     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   Office of Chief Counsel, Department of Homeland Security, Alberto
11              R. Gonzales, United States Attorney General,

12                                   Respondents.

13                   -------------------------------------

14   Before:     McLAUGHLIN, SACK, Circuit Judges, and POGUE, Judge.*
15               Judge Pogue dissents in a separate opinion.

16               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                                 Victor Schurr, Pelham, NY, for
22                                 Petitioner.

23                                 Ari Nazarov, Trial Attorney, Office of
24                                 Immigration Litigation, United States
25                                 Department of Justice (Peter D. Keisler,
26                                 Assistant Attorney General, and Alison

           *
             The Honorable Donald C. Pogue, of the United States Court
     of International Trade, sitting by designation.
1                               M. Igoe, Senior Litigation Counsel, on
2                               the brief), Washington, DC, for
3                               Respondents.

4    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).       In

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).    She

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.    We disagree and therefore

16   deny the petition.

17                                BACKGROUND

18               Chambers was, at all relevant times, a lawful permanent

19   resident of the United States residing in Hempstead, Long Island,

20   New York.    In February 2003, she traveled by automobile with her

21   brother, a United States citizen, to Ontario, Canada, to visit

22   relatives.    In 1990, her former boyfriend, Christopher Woolcock,

23   a resident of Jamaica, had been deported by the United States

24   after being convicted of a drug-related felony.    He was also in

25   Ontario at the time of Chambers's visit, allegedly to attend his

26   uncle's wedding.    Prior to Chambers's and Woolcock's trips to

27   Ontario, they agreed during the course of a telephone

                                       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.   At the border crossing, Chambers's brother handed

8    United States customs officials his passport, his sister's travel

9    documents, and a green card issued in Woolcock's name.    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.   She also denied having Woolcock's passport.   Moments

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

                                      3
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.   That removal hearing was held before Immigration

7    Judge ("IJ") Philip J. Montante, Jr.    Chambers testified that she

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

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    She again admitted having

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.    And she

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.    In fact, Chambers

19   testified, he was to live with his mother.

20             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.    See 8
     U.S.C. § 1182(a)(9)(A)(i).

                                      4
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.   The IJ noted Chambers's several

6    misstatements at the Canadian border and found that "she lied to

7    the Court today."   In re Michelle A Chambers, A 56 034 092, at 9.

8    Relying on these misstatements and Chambers's sworn statement

9    that she and Woolcock had planned the trip across the border, the

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.     Id. at 9-13.

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.   Id. at 11 ("Well, if he had been in the United States

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             On January 24, 2006, the BIA affirmed in a short

24   opinion that closely followed the IJ's reasoning.    First, the BIA


          2
            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."        In re Michelle A.

6    Chambers, A 56 034 092, at 2.   Second, it concluded that in light

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             Chambers petitions for review.

13                               DISCUSSION

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.'"        Lewis

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             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.        Secaida-Rosales v. INS, 331

25   F.3d 297, 306-07 (2d Cir. 2003).        The BIA's findings of fact "are


                                         6
1    conclusive unless any reasonable adjudicator would be compelled

2    to conclude to the contrary."     8 U.S.C. § 1252(b)(4)(B).   The

3    petitioner's knowledge at the time in question is a question of

4    fact.    See, e.g., Farmer v. Brennan, 511 U.S. 825, 842 (1994);

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                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."    8 U.S.C. § 1182(a)(6)(E)(i).3   Chambers argues that the

15   circumstances surrounding her stop at the border compel the

16   conclusion that she did not act "knowingly."     Specifically, she

17   contends that her behavior was consistent with the acts of



          3
            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.    She argues further that her

6    misstatements were not only immaterial to the charge of aiding

7    illegal alien entry, but also were later recanted.

8                But Chambers does not contest that she lied at the

9    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.    For example, her

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.    Such an inference would

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.    These

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
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.    See Siewe v. Gonzales, 480

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

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.    These two assertions

14   are not inherently contradictory.    Assuming that Chambers had

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.   Nevertheless, neither the IJ nor the

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.    Instead, each expressly and

23   additionally relied on Chambers's repeated misstatements and the


                                      9
1    reasonable inferences drawn therefrom.    We therefore conclude

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.      See

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   129, 137-38 (2d Cir. 2006).

11               III.   Chambers's Actions Are Sufficient to Constitute
12                      Assistance Under Section 212(a)(6)(E)(i)
13
14               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.    In support, she cites cases in which divided panels of

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




                                       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 U.S.C.

8    § 1182(a)(6)(E)(i).    We need not do so here.   Chambers did not

9    present agents at the border with accurate information, as did

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.    She does not qualify

13   as an innocent bystander on any reading of the facts.     The fact

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.    Chambers traveled to Canada with the pre-

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


                                      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.

5                               CONCLUSION

6             For the foregoing reasons, Chambers's petition for

7   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,”   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

                                     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.   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

                                       14
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

                                      15
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.




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