         10-2143-ag
         Arellano-Zapien v. Holder
                                                                                       BIA
                                                                                  Rocco, IJ
                                                                               A075 407 392
                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
     MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 23rd day of September, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                PETER W. HALL,
 9                GERARD E. LYNCH,
10                         Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13
14       EFRAIN ARELLANO-ZAPIEN,
15                Petitioner,
16
17                           v.                                 10-2143-ag
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR PETITIONER:                  Anne E. Doebler
25                                        Buffalo, New York.
26
27       FOR RESPONDENT:                  Tony West, Assistant Attorney
28                                        General; Lyle D. Jentzer, Senior
 1                             Litigation Counsel; Edward J. Duffy,
 2                             United States Department of Justice,
 3                             Civil Division, Office of Immigration
 4                             Litigation
 5                             Washington, D.C.
 6
 7
 8       UPON DUE CONSIDERATION of this petition for review of a

 9   Board of Immigration Appeals (“BIA”) decision, it is hereby

10   ORDERED, ADJUDGED, AND DECREED, that the petition for review

11   is DENIED.

12       Efrain Arellano-Zapien (“Petitioner”), a native and

13   citizen of Mexico, seeks review of a May 13, 2010, decision

14   of the BIA, which affirmed a decision of an Immigration

15   Judge (“IJ”) denying his application for cancellation of

16   removal.     We assume the parties’ familiarity with the

17   underlying facts, the procedural history, and the issues

18   presented for review.

19       As the BIA adopted the decision of the IJ and

20   supplemented that decision, we review the IJ’s decision as

21   supplemented by the BIA.     See Yan Chen v. Gonzales, 417 F.3d

22   268, 271 (2d Cir. 2005).     We review the agency’s factual

23   findings under the substantial evidence standard, and

24   questions of law de novo.     See Aliyev v. Mukasey, 549 F.3d

25   111, 115 (2d Cir. 2008).

26


                                     2
 1       The BIA and IJ ruled that Petitioner was precluded from

 2   satisfying the “good moral character” requirement for

 3   cancellation of removal because he knowingly assisted his

 4   wife’s two illegal entries into the United States in 2003.

 5   Because Petitioner is not a lawful permanent resident, to

 6   establish eligibility for cancellation of removal he must

 7   demonstrate, inter alia, that during the “10 years

 8   immediately preceding the date of [his] application . . .

 9   [he] has been a person of good moral character.”      8 U.S.C.

10   § 1229b(b)(1).   The Immigration and Nationality Act (“INA”)

11   provides that “[n]o person shall be regarded as, or found to

12   be, a person of good moral character who, during the period

13   for which good moral character is required to be

14   established, is, or was . . . a member of one or more of the

15   classes of persons, whether inadmissible or not, described

16   in [8 U.S.C. § 1182(a)(6)(E)] . . . if the offense described

17   therein, for which such person was convicted or of which he

18   admits the commission, was committed during such period.”

19   Id. § 1101(f)(3).   Section 1182(a)(6)(E), in turn,

20   designates as inadmissible for smuggling “[a]ny alien who at

21   any time knowingly has encouraged, induced, assisted,

22   abetted, or aided any other alien to enter or to try to



                                   3
 1   enter the United States in violation of law.”     Id.

 2   § 1182(a)(6)(E)(i).

 3        We have “yet to set forth anything approaching a

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

 5   or 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.”     Chambers v. Office

 8   of Chief Counsel, 494 F.3d 274, 279 (2d Cir. 2007) (internal

 9   quotation marks omitted).   However, under any plausible

10   reading of the statute, Petitioner’s actions constitute

11   smuggling.   At his hearing, Petitioner admitted that he had

12   made arrangements with smugglers for his wife’s two illegal

13   entries into the United States in 2003.     With regard to his

14   wife’s first entry, Petitioner paid a smuggler approximately

15   $6,000 to lead his wife across the border, to lead

16   Petitioner across three hours later, and to reunite them at

17   a location in the United States.     As to his wife’s second

18   entry, Petitioner again hired a smuggler to take both him

19   and his wife across the border.     Based on these facts as

20   admitted by Petitioner, there is substantial evidence in the

21   record to support the agency’s conclusion that Petitioner

22   admitted assisting his wife’s illegal entries into the

23   United States for purposes of 8 U.S.C. § 1182(a)(6)(E)(i).

24   See Chambers, 494 F.3d at 279-80.
                                   4
 1          Petitioner argues that the agency erred in designating

 2   him as both a smuggler and a smugglee.     As the BIA observed,

 3   nothing in Section 1182(a)(6)(E) suggests that the

 4   categories of smugglees and smugglers are mutually

 5   exclusive.    Petitioner argues that Congress did not intend

 6   to include smugglees as possible smugglers under 8 U.S.C.

