, 842 (1994); 8 II. Chambers Acted Knowingly 9 Section 212(a)(6)(E)(i) of the Immigration and 10 Naturalization Act provides that an alien is not admissible into 11 the United States if he or she "at any time knowingly has 12 encouraged, induced, assisted, abetted, or aided any other alien 13 to enter or try to enter the United States in violation of the 14 law." 15 circumstances surrounding her stop at the border compel the 16 conclusion that she did not act "knowingly." 17 contends that her behavior was consistent with the acts of 8 U.S.C. § 1182(a)(6)(E)(i).3 3 Chambers argues that the Specifically, she 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 illegal activity after having departed the United States."). 7 1 someone who thought she was participating in a legal act: her 2 brother readily handed over Woolcock's green card to the customs 3 officer; no subterfuge in the form of fraudulent documents or 4 hidden compartments was used; and Chambers complied with all of 5 the various officers' requests. 6 misstatements were not only immaterial to the charge of aiding 7 illegal alien entry, but also were later recanted. 8 9 She argues further that her But Chambers does not contest that she lied at the border regarding Woolcock's residency and the whereabouts of his 10 passport. The nature of these misstatements plainly supports the 11 inference drawn by the IJ and the BIA that Chambers knew Woolcock 12 could not legally enter the United States. 13 statements that Woolcock lived in Long Island and drove with her 14 and her brother to Canada could reasonably be construed as an 15 attempt by Chambers to convince officials that Woolcock then 16 resided in the United States lawfully. 17 in turn support the corollary inference that Chambers wanted 18 border officials to think Woolcock was a legal resident of the 19 United States because she knew he would otherwise not be 20 permitted to enter in light of his immigration status. 21 inferences, taken together with Chambers's admissions that she 22 and Woolcock planned the means and method of his return to the 23 United States and that she knew that he had been deported 8 For example, her Such an inference would These 1 previously, constitute substantial evidence to support the IJ's 2 and BIA's findings that Chambers acted knowingly to assist 3 Woolcock's attempted illegal entry. 4 F.3d 160, 168 (2d Cir. 2007) ("So long as there is a basis in the 5 evidence for a challenged inference, we do not question whether a 6 different inference was available or more likely."); see also id. 7 ("[W]e will reject a deduction made by an IJ only when there is a 8 complete absence of probative facts to support it . . . ."). 9 To be sure, the IJ and BIA appear to have ascribed See Siewe v. Gonzales, 480 10 misplaced significance to the fact that Chambers professed to 11 believe both that Woolcock had been in the United States within 12 the past seven years and that an immigration officer had told 13 Woolcock he could reenter after ten years. 14 are not inherently contradictory. 15 believed Woolcock's assertion that he could reenter the United 16 States ten years after his deportation in 1990, nothing about the 17 statement would compel Chambers to think that the ten-year clock 18 restarted each time Woolcock entered the United States, as the IJ 19 and BIA seemed to believe. 20 BIA relied solely -- or, in the case of the IJ, substantially -- 21 on this reasoning in finding that Chambers knowingly assisted 22 Woolcock's attempted illegal entry. 23 additionally relied on Chambers's repeated misstatements and the These two assertions Assuming that Chambers had Nevertheless, neither the IJ nor the 9 Instead, each expressly and 1 reasonable inferences drawn therefrom. 2 that the record contains substantial evidence in support of the 3 agency's finding that Chambers acted with the requisite knowledge 4 and that, were we to remand, the agency would reach the same 5 result even absent the likely error that we have identified. 6 Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 401 (2d Cir. 7 2005) ("Certainly if the IJ explicitly adopts an alternative and 8 sufficient basis for her determination, no remand is required."); 9 see also Siewe, 480 F.3d at 166-67; Li Zu Guan v. INS, 453 F.3d 10 We therefore conclude See 129, 137-38 (2d Cir. 2006). 11 12 13 14 III. Chambers's Actions Are Sufficient to Constitute Assistance Under Section 212(a)(6)(E)(i) As an alternative basis for granting her petition, 15 Chambers argues that her actions do not as a matter of law rise 16 to the requisite affirmative assistance that § 212(a)(6)(E)(i) 17 requires. 18 the Sixth and Ninth Circuits have held that the anti-smuggling 19 statute requires an affirmative act of assistance or 20 encouragement beyond either "openly presenting an alien to border 21 officials with accurate identification and citizenship papers," 22 Tapucu v. Gonzales, 399 F.3d 736, 737 (6th Cir. 2005), or "mere 23 presence in [a] vehicle with knowledge of [a] plan" to smuggle an In support, she cites cases in which divided panels of 10 1 alien into the United States, Altamirano v. Gonzales, 427 F.3d 2 586, 596 (9th Cir. 2005). 3 Our Circuit has yet to set forth anything approaching a 4 bright-line test as to the nature of the actions that will or 5 will not suffice to support a finding that an alien has 6 "encouraged, induced, assisted, abetted, or aided" another in 7 illegally entering the United States. 8 § 1182(a)(6)(E)(i). 9 present agents at the border with accurate information, as did 8 U.S.C. We need not do so here. Chambers did not 10 the petitioner in Tapucu, and she was not "mere[ly] presen[t] in 11 the vehicle" in which her brother drove Woolcock across the 12 border like the petitioner in Altamirano. 13 as an innocent bystander on any reading of the facts. 14 that no fraudulent documents were used and no payments by 15 Woolcock were made does not overcome the ample evidence to 16 support the IJ's and BIA's findings that Chambers personally 17 arranged to provide transportation for Woolcock into the United 18 States and purposefully deceived customs officials at the time of 19 his attempted entry. 20 planned intent to bring Woolcock across the border in her car 21 upon her return, and she actively sought to mislead customs 22 officials about Woolcock's residency status in a way that, if 23 believed, would have made it easier for him to enter the United She does not qualify The fact Chambers traveled to Canada with the pre- 11 1 States. There is thus sufficient evidence from which the IJ and 2 the BIA could conclude that she assisted, abetted, or aided 3 Woolcock in his attempt illegally to enter the United States. 4 Section 212(a)(6)(E)(i) requires no more. CONCLUSION 5 6 7 For the foregoing reasons, Chambers's petition for review is denied. 8 12 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, 16 because 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, 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 the BIA did not state that Ms. Chambers 13 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 5 of her misrepresentations during the customs investigation, and 6 ultimately provided correct information at the border during the 7 investigation. 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 Accordingly, it seems to me that this case is 10 could not be certain that the errors below did not play a role 11 in the decision to deny relief. 12 agency s error here played at least a role in the decision to 13 deny relief. 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. 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). 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 Id. Id. at 141. As in Li Zu, the Furthermore, as the court in Tapucu 14 Tapucu v. As a result, I 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. 15 such finding. 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. 21 re Michelle A. Chambers, A 56 034 092, at 1-2. 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 Perhaps more importantly, the agency made no Rather, the BIA made the more nuanced and limited 15 Similarly, with In 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. 5 corrected or recanted these statements and ultimately provided 6 correct information at the border during the investigation. 7 does not seem to me that it is our role to expand the agency s 8 findings in order to support its conclusion. Id. at 2. As noted above, Ms. Chambers later 16 It
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