                FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

NEFTALI URZUA COVARRUBIAS,          
                      Petitioner,        No. 03-74661
               v.
                                         Agency No.
                                         A70-912-560
ALBERTO R. GONZALES, Attorney
General,                                   OPINION
                     Respondent.
                                    
        On Petition for Review of an Order of the
             Board of Immigration Appeals

                Argued and Submitted
         December 7, 2006—Pasadena, California

                   Filed May 29, 2007

     Before: Harry Pregerson, Barry G. Silverman, and
            Richard C. Tallman, Circuit Judges.

               Opinion by Judge Tallman;
               Dissent by Judge Pregerson




                          6351
                    URZUA v. GONZALES                 6353


                       COUNSEL

Xavier Rosas, Law Office of Enrique Arevalo, Pasadena, Cal-
ifornia, for the petitioner.
6354                     URZUA v. GONZALES
John C. Cunningham, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Washington, D.C., for
the respondent.


                              OPINION

TALLMAN, Circuit Judge:

   Neftali Urzua Covarrubias (“Urzua”) petitions for review
of an order of the Board of Immigration Appeals (“BIA”) dis-
missing Urzua’s appeal from the denial of his application for
suspension of deportation under 8 U.S.C. § 1254(a) (repealed
1996).1 The BIA agreed with the Immigration Judge (“IJ”)
and found Urzua statutorily barred from showing good moral
character, see 8 U.S.C. § 1101(f)(3), because Urzua “know-
ingly . . . encouraged, induced, assisted, abetted[ ] or aided”
his brother in unlawfully entering the United States under 8
U.S.C. § 1182(a)(6)(E)(i). We cannot say that the record com-
pels a contrary result as substantial evidence supports the
BIA’s factual finding. See INS v. Elias-Zacarias, 502 U.S.
478, 481 n.1 (1992). We therefore deny the petition for
review.
  1
    The Immigration & Naturalization Service (“INS”) initiated deporta-
tion proceedings on January 24, 1997. Because this case is governed by
the transitional rules of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), see Kalaw v. INS, 133 F.3d 1147,
1150 (9th Cir. 1997), Urzua could pursue suspension of deportation under
pre-IIRIRA law, see Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 376-77
(9th Cir. 2003) (en banc). To qualify for suspension of deportation, Urzua
must show: (1) physical presence in the United States for a continuous
period of at least seven years; (2) good moral character for the duration
of that period; and (3) the deportation would result in extreme hardship to
the alien or spouse, parent, or child who is a citizen or lawful permanent
resident of the United States. 8 U.S.C. § 1254(a)(1).
                     URZUA v. GONZALES                    6355
                              I

  Urzua, a native and citizen of Mexico, entered the United
States without inspection on August 30, 1989. He filed an
application for asylum on May 3, 1994. During his interview
with an INS asylum officer on January 10, 1997, Urzua
admitted to making several incorrect statements in his asylum
application. On January 24, 1997, the INS filed an order to
show cause charging Urzua as being deportable under 8
U.S.C. § 1251(a)(1)(B) (1996).

   On March 26, 1997, Urzua conceded deportability through
counsel. He then withdrew his application for asylum and
indicated that he would seek suspension of deportation under
§ 1254(a), or, alternatively, voluntary departure under
§ 1254(e). He designated Mexico as the country of deporta-
tion.

   During the merits hearing held on October 26, 2000, INS
counsel questioned Urzua about his brother, Louis. In
response, Urzua made several damaging admissions:

    Q:   How about your, how about your brother,
         Louis, where does he live?

    A:   Louis lives in Mexico with my parents.

    Q:   Does Louis work?

    A:   Over there, yes, he works in construction.

    Q:   Do you support Louis?

    A:   He was here last year and because of his immi-
         gration status, he was only able to work maybe
         one or two days per week. He would either do
         yards or anyone that would ask him to come
         and help them out, and he was with me for
6356                URZUA v. GONZALES
         about eight or nine months, during which time
         I supported him.

    Q:   And h[e] was in an illegal status when he was
         staying with you?

    A:   Yes.

    Q:   When did he enter the United States?

    A:   About in March.

    Q:   Of which year?

    A:   1999.

    Q:   And when he entered, how did he enter?

    A:   He came through [Nogales] as an illegal like
         many of us do when we cross the border.

