                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                    ______

                                      No. 11-3038
                                        ______

                         GIOVANNA MARIBEL GUERRERO
                                                Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                ______

           On Petition from the Board of Immigration Appeals – Newark, NJ
                                (File No. A075-875-025)

                                         ______

                         Argued February 14, 2013
    Before: HARDIMAN and GARTH, Circuit Judges, and STARK, District Judge *


                                 (Filed: March 11, 2013)

                                         ______

                           OPINION OF THE COURT
                                   ______
Thomas E. Moseley, Esq. (ARGUED)
Suite 2600
One Gateway Center
Newark, NJ 07102




*
  The Honorable Leonard P. Stark, District Judge for the United States District Court for
the District of Delaware, sitting by designation.
                                            1
Sara J. Bergene, Esq. (ARGUED)
Justin R. Markel, Esq.
Stefanie N. Hennes, Esq.(ARGUED)
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044




GARTH, Circuit Judge.

       This petition for review of a decision of the Board of Immigration Appeals (BIA)

principally raises the question of whether a lawful permanent resident alien (LPR) who is

convicted of attempting to bring another alien to the United States without prior

authorization in violation of 8 U.S.C. § 1324(a)(2)(A) 1 is therefore “inadmissible” to the

United States as an alien smuggler under 8 U.S.C. § 1182(a)(6)(E)(i). 2




1
  8 U.S.C. § 1324(a) provides that: “(2) Any person who, knowing or in reckless
disregard of the fact that an alien has not received prior official authorization to come to,
enter, or reside in the United States, brings to or attempts to bring to the United States in
any manner whatsoever, such alien, regardless of any official action which may later be
taken with respect to such alien shall, for each alien in respect to whom a violation of this
paragraph occurs--
(A) be fined in accordance with Title 18 or imprisoned not more than one year, or both . .
. .”
2
  8 U.S.C. § 1182(a)(6)(E)(i) provides that “[a]ny alien who at any time knowingly has
encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter
the United States in violation of law is inadmissible.”
                                              2
       We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a). Because the

evidence of record is insufficient to support the BIA’s conclusion that the petitioner,

Giovanna Maribel Guerrero, was “inadmissible,” we will reverse the decision of the BIA.

                                              I

       We write principally for the benefit of the parties and recite only the facts essential

to our disposition. Guerrero is a native and citizen of Peru and a LPR of the United

States. In April, 2005, after a short trip abroad Guerrero attempted to reenter the United

States at Miami International Airport as a returning LPR. Guerrero was not admitted but

was instead paroled into the United States for purposes of prosecution.

       A federal grand jury subsequently indicted Guerrero on five counts of “knowingly

attempt[ing] to bring aliens to the United States . . . knowing and in reckless disregard of

the fact that such aliens had not received prior official authorization to come to, enter and

reside in the United States, regardless of any official action which might later be taken

with respect to such aliens” in violation of 8 U.S.C. § 1324(a)(2)(A). Guerrero was also

indicted on one count of knowingly providing a passport to someone other than the

person to whom it was issued, in violation of 18 U.S.C. § 1544. 3 Guerrero pleaded guilty

to one count of violating 8 U.S.C. § 1324(a)(2)(A) and was sentenced to 18 months of

probation. The remaining counts—including the sixth count concerning the provision of a

passport—were dismissed.



3
 18 U.S.C. § 1544 proscribes “willfully and knowingly furnish[ing], dispos[ing] of, or
deliver[ing] a passport to any person, for use by another than the person for whose use it
was originally issued and designed . . . .”
                                              3
       In July, 2008, the Department of Homeland Security charged Guerrero as a

removable alien pursuant to 8 U.S.C. § 1182(a)(6)(E)(i), which provides that “[a]ny alien

who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other

alien to enter or to try to enter the United States in violation of law is inadmissible.” At

the ensuing proceedings before the Immigration Court, Guerrero contended as a threshold

matter that as a LPR she could not be deemed “inadmissible” and should, instead, be

subject to removal proceedings. 4 She further argued that the fact that she pleaded guilty

to an offense under § 1324(a)(2)(A) is insufficient to prove the essential elements of §

1182(a)(6)(E)(i). 5

       The Immigration Judge found that Guerrero “engaged in illegal activity after

having departed the United States,” thus rendering her an applicant for admission

pursuant to 8 U.S.C. § 1101(a)(13)(C)(iii). 6 The Immigration Judge further determined


