     06-0804
     Chambers v. Gonzales

1                           UNITED STATES COURT OF APPEALS

2                               FOR THE SECOND CIRCUIT

3                                 August Term, 2006

4    (Submitted: April 25, 2007                  Decided: July 13, 2007
5                                                Amended: July 17, 2007)
6                               Docket No. 06-0804-ag

7                    -------------------------------------

8                               Michelle A. Chambers,

9                                    Petitioner,

10                                      - v -

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

13                                   Respondents.

14                   -------------------------------------

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

17               Petition for review of a decision by the Board of

18   Immigration Appeals ordering removal on the grounds that the

19   petitioner knowingly assisted the attempted entry of an illegal

20   alien.

21               Petition denied.

22                                 Victor Schurr, Pelham, NY, for
23                                 Petitioner.**

           *
             The Honorable Donald C. Pogue, of the United States Court
     of International Trade, sitting by designation.
           **
           The Court was informed on the eve of the scheduled oral
     argument that Mr. Schurr was, for ample reason, unable to attend.
     At the time of the scheduled argument, the respondents presented
     no substantive argument. We then took this case under submission
1                               Ari Nazarov, Trial Attorney, Office of
2                               Immigration Litigation, United States
3                               Department of Justice (Peter D. Keisler,
4                               Assistant Attorney General, and Alison
5                               M. Igoe, Senior Litigation Counsel, on
6                               the brief), Washington, DC, for
7                               Respondents.

8    SACK, Circuit Judge:

9                Michelle Chambers, a Jamaican native, petitions for

10   review of a decision by the Bureau of Immigration Appeals ("BIA")

11   ordering her removal pursuant to 8 U.S.C. § 1182(a)(6)(E)(i).       In

12   re Michelle A. Chambers, No. A 56 034 092 (B.I.A. Jan. 24, 2006),

13   aff'g No. A 56 034 092 (Immig. Ct. Buffalo Aug. 26, 2004).    She

14   contends that the BIA erred in finding that she knowingly

15   assisted her former boyfriend's attempted illegal entry into the

16   United States and that irrespective of whether she knew he could

17   not legally enter the United States, her actions were

18   insufficient to constitute an affirmative act of assistance

19   within the meaning of the statute.    We disagree and therefore

20   deny the petition.

21                                BACKGROUND

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

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

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

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



     on the express understanding that if any one of   the three members
     of the panel was of the view that oral argument   would likely be
     helpful, the panel would reconvene to hear it.    Upon further
     consideration, no member of the panel has asked   for such oral
     argument.

                                       2
1    relatives.   In 1990, her former boyfriend, Christopher Woolcock,

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

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

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

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

6    Ontario, they agreed during the course of a telephone

7    conversation to meet there and return together to the United

8    States.

9               On February 23, 2003, with Chambers's brother driving,

10   she, her brother, and Woolcock traveled from Ontario headed for

11   the United States in an automobile with Georgia license plates.

12   Chambers was in the front passenger seat and Woolcock was in the

13   back seat.   At the border crossing, Chambers's brother handed

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

15   documents, and a green card issued in Woolcock's name.    Because

16   the customs database revealed that Woolcock had previously been

17   deported, the three were referred to immigration offices for

18   further examination.

19              During subsequent questioning by an immigration

20   inspector, Chambers repeatedly said that Woolcock lived in Long

21   Island and that he had traveled to Canada with her and her

22   brother.   She also denied having Woolcock's passport.   Moments

23   later, however, she retrieved it from underneath a seat cushion

24   in the area where she had been waiting to be interviewed.

25   Following her interview, Chambers gave a sworn statement to the

26   inspector in which she admitted (1) lying about Woolcock's

                                      3
1    residence; (2) having previously agreed with Woolcock to

2    accompany him at the Canadian border as he tried to enter the

3    United States; (3) that prior to that conversation, "[h]e was

4    going to come some other way through Kennedy airport"; (4) that

5    she thought Woolcock had last been in the United States seven

6    years before; (5) that she was aware he had been deported

7    previously; and (6) that Woolcock was planning to stay with her

8    at her home upon entering the United States.