    Q:   Well, did you know he was coming to stay with
         you?

    A:   Well, yes, he did, he told us he was coming and
         we helped him out, paying his crossing.

    Q:   Could you explain exactly what arrangements
         you made to pay his crossing?

IJ to URZUA:

    Q:   Where did [Louis] come from?

    A:   He came from (indiscernible) Jalisco, Mexico.

    Q:   And where did he enter the United States?
                     URZUA v. GONZALES                     6357
    A:   Nogales, Mexico, crossing into Nogales, Ari-
         zona.

    Q:   And how did he get to Nogales, did he drive,
         did he take a train, what did he do?

    A:   A person that lives here had a station wagon or
         pickup truck and he went down there, and when
         he came back, he gave him a ride to Nogales.

    Q:   And how did he get from Nogales to Los Ange-
         les?

    A:   We paid a person to cross the border, to cross
         him across the border and drive him to Los
         Angeles.

         ...

INS counsel to Urzua:

    Q:   How much money did you pay the person to
         cross him across the border into Nogales?

    A:   $1200.

         ...

    Q:   How many times have you helped your brother
         Louis enter the United States illegally?

    A:   That was the only time.

   Soon after listening to Urzua’s testimony, the IJ concluded
the hearing by warning Urzua’s counsel that “[she thought
Urzua], unfortunately, ha[d] a statutory bar[ ] to good moral
character.” The IJ elaborated further on the effect of Urzua’s
sworn admissions, stating, “I do believe that [Urzua] is statu-
6358                  URZUA v. GONZALES
torily ineligible to establish good moral character because of
having helped his brother enter the United States illegally. I
think part of the problem is that he, [Urzua], is such a[n] hon-
est person, that he just volunteered a little too much informa-
tion.” The IJ then reset the hearing to allow Urzua and his
counsel to reconsider the issue. The IJ asked counsel to be
prepared to discuss the statutory bar at the next hearing.

   On April 26, 2002, the IJ held a second hearing on the mer-
its. During this hearing, Urzua now testified that he had never
asked his brother to come to the United States and that he did
not know of his brother’s plans until after his mother con-
tacted him by telephone. Urzua stated that the day after he
spoke with his mother, Louis called him from Nogales to ask
for money. Urzua now claimed he did not know whether
Louis called from the Mexican or United States side of the
border. Louis asked Urzua for $1200, and although his
brother did not specify why, Urzua stated that he believed
Louis needed the money to pay the smuggler who helped him
cross the border.

   Urzua modified his prior sworn testimony to claim that he
did not know the smuggler and that he made no arrangements
to have the smuggler help Louis cross the border. Urzua testi-
fied that after Louis called him from Nogales, Urzua had
arranged to get the money from other family members in the
United States. Louis then called from a Wal-Mart parking lot
on the United States side of the border to tell Urzua he had
arrived. Urzua testified that, at this point, the smuggler took
the phone from Louis and told Urzua to bring the money to
the Wal-Mart parking lot alone. Urzua stated that he complied
with the smuggler’s request. He testified that, once he got out
of his car in the parking lot, the smuggler approached him and
asked if he was Louis’s brother. Urzua responded, “Yes,” but
told the smuggler that he would not give him the money until
he saw his brother. Urzua stated that, once he saw Louis, he
handed Louis the money, and Louis then turned and gave the
money to the smuggler. Although Urzua claimed to have
                      URZUA v. GONZALES                    6359
never met the smuggler before, he testified that he believed
the unidentified individual was “[t]he person that had been
helping [Louis] cross.”

  Upon further questioning, Urzua admitted that he knew
Louis had decided to come to the United States three to five
months prior to the actual smuggling incident. However,
Urzua testified that he told Louis to wait to come to the
United States. Urzua explained his brother’s decision to
ignore his earlier advice and come to the United States pre-
vented Urzua from refusing to give Louis the money when his
brother called from Nogales. “[Louis] had already made the
decision to [come to the United States,] and one way or the
other, he was going to do it.” Moreover, Urzua testified that
he feared that his brother would be in danger if he did not pro-
vide the money to the smuggler. Although he had no basis to
question the smuggler’s intent, Urzua testified that “[he]
could have killed someone, killed the boy. I was afraid.”