 7   § 1182(a)(6)(E) because smugglees are inadmissible under a

 8   separate subsection, § 1182(a)(6)(A)(i).     However, an alien

 9   may be found inadmissible under multiple provisions of the

10   INA.    Cf. 8 U.S.C. § 1182(d)(11) (providing a waiver of

11   inadmissibility under Section 1182(a)(6)(E)(i) only if the

12   alien is “otherwise admissible”).    Furthermore, although

13   Congress expressly excluded from the purview of

14   Section 1182(a)(6)(E) certain aliens who would otherwise be

15   considered smugglers, no such exception is made for

16   smugglees.    See 8 U.S.C. § 1182(a)(6)(E)(ii); United States

17   v. Smith, 499 U.S. 160, 167 (1991) (“Where Congress

18   explicitly enumerates certain exceptions to a general

19   prohibition, additional exceptions are not to be implied, in

20   the absence of evidence of a contrary legislative intent.”

21   (internal quotation marks omitted)).

22          Finally, Petitioner argues that the family unity waiver

23   of inadmissibility (provided for in Section
                                    5
 1   1182(a)(6)(E)(iii) as set forth in Section 1182(d)(11))

 2   applies in the context of determining whether an alien is

 3   precluded from establishing good moral character for

 4   cancellation of removal purposes.     We need not consider that

 5   question because, in any event, Petitioner does not qualify

 6   for such a waiver.     Section 1182(d)(11) provides in

 7   pertinent part that:

 8     The Attorney General may, in his discretion for
 9     humanitarian purposes, to assure family unity, or when
10     it is otherwise in the public interest, waive
11     application of clause (i) of subsection (a)(6)(E) in
12     the case of any alien lawfully admitted for permanent
13     residence who temporarily proceeded abroad voluntarily
14     and not under an order of removal, and who is
15     otherwise admissible to the United States as a
16     returning resident . . . and in the case of an alien
17     seeking admission or adjustment of status as an
18     immediate relative or [family-sponsored] immigrant . .
19     ., if the alien has encouraged, induced, assisted,
20     abetted, or aided only an individual who at the time
21     of such action was the alien’s spouse, parent, son, or
22     daughter (and no other individual) to enter the United
23     States in violation of law.
24
25   8 U.S.C. § 1182(d)(11).     Petitioner is not eligible for a

26   waiver under the plain terms of this provision because he is

27   neither a lawful permanent resident nor an alien seeking

28   admission or adjustment of status as an immediate relative

29   or family-sponsored immigrant.      See, e.g., Lamie v. U.S.

30   Trustee, 540 U.S. 526, 534 (2004) (noting the well-

31   established rule that courts must enforce a statute

32   according to its terms if its language is plain).
                                     6
 1       Petitioner asserts--and the government does not

 2   dispute--that he is a steady worker and family man with no

 3   criminal record or history of drug abuse, and that he has

 4   been found to lack “good moral character” only because he

 5   handled the arrangements for his wife, as well as himself,

 6   to be smuggled back into the United States after a visit to

 7   her dying parents in Mexico.   If these assertions are true

 8   (something about which we can have no opinion, and that in

 9   any event is irrelevant to the legal issues before us), the

10   government might well want to consider whether the continued

11   prosecution of this case is consistent with recently

12   announced guidelines for the exercise of prosecutorial

13   discretion in deportation cases.    See Memorandum from John

14   Morton, Director, U.S. Immigration and Customs Enforcement,

15   to All Field Office Directors et al. (June 17, 2011),

16   available at http://www.ice.gov/doclib/secure-

17   communities/pdf/prosecutorial-discretion-memo.pdf.

18       We have considered Petitioner’s remaining arguments and

19   we find them to be without merit.   For the foregoing

20   reasons, the petition for review is DENIED.   As we have

21   completed our review, any stay of removal that the Court
                                    7
1   previously granted in this petition is VACATED, and any

2   pending motion for a stay of removal in this petition is

3   DISMISSED as moot.

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6
7




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