9              Chambers was charged with knowingly aiding or assisting

10   the illegal entry of another alien under 8 U.S.C.

11   § 1182(a)(6)(E)(i), and given a notice to appear at removal

12   proceedings.   That removal hearing was held before Immigration

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

14   thought Woolcock was permitted to enter the United States because

15   he had shown her a green card (with his "much younger" picture on

16   it) and had told her that an immigration officer at the time of

17   his deportation in 1990 had informed him that he could return to

18   the United States after ten years.1    She again admitted having

19   lied to immigration officers both when she told them that

20   Woolcock was a Long Island resident and when she said that she

21   did not know the whereabouts of Woolcock's passport.    And she

22   admitted that she had also lied when she told the immigration

23   inspector during her interview that Woolcock was going to live



          1
            Woolcock, as an alien deported for commission of an
     aggravated felon, is permanently ineligible to gain entry.    See 8
     U.S.C. § 1182(a)(9)(A)(i).

                                      4
1    with her when they returned to Long Island.   In fact, Chambers

2    testified, he was to live with his mother.

3              Chambers explained her misstatements by saying she was

4    frightened because she had been told she would be deported.

5    Asked on cross-examination why she had never decided to visit her

6    family in Canada until the weekend that Woolcock was also in

7    Canada, Chambers answered, "Well, we just decided."2

8              At the conclusion of the hearing, the IJ issued an oral

9    decision concluding that Chambers had knowingly aided the illegal

10   entry of another alien.   The IJ noted Chambers's several

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

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

13   Relying on these misstatements and Chambers's sworn statement

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

15   IJ concluded that Chambers knew that Woolcock could not legally

16   enter the United States and that her actions "were an attempt to

17   induce and to encourage" Woolcock's illegal entry.     Id. at 9-13.

18   The IJ also noted that he perceived Chambers's testimony that

19   Woolcock told her that he could reenter the United States ten

20   years after his deportation to be inconsistent with Chambers's

21   statement to the immigration inspector that Woolcock was last in

22   the United States seven years prior to the 2003 incident at the

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

24   seven years ago, doesn't that fly in the face of her statement


          2
            There is no indication that Chambers received compensation
     for assisting Woolcock's attempted entry into the United States.

                                      5
1    that [Woolcock] told her allegedly that he could return after 10

2    years and here it was seven years ago that he was in the United

3    States.").

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

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

6    determined that "if [Chambers] believed that Mr. Woolcock could

7    only reenter the United States after having been absent for 10

8    years after his deportation, [Chambers] would have had knowledge

9    that Mr. Woolcock would not have been able to reenter the United

10   States after the passage of only 7 years."   In re Michelle A.

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

12   of Chambers's numerous admitted and deliberate misrepresentations

13   to customs officials at the border, the IJ did not err in finding

14   Chambers's testimony at the hearing incredible or in "finding

15   that her deception at the border reflected guilty knowledge."

16   Id.

17             Chambers petitions for review.

18                               DISCUSSION

19             I.   Standard of Review

20             "Since the BIA affirmed the IJ's order in a 'brief

21   opinion [that] closely tracks the IJ's reasoning,' and since our

22   conclusion is the same regardless of which decision we review,

23   'we will consider both the IJ's and the BIA's opinions.'"    Lewis

24   v. Gonzales, 481 F.3d 125, 129 (2d Cir. 2007) (quoting Wangchuck

25   v. Dep't of Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006))

26   (brackets in original).

                                         6
1                We review the IJ's and BIA's factual findings for

2    substantial evidence, and we consider questions of law and

3    applications of law to fact de novo.       Secaida-Rosales v. INS, 331

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

5    conclusive unless any reasonable adjudicator would be compelled

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

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

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

9    Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996); see

10   also Locurto v. Guliani, 447 F.3d 159, 177 n.6 (2d Cir. 2006)

11   ("[T]he defendants' intent is a factual question . . . .").