   In a written decision and order, the IJ denied Urzua’s appli-
cation for suspension of deportation and his application for
voluntary departure. Because both parties agreed that Urzua
had established the requisite period of continuous physical
presence, and that his deportation would result in extreme
hardship to himself and his United States citizen child, the
sole remaining issue was whether Urzua could establish good
moral character. The IJ concluded that, because Urzua had
knowingly encouraged, induced, assisted, abetted or aided in
his brother’s unlawful entry into the United States, Urzua was
precluded under § 1101(f)(3) from establishing the requisite
good moral character.

   The IJ found that substantial facts in the record demon-
strated that Urzua knowingly engaged in the alien smuggling
scheme. “[Urzua] testified that he spoke to his brother tele-
phonically several months before the smuggling incident,”
and, “[a]t that time, his brother had indicated his desire to
come to the United States.” Although Urzua “strongly
6360                 URZUA v. GONZALES
opposed his brother’s wishes and advised him not to travel
illegally to the United States,” Urzua collected the $1200 fee,
believing that the money would go to the person that was
helping Louis cross the border. The IJ concluded that,
“[w]hen examined cumulatively[,] these facts demonstrate
that a reasonable person in [Urzua’s] circumstances would
conclude that the brother was attempting an illegal entry into
the United States and [Urzua] was aware that the money was
to be used for the smuggling fee.” Moreover, although Urzua
testified that “he felt obligated to provide the smuggling fee”
out of fear for his brother’s safety, the IJ concluded that she
was “nonetheless . . . compelled to find that [Urzua] played
a role in assisting with the illegal entry of another” because
“[Urzua] collected the smuggling fee from his siblings and
agreed to meet his brother to provide him with the fee.”

   In a per curiam order filed November 20, 2003, the BIA
affirmed the IJ and dismissed Urzua’s appeal. Noting that
Urzua had the burden to show good moral character, the BIA
relied, in part, on that fact that when Urzua agreed to pay the
$1200 fee he was not concerned with whether Louis had
already crossed the border. “[Urzua] was apparently willing to
pay the smuggler in either event.” Furthermore, “[Urzua]
clearly knew his brother beforehand, and knew that his
brother wished to cross the border illegally, as [Urzua] him-
self had done some time ago.” And “[Urzua] admittedly
arranged payment to the smuggler[,] . . . collected the needed
money from siblings[,] . . . agreed to a meeting place with the
smuggler and then presented the money.” Urzua then “trans-
ported [Louis] from that meeting place to his own home
where the brother stayed for months.”

   The BIA also addressed Urzua’s argument that alien
smuggling—as defined by § 1182(a)(6)(E)(i)—ends once the
alien crosses the border. Citing United States v. Angwin, 271
F.3d 786 (9th Cir. 2001), overruled in United States v. Lopez,
No. 05-50415, 2007 WL 1309689 (9th Cir. May 7, 2007) (en
banc), and 8 U.S.C. § 1234(a)(1)(A)(v)(i), the BIA concluded
                          URZUA v. GONZALES                            6361
that “it does not necessarily matter here whether the brother
had actually crossed into the United States when [Urzua] first
agreed to pay the smuggler.” Therefore, notwithstanding the
IJ’s “reasonable person” language, the BIA found that Urzua
knowingly encouraged, induced, assisted, abetted or aided
Louis to unlawfully enter the United States.

                                     II

   We have jurisdiction to review the BIA’s denial of eligibil-
ity for suspension of deportation based on a finding that peti-
tioner is statutorily barred from showing good moral
character. See 8 U.S.C. § 1105a(a) (Supp. II 1996), amended
by IIRIRA § 309(c)(4)(E), 110 Stat. 3009-626; Kalaw v. INS,
133 F.3d 1147, 1151 (9th Cir. 1997). Whether Urzua falls into
one of the per se categories listed in § 1101(f) presents a ques-
tion of fact that we review for substantial evidence. Id.

   Urzua carries the burden to prove that he meets the statu-
tory requirements for suspension of deportation and that he
merits a favorable exercise of discretion. Ordonez v. INS, 137
F.3d 1120, 1123 (9th Cir. 1998). “To reverse the BIA[‘s] find-
ing[,] we [would have to] find that the evidence not only sup-
ports that conclusion, but compels it.” Elias-Zacarias, 502
U.S. at 481 n.1.

