                                      File Name: 06a0217n.06
                                       Filed: March 29, 2006

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                            No. 05-3394

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

FARZAN J. MUFTI,

          Petitioner,

v.                                                         THE BOARD OF IMMIGRATION
                                                           APPEALS
ALBERTO R. GONZALES,

          Respondent.


                                                       /

Before:          MARTIN, NELSON, and COLE, Circuit Judges

          BOYCE F. MARTIN, JR., Circuit Judge. Farzan Jameel Mufti, a lawful permanent resident

of the United States and a native of Pakistan, was found to be “inadmissible” because he re-entered

the United States without having been lawfully admitted when he crossed into the country from

Canada. His unlawful reentry resulted from his helping to smuggle his wife into this country from

Canada. For the reasons discussed below, we GRANT Mufti’s petition for review, VACATE the

decision of the Board of Immigration Appeals, and REMAND the case for further proceedings

consistent with this opinion.

                                                  I.

          Mufti was admitted to the United States as a lawful permanent resident in 1997. Mufti, who

earned his bachelor’s degree and MBA in Pakistan, has successfully completed a master’s degree
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in computer science in the United States and was admitted to begin a doctorate program at Memphis

University in the fall of 2003. He was, at the time of detainment, employed teaching college-level

mathematics.

       In April 1999, Mufti returned to Pakistan to be married. On September 16, 2000, Mufti’s

wife flew from Pakistan to Canada on a valid Canadian visa. Mufti met with his wife in Canada and

proceeded to cross the St. Lawrence River with his wife in an effort to smuggle her into the United

States. The two were arrested at a bus stop in Buffalo, New York on September 17. Mufti and his

wife had a son on July 3, 2001. He is an American citizen.

       The Government seeks to deny Mufti’s entry for two reasons: 1) smuggling his wife into the

country, an alleged violation of 8 U.S.C. § 1182(a)(6)(E)(i), and 2) being present in the United

States without being admitted or paroled, § 1182(a)(6)(A)(i). Mufti is eligible for a discretionary

waiver pursuant to § 1182(d)(11) of the smuggling charge because he was smuggling his spouse into

the country.

       The immigration court denied Mufti’s petition for a waiver because it found that Mufti’s

entry into the United States without permission was not eligible to be waived under subsection

(d)(11). The immigration court also concluded that the two offenses did not merge1 for the purposes

of waiver and, therefore, denied relief and never reached the issue of whether its discretion should

be exercised in this case. Additionally, the immigration court declined to terminate the proceedings




       1
        Merger is “[t]he absorption of a lesser included offense into a more serious offense when
a person is charged with both crimes.” BLACK’S LAW DICTIONARY (8th ed. 2004).
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under 8 C.F.R. § 1239.2(f)2 in order for Mufti to continue naturalization. Finally, the immigration

court denied Mufti permission to voluntarily depart from the country because he lacked good moral

character for the past five years based exclusively on his attempt to smuggle his wife into the United

States.       See 8 U.S.C. § 1229c(b)(1)(B).      The Board of Immigration Appeals affirmed the

immigration court’s judgment and Mufti now appeals.

                                                    II.

          When an alien is ordered to be removed from the United States, this Court must consider the

factual determinations of the Board to be “conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004) (quoting

8 U.S.C. § 1252(b)(4)(B)). Further, when an alien, as in the case here, is deemed inadmissible, the

“decision that [the] alien is not eligible for admission to the United States is conclusive unless

manifestly contrary to law.” Ali v. Reno, 237 F.3d 591, 596 (6th Cir. 2001) (quoting 8 U.S.C. §

1252(b)(4)(C)).




          2
           Under this provision,

          [a]n immigration judge may terminate removal proceedings to permit the alien to
          proceed to a final hearing on a pending application or petition for naturalization
          when the alien has established prima facie eligibility for naturalization and the matter
          involves exceptionally appealing or humanitarian factors; in every other case, the
          removal hearing shall be completed as promptly as possible notwithstanding the
          pendency of an application for naturalization during any state of the proceedings.

