*1 power to remand to correct injus- manifest
tice, then powers those available, must be injustice
whether the is due to the total
absence of procedures, or instead results presence
from the procedures so cir-
cumscribed that they would lead to mani-
fest injustice to a particular petitioner who
comes to our court. any event, since
adequate procedures do seem to be avail- Ni,
able to none of this is determinative
the case before us.
[*] :¡; ‡ :]{ # agree
Because I that we have inherent
powers, they must very be used sparingly,
essentially only in cases of manifest injus-
tice; and because in the instant ease pro-
cedures are seemingly available avoid
any such injustice time, at this I agree
with the majority that we should not re-
mand, and I concur in the result.
Michelle CHAMBERS, A. Petitioner,
OFFICE OF CHIEF COUNSEL, De
partment of Security, Homeland Al
berto R. Gonzales, United States At
torney General, Respondents.
Docket 06-0804-ag. No.
United States Court of Appeals,
Second Circuit.
Submitted: April 2007. July 13,
Decided: 2007. July
Amended: ous doors plausibly that are open petitioner moment, At this injustice manifest would are in open fact only "speculation,” can result from our abstention. It is if alter- that does not end the presence matter. The native routes turn out in fact not to be avail- possibilities those enough justify inus able that the issue of exercise of inherent not exercising powers inherent at this powers time. ripe become for decision. *2 Pelham, NY, Petitione Schurr, for
Victor r.* Attorney, Office Nazarov, Trial
Ari De- Litigation, Immigration Keisler, (Peter As- D. of Justice partment General, M. Alison Attorney sistant Counsel, Litigation Senior Igoe, DC, Respondents. for brief), Washington, SACK, McLAUGHLIN, Circuit Before: POGUE, Judge.** Judges, separate in a dissents Judge POGUE opinion.
SACK, Judge: Circuit native, Chambers, a Jamaican Michelle by a decision for review petitions (“BIA”) or Appeals Immigration Board to 8 U.S.C. pursuant dering her removal A. 1182(a)(6)(E)®. re Michelle 092, 2006 WL Chambers, A 56 No. A 2006), No. aff'g (B.I.A. Jan. Aug. Buffalo (Immig. Ct. 034 092 likely * would argument oral view that of the eve on the informed Court was The it. to hear reconvene panel helpful, Mr. Schurr argument oral scheduled consideration, of the member reason, At attend. was, Upon further ample unable argument. the re- argument, oral for such panel the scheduled has time of asked argu- no substantive presented spondents ** Pogue, of the Unit- C. Donald Honorable The submis- case under then took this We ment. Trade, sitting of International Court ed States understanding that express on the sion designation. by was of panel members of the three one 2004). She contends that the BIA erred During subsequent questioning finding she knowingly assisted her inspector, Chambers re- boyfriend’s former attempted illegal entry peatedly said that Woolcock lived in Long into the United States and that irrespec- Island and that he had traveled to Canada *3 tive of whether she knew he could not with her her and brother. She also denied legally States, enter the United her actions having Woolcock’s passport. Moments la- were insufficient to constitute an affirma- ter, however, she it retrieved from under- tive act of assistance within the meaning of a neath seat cushion the area where she the statute. We disagree and therefore had been waiting to be interviewed. Fol- deny petition. lowing interview, her gave Chambers a sworn statement to the inspector in which BACKGROUND (1) she admitted lying about Woolcock’s was, Chambers at all times, relevant (2) residence; having previously agreed lawful permanent resident of the United with to Woolcock accompany him at the States residing in Hempstead, Long Is- Canadian border as he tried to enter the land, New York. In February 2003, she States; (3) that prior to that con- traveled automobile with brother, a versation, “[h]e was to going come some citizen, United States Ontario, Canada, way other through (4) Kennedy airport”; to visit 1990, relatives. In her former that thought she Woolcock had last been in boyfriend, Christopher Woolcock, a resi- the United States years (5) seven before; dent Jamaica, had been deported by the that she was aware he deported had been United States after being convicted of a (6) previously; and that Woolcock was drug-related felony. He was also in On- planning stay with her at her home tario at the time of visit, Chambers’s alleg- upon entering the United States. edly to attend his uncle’s wedding. Prior and Chambers’s Woolcock’strips to On- Chambers was charged with knowingly tario, they agreed during the course aiding or assisting the illegal entry of an- telephone conversation to meet there and other alien under U.S.C. return together to the United States. § 1182(a)(6)(E)®, given a notice to appear at