                                    III

   On appeal, Urzua contends that substantial evidence does
not support the BIA’s finding that he “knowingly” aided or
abetted Louis in unlawfully entering the United States
because, at the time he agreed to give Louis the $1200 smug-
gling fee, he did not know whether his brother had already
crossed the border and entered the United States, and one can-
not aid or abet in a completed offense.2 Urzua bases his argu-
  2
    Urzua contends that the IJ failed to properly define the term “knowing-
ly,” and that this is evidenced by the fact that the IJ found that “a reason-
6362                     URZUA v. GONZALES
ment on the premise that alien smuggling ends once the alien
crosses the border. That is not the case. In light of our recent
en banc decision in United States v. Lopez, No. 05-50415,
2007 WL 1309689 (9th Cir. May 7, 2007), where we
addressed the criminal alien smuggling statute in 8 U.S.C.
§ 1324(a)(2) (2000), we now hold that alien smuggling as
defined in 8 U.S.C. § 1182(a)(6)(E)(i) also continues until the
initial transporter who brings the aliens to the United States
ceases to transport the aliens.

   [1] Lopez declared that the “brings to” offense in
§ 1324(a)(2)3 is a continuing offense that does not end once
each element of the crime has occurred. Lopez, 2007 WL
1309689, at *1. We reasoned that the “brings to” offense
“proscribes an act that is not a static or an instantaneous
occurrence, geographically or temporally.” Id., at *5. It “re-
quires transporting [aliens] over a period of time and distance
and thus does not occur at one particular moment or location.”
Id. Moreover, the federal venue statute, 18 U.S.C. § 3237
(2000), provides that

     [a]ny offense involving . . . transportation in inter-
     state or foreign commerce, or the importation of an
     object or person into the United States is a continu-
     ing offense and . . . may be inquired of and prose-
     cuted in any district from, through, or into which
     such commerce . . . or imported object or person
     moves.

able person in [Urzua’s] circumstances would conclude that the brother
was attempting an illegal entry into the United States and [Urzua] was
aware that the money was to be used for the smuggling fee.” However,
when the BIA conducts a de novo review and issues its own decision, we
review the BIA’s decision rather than the IJ’s. Hernandez-Guadarrama v.
Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005).
   3
     “Any person who, knowing or in reckless disregard of the fact that an
alien had not received prior official authorization to come to . . . the
United States, brings to or attempts to bring to the United States in any
manner whatsoever” is guilty of the “brings to” offense. Id.
                          URZUA v. GONZALES                            6363
In other words, any offense involving the importation of a
person or object into the United States is a continuing offense
for venue purposes. See Lopez, 2007 WL 1309689, at *6.

   [2] We have no reason to define the alien smuggling provi-
sion set forth in § 1182(a)(6)(E)(i) differently from its crimi-
nal counterpart in § 1324(a)(2). As we stated in Hernandez-
Guadarrama v. Ashcroft, 394 F.3d 674 (9th Cir. 2005),4 Con-
gress intended the civil alien smuggling statute to apply to a
broad range of conduct.5 Id. at 679. There, we held that “[a]n
individual may knowingly encourage, induce, assist, abet, or
aid with illegal entry, even if he did not personally hire the
smuggler and even if he is not present at the point of illegal
entry.” Id.; see also Soriano v. Gonzales, 2007 WL 1020462,
*2 (5th Cir. April 5, 2007) (citing Hernandez-Guadarrama
and holding that an alien is inadmissible under § 1182 “re-
gardless of whether the assisting individual was present at the
border crossing”).6 And, similar to the criminal “brings to”
offense, the civil alien smuggling provision in § 1182 does
not describe acts that constitute static or instantaneous occur-
rences. Rather, these are acts that occur over a period of time
and distance, and do not occur at one particular moment or
location. See Lopez, 2007 WL 1309689, at *5. Therefore, we
  4
     Hernandez-Guardarrama discussed 8 U.S.C. § 1227(a)(1)(E)(i) rather
than § 1182(a)(6)(E)(i). However, as the Supreme Court has made clear,
identical words used in different parts of the same act are intended to have
the same meaning. Sullivan v. Stroop, 496 U.S. 478, 484 (1990).
   5
     Under § 1227(a)(1)(E)(i), “[a]ny alien who . . . knowingly has encour-
aged, induced, assisted, abetted, or aided any other alien to enter or to try
to enter the United States in violation of law is deportable.”
   6
     There is no basis to distinguish these two statutes through their mens
rea requirement. See 8 U.S.C. § 1324(a)(2) (requiring a mens rea of
“knowing or in reckless disregard”); Id. § 1182(a)(6)(E)(i) (stating a mens
rea requirement of “knowingly”). We are concerned with the scope of the
alien smuggling provisions, not with an offender’s mental state when com-
mitting the offense. Our holding that § 1182(a)(6)(E)(i) is a continuing
offense does not affect the civil provision’s mens rea requirement of
“knowingly.”
6364                 URZUA v. GONZALES
hold here that alien smuggling under § 1182 continues until
the initial transporter ceases to transport the alien.