4
  The difference is significant. If she were not an applicant for admission, Guerrero, who
had been admitted to the United States and had become a LPR, would be subject to
removal only if she violated a statute so providing. She would also be entitled to
constitutional due process protections, which apply to aliens already in the United States
but not to applicants for admission. Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
5
  Guerrero also invoked two exceptions to removability not relevant to this appeal and
applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1). We need not
address at length Guerrero’s claim that she is eligible for cancellation of removal. 8
U.S.C. § 1229b(a)(3) establishes that aliens convicted of aggravated felonies are
ineligible for cancellation of removal. 8 U.S.C. § 1101(a)(43)(N) in turn specifically lists
alien smuggling offenses under § 1324(a)(2) as aggravated felonies. Moreover, this Court
has held that a conviction under § 1324(a)(2) constitutes an aggravated felony,
notwithstanding that the offense is a misdemeanor under federal law. Biskupski v.
Attorney General, 503 F.3d 274, 279-81 (3d Cir. 2007).
6
  8 U.S.C. § 1101(a)(13)(C) provides: “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 . . . .”
                                              4
that Guerrero’s guilty plea provided substantial evidence to demonstrate that she

knowingly assisted or aided undocumented aliens in trying to illegally enter the United

States. The Immigration Judge therefore held that Guerrero was “inadmissible” and not

eligible for cancellation of removal.

       Guerrero appealed from the decision of the Immigration Judge to the BIA. The

BIA, conducting de novo review, affirmed the Immigration Judge’s judgment in all

respects. This timely petition for review followed.

                                             II

       We review the BIA’s legal conclusions de novo, subject to established principles

of deference. See Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir. 2004). 7 We will

reverse the BIA’s ultimate “inadmissibility” decision only if it is “manifestly contrary to

law.” 8 U.S.C. § 1252 (b)(4)(C).

                                             III

       We begin by addressing the question of whether the BIA properly treated Guerrero

as an applicant for admission to the United States, despite her status as a LPR of this

country. Generally an alien who is a LPR of the United States returning from abroad is

not regarded as an applicant for admission. 8 U.S.C. § 1101(a)(13)(C). A returning LPR


7
  Here, we are asked to review an unpublished decision by a single member of the BIA.
“Although we routinely accord Chevron [U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842 (1984)] deference to published decisions of the BIA, this
Court has never announced the deference due an unpublished decision rendered by a
single member of the BIA.” De Leon-Ochoa v. Attorney General of the United States,
622 F.3d 341, 349 (3d Cir. 2010) (citation omitted). As in De Leon-Ochoa, because the
parties have not briefed this issue and our level of deference is not dispositive, we do not
address this question.
                                             5
who “has engaged in illegal activity after having departed the United States,” however, is

deemed to be an applicant for admission. 8 U.S.C. § 1101(a)(13)(C)(iii). By virtue of her

guilty plea to § 1324(a)(2)(A), Guerrero plainly falls within the scope of §

1101(a)(13)(C)(iii), which proscribes an alien from engaging in illegal activity after

leaving the United States. Hence Guerrero was properly treated as an applicant for

admission into this country. See Matter of Guzman Martinez, 25 I. & N. Dec. 845, 846-

47 (BIA 2012).

       Guerrero contends that, notwithstanding the plain statutory language, her actions

do not fall within the terms of § 1101(a)(13)(C)(iii). We do not agree. Guerrero first

argues that § 1101(a)(13)(C)(iii) should be read to encompass only crimes of moral

turpitude and thus should not be triggered by § 1324(a)(2)(A). There is, however, no

support in the statutory text for this qualification. Section 1101(a)(13)(C) provides

separately for crimes of moral turpitude and other substantive offenses, see 8 U.S.C. §

1101(a)(13)(C)(v), and Guerrero offers no persuasive grounds for merging the provisions

of § 1101(a)(13)(C)(v) into § 1101(a)(13)(C)(iii).

       Guerrero also contends that § 1101(a)(13)(C)(iii) should be read to apply only to

crimes that began upon a permanent resident’s departure from the United States and not

to illegal activity that began at some time after departure. This claim similarly finds no

support in the statutory text. As we have observed, the statute refers simply to illegal

activity conducted “after having departed the United States.” 8 U.S.C. §

1101(a)(13)(C)(iii) (emphasis added).



                                              6
       Guerrero invokes Rosenberg v. Fleuti, 374 U.S. 449 (1963), in support of her

construction of § 1101(a)(13)(C)(iii). Fleuti, which established the basic contours

governing when a returning LPR will be treated as an applicant for admission, did

consider the purpose of departure. Id. However, the operative statutory language, which

was enacted over three decades after Fleuti was filed, plainly provides no support for

Guerrero’s claim.