12               II.   Chambers Acted Knowingly

13               Section 212(a)(6)(E)(i) of the Immigration and

14   Naturalization Act provides that an alien is not admissible into

15   the United States if he or she "at any time knowingly has

16   encouraged, induced, assisted, abetted, or aided any other alien

17   to enter or try to enter the United States in violation of the

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


          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

                                        7
1    circumstances surrounding her stop at the border compel the

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

3    contends that her behavior was consistent with the acts of

4    someone who thought she was participating in a legal act: her

5    brother readily handed over Woolcock's green card to the customs

6    officer; no subterfuge in the form of fraudulent documents or

7    hidden compartments was used; and Chambers complied with all of

8    the various officers' requests.    She argues further that her

9    misstatements were not only immaterial to the charge of aiding

10   illegal alien entry, but also were later recanted.

11               But Chambers does not contest that she lied at the

12   border regarding Woolcock's residency and the whereabouts of his

13   passport.    The nature of these misstatements plainly supports the

14   inference drawn by the IJ and the BIA that Chambers knew Woolcock

15   could not legally enter the United States.    For example, her

16   statements that Woolcock lived in Long Island and drove with her

17   and her brother to Canada could reasonably be construed as an

18   attempt by Chambers to convince officials that Woolcock then

19   resided in the United States lawfully.    Such an inference would

20   in turn support the corollary inference that Chambers wanted

21   border officials to think Woolcock was a legal resident of the

22   United States because she knew he would otherwise not be


     illegal activity after having departed the United States.").

                                       8
1    permitted to enter in light of his immigration status.    These

2    inferences, taken together with Chambers's admissions that she

3    and Woolcock planned the means and method of his return to the

4    United States and that she knew that he had been deported

5    previously, constitute substantial evidence to support the IJ's

6    and BIA's findings that Chambers acted knowingly to assist

7    Woolcock's attempted illegal entry.    See Siewe v. Gonzales, 480

8    F.3d 160, 168 (2d Cir. 2007) ("So long as there is a basis in the

9    evidence for a challenged inference, we do not question whether a

10   different inference was available or more likely."); see also id.

11   ("[W]e will reject a deduction made by an IJ only when there is a

12   complete absence of probative facts to support it . . . .").

13             To be sure, the IJ and BIA appear to have ascribed

14   misplaced significance to the fact that Chambers professed to

15   believe both that Woolcock had been in the United States within

16   the past seven years and that an immigration officer had told

17   Woolcock he could reenter after ten years.    These two assertions

18   are not inherently contradictory.    Assuming that Chambers had

19   believed Woolcock's assertion that he could reenter the United

20   States ten years after his deportation in 1990, nothing about the

21   statement would compel Chambers to think that the ten-year clock

22   restarted each time Woolcock entered the United States, as the IJ

23   and BIA seemed to believe.   Nevertheless, neither the IJ nor the


                                      9
1    BIA relied solely -- or, in the case of the IJ, substantially --

2    on this reasoning in finding that Chambers knowingly assisted

3    Woolcock's attempted illegal entry.    Instead, each expressly and

4    additionally relied on Chambers's repeated misstatements and the

5    reasonable inferences drawn therefrom.    We therefore conclude

6    that the record contains substantial evidence in support of the

7    agency's finding that Chambers acted with the requisite knowledge

8    and that, were we to remand, the agency would reach the same

9    result even absent the likely error that we have identified.      See

10   Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 401 (2d Cir.

11   2005) ("Certainly if the IJ explicitly adopts an alternative and

12   sufficient basis for her determination, no remand is required.");

13   see also Siewe, 480 F.3d at 166-67; Li Zu Guan v. INS, 453 F.3d

14   129, 137-38 (2d Cir. 2006).