   [3] Given the broad scope of the statute, we simply cannot
say that the evidence in this record compels a result contrary
to that reached by the IJ and the BIA. During the October 26,
2000, hearing, Urzua admitted that he knew his brother had
planned on crossing the border illegally, and that, along with
other members of his family, he had “helped [Louis] out, pay-
ing his crossing.” Even if Urzua had not agreed to pay the
smuggler until after his brother had crossed the border, the
evidence shows that Urzua agreed to pay before the “initial
transporter” ceased transporting Louis. Therefore, Urzua’s
participation took place prior to the completion of the alien
smuggling venture. Moreover, by collecting the needed
money from his siblings and arranging payment to the smug-
gler, Urzua knowingly aided and abetted the venture by pro-
viding “an affirmative act of help, assistance, or
encouragement” in his brother’s effort to illegally enter the
United States. See Altamirano v. Gonzales, 427 F.3d 586, 592
(9th Cir. 2005); see also Khourassany v. INS, 208 F.3d 1096,
1101 (9th Cir. 2000) (upholding the IJ’s and BIA’s finding
that petitioner fell within the alien smuggler provision
because “he admitted that in 1995 he paid a smuggler to bring
his wife and child into the United States illegally from Mexi-
co”).

                              IV

   [4] The BIA did not abuse its discretion by failing to com-
ply with the procedural safeguards set forth in Matter of J, 2
I&N Dec. 286, 1945 WL 5557 (BIA 1945), for obtaining
admissions. See Pazcoguin v. Radcliffe, 292 F.3d 1209, 1215
(9th Cir. 2002) (stating that we review the BIA’s interpreta-
tion of its case law for an abuse of discretion). Those proce-
dural safeguards “[were] adopted for the purpose of insuring
that the alien would receive fair play and to preclude any pos-
sible later claim . . . that he had been unwittingly entrapped
                         URZUA v. GONZALES                           6365
into admitting the commission of a crime involving moral tur-
pitude.” Matter of K, 7 I&N Dec. 594, 597, 1957 WL 10581
(BIA 1957). Here, Urzua was being questioned under oath, in
the presence of his attorney. Moreover, the BIA did not find
that Urzua had admitted to committing acts constituting the
essential elements of a crime involving moral turpitude.
Rather, the BIA concluded that Urzua was statutorily ineligi-
ble to prove good moral character because he had engaged in
alien smuggling under § 1182(a)(6)(E)(i). The record supports
that factual finding.

   PETITION DENIED.



PREGERSON, Circuit Judge, Dissenting:

   I disagree with the majority’s characterization of the facts
in this case. The evidence in the record compels a result con-
trary to the BIA’s holding. Accordingly, I dissent.

   Urzua is a citizen of Mexico. He has been residing in the
United States since he entered the country illegally in 1989.
The INS commenced deportation proceedings against Urzua
in 1997. Urzua conceded deportability, but applied for sus-
pension of deportation. To qualify for the discretionary relief
of suspension of deportation Urzua must (1) have been physi-
cally present in the United States for a continuous period of
seven years, (2) be a person of good moral character, and (3)
demonstrate that deportation would result in extreme hardship
to himself or to his U.S. citizen son. 8 U.S.C. § 1254(a)(1).1
  1
   Under the Illegal Immigration Reform and Immigrant Responsibility
Act (IIRIRA), Congress eliminated suspension of deportation, INA
§ 212(c). Congress replaced it with “cancellation of removal,” INA
§ 240A; 8 U.S.C. § 1229b , which retained similar standards for relief. See
Pablo v. INS, 72 F.3d 110, 113 (9th Cir. 1995).
6366                  URZUA v. GONZALES
   There is no dispute that Urzua has met the requirements of
continuous presence and extreme hardship to himself and to
his son. Urzua has been in the United States for almost eigh-
teen years. During this time, Urzua has worked for the same
employer and has paid taxes. He learned English and is active
in his church and in his community. He and his brother own
a house together. Urzua coaches a children’s soccer team, and
he is very close to his extensive family residing in California,
including four siblings, aunts, uncles, nieces, nephews, and
cousins.