       Thus, as to Guerrero’s first claim, we will affirm the BIA’s holding that Guerrero

was an applicant for admission to the United States and therefore could be held

“inadmissible.” We turn next to the question of whether the BIA properly concluded that

the evidence of record demonstrates her “inadmissibility” pursuant to 8 U.S.C. §

1182(a)(6)(E)(i).

                                             IV

       In support of its conclusion that Guerrero is “inadmissible,” the BIA relied solely

on its determination that “all of the conduct described in [8 U.S.C. § 1324(a)(2)(A)] falls

within the range of activity described under [§ 1182(a)(6)(E)(i)].” 8 Thus, we must

determine whether the BIA correctly concluded that Guerrero’s guilty plea to one count

of an indictment charging that she “knowingly attempt[ed] to bring aliens to the United

States . . . knowing and in reckless disregard of the fact that such aliens had not received

prior official authorization to come to, enter and reside in the United States, regardless of

any official action which might later be taken with respect to such aliens,” in violation of


8
 We note that the BIA’s decision incorrectly references 8 U.S.C. § 1324(a)(1)(A) instead
of § 1324(a)(2)(A) as the offense of conviction. We construe this as a scrivener’s error.
                                              7
8 U.S.C. § 1324(a)(2)(A), see Certified Admin. Record at 121 (emphasis added), is

sufficient to demonstrate that she “knowingly has encouraged, induced, assisted, abetted,

or aided any other alien to enter or to try to enter the United States in violation of law,”

rendering her “inadmissible” under § 1182(a)(6)(E)(i) (emphasis added). 9

       A critical textual distinction separates the statutes at issue. Section

1182(a)(6)(E)(i) requires an alien to knowingly assist another alien to enter or attempt to

enter the country in violation of the law. Section 1324(a)(2)(A), however, applies to an

alien who brings another alien to the country “knowing or in reckless disregard of the

fact that an alien has not received prior official authorization to come to, enter, or reside

in the United States” (emphasis added). Thus § 1324(a)(2)(A), the statute to which

Guerrero pleaded guilty, may be satisfied by an alien who does not actually know (but

rather recklessly disregards) whether the alien being brought to the country is legally

entitled to enter. We are therefore unable to determine whether Guerrero was convicted

on the basis of knowing conduct, the only conduct which satisfies § 1182(a)(6)(E)(i), or




9
  Guerrero contends that in reaching this conclusion the Immigration Judge relied on an
improper standard of proof. The BIA, however, reviewed the Immigration Judge’s
decision de novo and gave no indication that it deferred to the Immigration Judge’s
decision. We therefore are reviewing only the BIA’s decision. Abdulai v. Ashcroft, 239
F.3d 542, 549 n.2 (3d Cir. 2001). The BIA opinion makes no reference to the standard of
proof it employed, and all of the BIA’s conclusions disputed on appeal are legal
determinations based on statutory construction.
       If the BIA’s legal conclusion is flawed, the matter must be remanded regardless of
the standard employed. The parties have not sufficiently briefed, and we decline to
resolve, the “open question of who then bears the burden of showing admissibility, or a
lack of inadmissibility, once it has been determined that an alien is an applicant for
admission.” Matter of Rivens, 25 I. & N. Dec. 623, 626 (BIA 2011).
                                               8
merely reckless conduct, which does not. 10 See In Re: Xiomara Esther Rodriguez-De

Espinoza, A041 319 055 – San Diego, CA, 2008 WL 5025213, at *2 (BIA Oct. 28,

2008).

         In light of the present record, which provides no evidence for determining that

Guerrero knowingly assisted another alien to illegally enter the United States, we

conclude that the BIA erred when it determined that Guerrero’s guilty plea to an offense

under § 1324(a)(2)(A) was sufficient to demonstrate her “inadmissibility” pursuant to §

1182(a)(6)(E)(i).

         Because “an administrative order cannot be upheld unless the grounds upon which

the agency acted in exercising its powers were those upon which its action can be

sustained,” SEC v. Chenery, 318 U.S. 80, 95 (1943), we will therefore reverse the

decision of the BIA and remand the matter to the BIA for further proceedings consistent

with this opinion.




10
   Guerrero was indicted for attempting to bring aliens to the United States “knowing and
in reckless disregard” of their lack of authorization to enter. Because the statute itself
may be satisfied by either knowledge or recklessness, however, demonstration of either
mens rea is adequate for conviction. United States v. Niederberger, 580 F.2d 63, 68 (3d
Cir. 1978). See also Matter of Espinosa, 10 I. & N. Dec. 98 (BIA 1962).




                                              9