8 C.F.R. § 1239.2(f).
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        This case turns on the issue of merger. If the two offenses should have been merged, then

the case must be remanded to determine whether the Attorney General will exercise his discretion

in granting the waiver. See 8 U.S.C. § 1182(d)(11). The language of this waiver is as follows:

        The Attorney General may, in his discretion for humanitarian purposes, to assure
        family unity, or when it is otherwise in the public interest, waive application of
        clause (i) of subsection (a)(6)(E) of this section in the case of any alien lawfully
        admitted for permanent residence who temporarily proceeded abroad voluntarily and
        not under an order of removal, and who is otherwise admissible to the United States
        as a returning resident under section 1181(b) . . . if the alien has encouraged,
        induced, assisted, abetted, or aided only an individual who at the time of such action
        was the alien’s spouse . . . (and no other individual) to enter the United States in
        violation of law.

Id.   There is considerable legislative history of this waiver position, which points to the

encouragement of “family unity” as the primary goal of the provision. See 136 Cong. Rec. H12358-

03 (“[T]he conference report enhances the unification of families who have been separated by their

own unfortunate circumstances and by our immigration laws. We have been faithful in returning

family unification as the cornerstone of American immigration law and policy. . . . American

immigration law should be based upon a desire for pursuing the time-honored American tradition

of encouraging family unity. . . . This is pro-family legislation. It brings families together. In

particular, it emphasizes the minor children and spouses of families, and the more immediate

unification of such families.”); H.R. Rep. No. 101-723 (1990), reprinted in 1990 U.S.C.C.A.N.

6710, 6711 (stating an objective of the amendments was “to ease current U.S. immigration law

restrictions that . . . hinder the reunification of nuclear families.”).

        Congress’s intent is clear: family unification is one of the highest goals of our immigration

law and the motivation behind the creation of this waiver. We think it would be strange to construe
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the waiver provision in such a manner so as to prohibit the most common and likely scenario for its

application. It would become absurd to limit such a waiver based on the method a family member

chooses to smuggle a loved one into the United States. Mufti held his wife’s hand through her

process of entering the United States and, as a result, he himself, a legal permanent resident, failed

to enter the United States through an authorized place of entry. If we were to interpret the waiver

provision as the government wishes, the potential beneficiaries of the waiver would stretch the

imagination to its limits. The potential beneficiary would essentially have to smuggle their loved

one through an authorized port of entry. Such a result would not be encouraging to family unity,

but provide the ultimate discouragement of unity.

       Mufti did not participate in a smuggling operation for money, illicit substances, or for the

benefit of strangers. Mufti attempted to smuggle his wife into the United States after he feared for

her life if she remained in their native Pakistan. Mufti’s illegal entry into the United States was

occurred at the exact moment that he smuggled his wife into the country. Therefore, the “offense”

of Mufti illegally entering the United States should have merged into the greater offense of

smuggling. The immigration court erred in determining otherwise. Thus, the appropriate course is

to remand for reconsideration of whether to grant this discretionary waiver, in what appears to be

the quintessential case of family unification. With the charge against Mufti merged into the

smuggling offense, his standing of good moral character would remain intact and the immigration

court could have terminated proceedings to allow Mufti’s naturalization application to proceed.

                                                 III.
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       Based on the discussion above, this Court GRANTS Mufti’s petition for review, VACATES

the decision of the Board of Immigration Appeals, and REMANDS the case for further proceedings

consistent with this opinion.
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       DAVID A. NELSON, Circuit Judge, dissenting. Mr. Mufti hired two men to smuggle his

wife into the United States by taking her across the St. Lawrence River about a mile east of

Massena, New York, a designated port of entry. If he had not accompanied his wife across the river,

Mufti could have made a legal entry at Massena and rejoined his wife later. And if he had followed

that course, he would unquestionably have been eligible for a waiver under 8 U.S.C. § 1182(d)(11)

as one “who is otherwise admissible to the United States as a returning resident . . . .”

       Because Mr. Mufti himself crossed the border illegally, however, thereby committing an

infraction of the immigration laws separate and distinct from the offense of encouraging or assisting

his wife to enter illegally, the government takes the position that he was not “otherwise admissible”

and was thus not eligible for a waiver. It does not seem to me that this is an unreasonable

interpretation of the law, and in my view the government’s interpretation is entitled to deference

under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), and its progeny.

       I do not believe that the government was required to treat Mr. Mufti’s own illegal entry as

a lesser included part of the smuggling offense, even though the two violations occurred at the same

time. The elements of the former offense are not a subset of the elements of the latter, see Schmuck

v. United States, 489 U.S. 705, 716 (1989), so there was no merger of the two offenses into one —

or so the government was entitled to conclude. Accordingly, I would deny the petition for review.