  Urzua also plays an important role in the life of his eleven-
year-old U.S.-born citizen son whom he supports emotionally
and financially. Although his son does not live with him,
Urzua spends part of nearly every day with his son, provides
him with medical insurance, and pays child support.

   Despite Urzua’s upstanding background, the BIA found
Urzua ineligible for suspension of deportation on the grounds
that Urzua lacks “good moral character.” Under section
101(f)(3) of the Immigration and Nationality Act, a person
lacks good moral character if that person is described in sec-
tion 212(a)(6)(E). That section provides, in part, that 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 the law is inadmissible.” 8 U.S.C.
§ 1182(a)(6)(E)

    The BIA held that section 212(a)(6)(E) applied to Urzua.
The BIA held that the evidence demonstrated that Urzua “ex-
ecuted a step-by-step plan to help his brother illegally enter
. . . the United States.” This conclusion is not supported by the
evidence.

   The BIA relied on Matter of I-M-, 7 I&N Dec. 389 (BIA
1957), in determining that Urzua had executed a step-by-step
plan to help his brother Louis enter the United States illegally.
In Matter of I-M-, the BIA found that a person who drove ille-
                        URZUA v. GONZALES                        6367
gal aliens (who were already in the United States) to Los
Angeles was not subject to deportation. The transporter did
not know the aliens beforehand, and the transportation was
not prearranged. Matter of I-M-, 7 I&N at 391. The BIA in
Matter of I-M- explained,

      in all cases where we have ordered deportation
      [based on alien smuggling,] the record shows that
      the respondent knew the assisted aliens beforehand,
      or contacted them while they were still in Mexico, or
      knew a go-between who was arranging their entry
      and there was some conversation or prearrangement
      prior to the assisted alien’s entry.

Id.

   Guided by the above statement from Matter of I-M-, the
BIA held Urzua to be an alien smuggler. The BIA explained
that Urzua (1) knew his brother Louis beforehand, (2) knew
Louis wished to cross illegally, (3) discussed illegal crossing
with Louis, (4) arranged payment to the smuggler, (5) agreed
to a meeting place with the smuggler, and (6) presented the
money to the smuggler.

   The BIA’s characterization of the facts is not supported by
the evidence. “Absent an explicit adverse credibility finding,
a witness’s testimony must be accepted as true.” Lopez-
Alvarado v. Ashcroft, 381 F.3d 847, 851 (9th Cir. 2004).2
Although Urzua, of course, knew his brother beforehand and
knew that his brother wished to cross illegally, Urzua vehe-
mently discouraged his brother from crossing. Urzua did not
offer assistance with the illegal crossing; in fact, Urzua told
Louis not to do it. Urzua did not know that Louis was going
to go against his advice and enter illegally until Louis was
already on his way to Los Angeles. Urzua’s upset mother cal-
  2
   Not only did the IJ find Urzua credible, but she praised him for his
honesty.
6368                 URZUA v. GONZALES
led him from Jalisco, Mexico stating that Louis had decided
to travel to the United States illegally and was on his way to
Urzua. She expressed her worry over Louis.

   Louis later called Urzua from “Nogales” stating he was on
his way to Urzua and asking to borrow $1,200. Urzua did not
ask Louis what the money was for or how Louis was coming
to Los Angeles. Additionally, Urzua did not determine
whether Louis was in Nogales, Mexico or Nogales, Arizona.
Urzua was worried for his brother’s safety and agreed to lend
him the money he requested. Urzua pooled some of his
money with money from another sibling. Although Urzua sus-
pected that some of the money might go to a smuggler, this
was not “arranging” payment.