15               III.   Chambers's Actions Are Sufficient to Constitute
16                      Assistance Under Section 212(a)(6)(E)(i)
17
18               As an alternative basis for granting her petition,

19   Chambers argues that her actions do not as a matter of law rise

20   to the requisite affirmative assistance that § 212(a)(6)(E)(i)

21   requires.    In support, she cites cases in which divided panels of

22   the Sixth and Ninth Circuits have held that the anti-smuggling

23   statute requires an affirmative act of assistance or

24   encouragement beyond either "openly presenting an alien to border



                                       10
1    officials with accurate identification and citizenship papers,"

2    Tapucu v. Gonzales, 399 F.3d 736, 737 (6th Cir. 2005), or "mere

3    presence in [a] vehicle with knowledge of [a] plan" to smuggle an

4    alien into the United States, Altamirano v. Gonzales, 427 F.3d

5    586, 596 (9th Cir. 2005).

6              Our Circuit has yet to set forth anything approaching a

7    bright-line test as to the nature of the actions that will or

8    will not suffice to support a finding that an alien has

9    "encouraged, induced, assisted, abetted, or aided" another in

10   illegally entering the United States.    8 U.S.C.

11   § 1182(a)(6)(E)(i).    We need not do so here.   Chambers did not

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

13   the petitioner in Tapucu, and she was not "mere[ly] presen[t] in

14   the vehicle" in which her brother drove Woolcock across the

15   border like the petitioner in Altamirano.    She does not qualify

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

17   that no fraudulent documents were used and no payments by

18   Woolcock were made does not overcome the ample evidence to

19   support the IJ's and BIA's findings that Chambers personally

20   arranged to provide transportation for Woolcock into the United

21   States and purposefully deceived customs officials at the time of

22   his attempted entry.    Chambers traveled to Canada with the pre-

23   planned intent to bring Woolcock across the border in her car


                                      11
1    upon her return, and she actively sought to mislead customs

2    officials about Woolcock's residency status in a way that, if

3    believed, would have made it easier for him to enter the United

4    States.   There is thus sufficient evidence from which the IJ and

5    the BIA could conclude that she assisted, abetted, or aided

6    Woolcock in his attempt illegally to enter the United States.

7    Section 212(a)(6)(E)(i) requires no more.

8                                CONCLUSION

9              For the foregoing reasons, Chambers's petition for

10   review is denied.




                                     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, because

16   the BIA’s decision also makes it clear that the agency’s

17   erroneous finding - that Ms. Chambers had knowledge of Woolcock’s

18   possible prior reentry - was the major ground for its decision.

19   While the BIA also “found no clear error” in the IJ’s finding

20   that Ms. Chambers’ “deception at the border reflected guilty

21   knowledge,”   the BIA did not state that Ms. Chambers’

22   misrepresentations provided an alternative basis for its

23   decision. Based on this record, therefore, I believe we should

24   review the decision on its stated grounds. SEC v. Chenery Corp.,

25   332 U.S. 194, 196 (1947) (“a reviewing court, in dealing with a

26   determination or judgment which an administrative agency alone is

                                     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 of

5    her misrepresentations during the customs investigation, and

6    ultimately provided correct information at the border during the

7    investigation.   Accordingly, it seems to me that this case is

8    more like the case cited by the majority, Li Zu Guan v. INS, 453

9    F. 3d 129 (2d Cir. 2006), where the court remanded because it

10   could not be “certain that the errors below did not play a role

11   in the decision to deny relief.”       Id. at 141.    As in Li Zu, the

12   agency’s error here played at least “a role in the decision to

13   deny relief.”    Id.   Furthermore, as the court in Tapucu

14   explained, there is nothing “illegal about driving a known

15   illegal alien with admittedly authentic papers to the American

16   border for examination by the border guards.”         Tapucu v.

17   Gonzales, 399 F.3d 736, 739-40 (6th Cir. 2005); see also Doe v.

18   Gonzales, 484 F.3d 445, 449-50 (7th Cir. 2007) (noting that

19   presence at the scene of persecution may not constitute

20   “assistance” in the absence of support or encouragement, and

21   further noting that aiding in a cover-up without advance

22   participation in planning such a cover-up also does not

23   constitute assistance in the actual scheme).         As a result,   I

24   cannot say with confidence that the BIA would have reached the

25   same result in the absence of error, and it seems to me that the

26   BIA should be given the opportunity to weigh the exculpatory

                                       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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