   As for the meeting place and presentation of money, the
circumstances do not demonstrate that Urzua planned or coor-
dinated a step-by-step program to help his brother enter the
United States illegally. When Louis reached Los Angeles, he
called Urzua and announced “I’m Here.” Urzua asked Louis
where he was. At that point, a stranger took the phone and
told Urzua that his brother was in the parking lot at a nearby
Wal-Mart. That stranger also told Urzua that he should bring
the money for his brother to the Wal-Mart and he should go
alone. Urzua went to the Wal-Mart. He parked his car and
then looked around for his brother, whom he did not see. A
stranger approached Urzua and asked if he was Louis’s
brother. Urzua asked to see his brother. Louis then got out of
a car. After ensuring that Louis was unharmed, Urzua gave
the money to Louis who then used the money to pay the
stranger. Urzua and Louis then left. Urzua never confirmed
that the stranger was a smuggler. Urzua had not seen him
before, and he never saw him again. Urzua did not know the
man, and he never even learned the stranger’s name. He did
not make any arrangements with the smuggler. Urzua’s only
interaction with the smuggler was to learn his brother’s loca-
tion in Los Angeles.
                     URZUA v. GONZALES                    6369
   Urzua did not plan or execute the smuggling of his brother.
Urzua testified that at all times, he was solely concerned for
Louis’s safety. This is not evidence of Urzua executing a
“step-by-step plan” to smuggle Louis into the United States.
This is an older brother protecting a younger brother whom
the family believed to be in danger.

   Urzua’s actions further do not constitute aiding and abet-
ting alien smuggling because the actions occurred after Louis
had entered the country. By the time Urzua loaned Louis
money, Louis was in Los Angeles. It is not even clear whether
Louis was in the United States or Mexico when Urzua agreed
over the telephone to loan Louis money.

   In United States v. Lopez, ___ F.3d ___, 2007 WL 1309689
(9th Cir. 2007) (en banc), we recently held that the offense of
smuggling an alien “to” the United States terminates when the
person transporting the alien brings the alien to a destination
within the United States. From the record, we can not deter-
mine when the crime was complete. If Louis called Urzua
from Nogales, Arizona, the crime of alien smuggling was
already completed at the time Urzua agreed to lend his brother
money. In such a situation, Urzua would, at most, be guilty
of accessory after the fact to alien transportation. If a smug-
gler transported Louis from Nogales, Mexico to the Wal-Mart
parking lot in Los Angeles, the crime was completed upon
reaching the parking lot — before Louis called his brother to
come meet him.

   Urzua’s agreement to lend his brother money is insufficient
to demonstrate that Urzua aided and abetted alien smuggling.
Regardless of which side of the border Louis was standing on
when asking his brother to lend him $1200, there is no sub-
stantial evidence that Urzua “willingly associated himself
with the venture and participated therein as something he
wished to bring about.” United States v. Zemek, 634 F.2d
1159, 1174 (9th Cir. 1980) (interpreting the federal aiding and
abetting statute). The Ninth Circuit Model Criminal Jury
6370                  URZUA v. GONZALES
Instructions explain that to be found guilty of aiding and abet-
ting, a defendant must have “knowingly and intentionally”
assisted in committing each element of the principal’s
offense. Ninth Circuit Model Criminal Jury Instructions § 5.1
(2005); see also Lopez, 2007 WL 1309689 at *11. The evi-
dence here does not indicate that Urzua assisted in the forma-
tion of the underlying plan or in the commission of the act.

   Urzua reluctantly agreed to lend his brother money out of
concern for his brother’s safety. He did so despite the fact that
he suspected the money would be used to pay an alien smug-
gler. Lending someone money, even where you suspect it will
be used to pay for illegal activities, does not (without more)
rise to the level of aiding and abetting the principal’s crime.
This is especially true where the money is lent after comple-
tion of the crime to pay off a debt. Would we consider loaning
a brother money to pay off an illegal gambling debt to be aid-
ing and abetting in the crime of illegal gambling? At most,
such circumstances describe actions akin to accessory after
the fact.

   As Urzua testified, there was nothing he was able to say or
do to prevent his brother’s illegal entry. Urzua did not arrange
for Louis to enter the country illegally. He did not coordinate
with a smuggler or with Louis. He did not execute a step-by-
step plan. Indeed, there is no evidence that Urzua knew any-
thing of his brother’s plans before Louis called begging for
money. For the foregoing reasons, I dissent. I would grant
Urzua’s petition.