On February removal proceedings. That re- Chambers’s moval she, hearing brother driving, was held brother, before Immigra- (“IJ”) tion Judge Woolcock traveled Philip from Montante, Ontario J. Jr., headed for on August 26, the United States in 2004. an automobile Chambers testified with Georgia that plates. she thought license Woolcock permitted was was in the front passenger enter seat and Wool- United States he because had cock was in the back seat. At shown green (with her a card his “much crossing, Chambers’s brother younger” picture it) handed and had told her United States customs officials that pass- his an immigration officer at the time of port, his sister’s documents, travel deportation his and a in 1990 had informed him green card issued in Woolcock’s that name. he could return to the United States Because the customs database revealed after years.1 She again admitted hav- that Woolcock had previously been deport- ing lied to immigration officers both when ed, the three were referred to she told them that Woolcock was a Long offices for further examination. Island resident and when she said that she Woolcock, deported as an alien for ineligible commis- gain entry. See 8 U.S.C. sion of an aggravated felony, is permanently § 1182(a)(9)(A)(i). after could return that allegedly of Wool- whereabouts know the did not ago it was here years and admitted And she passport. cock’s States.”). immi- the United told he was in she lied when also had she interview during her inspector gration affirmed the BIA January On when with her to live going was Woolcock followed closely opinion that in a short fact, Long Island. they returned First, determined the BIA reasoning. IJ’s his to live with testified, he was Mr. believed “if [Chambers] mother. only reenter misstatements explained her having been absent after because frightened she was by saying deportation, [Chambers] his years after *4 deported. told she Mr. knowledge had that Wool- been had would have had why on cross-examination to reenter Asked been able not have cock would family in Canada visit her decided to of passage never States after the United also was Chambers, that weekend Woolcock A until the A. In re Michelle years.” 7 “Well, answered, we Canada, Chambers in that Second, it 092, concluded at 56 034 just decided.”2 admitted numerous Chambers’s light in of to cus- misrepresentations and deliberate the IJ hearing, conclusion At the not border, the IJ did at the toms officials that concluding decision oral an issued testimony at finding Chambers’s err in illegal knowingly aided had Chambers “finding in that or hearing noted incredible The IJ alien. of another entry guilty reflected at border deception at the misstatements several Chambers’s Id. knowledge.” “she lied that and found Canadian A re Michelle today.” Court to the for review. petitions 092, Relying at 9. Chambers, A 034 56 Chambers’s and misstatements these DISCUSSION and Woolcock that she statement sworn Review border, of I. Standard trip planned had that knew that concluded IJ the IJ’s BIA affirmed “Since Unit- legally enter could closely opinion [that] ‘brief order an actions “were that her and ed States our since reasoning,’ and IJ’s tracks encourage” Wool- and induce attempt to of which regardless the same is conclusion The IJ at 9-13. entry. Id. illegal cock’s review, consider both will ‘we we decision ” Chambers’s perceived he also noted v. opinions.’ Lewis the BIA’s the IJ’s and told her that Woolcock testimony Cir.2007) (2d 125, Gonzales, 129 F.3d 481 States the United reenter could Homeland Dep’t v. Wangchuck (quoting of inconsistent to be deportation his after Cir.2006)) (2d 524, 528 F.3d Security, 448 immi- to the statement Chambers’s (brackets original). last was that Woolcock inspector gration and BIA’s the IJ’s review We to the years prior seven States the United evidence, for substantial findings factual 11 Id. at the border. incident 2003 ap law and of questions we consider States in the United been (“Well, if he had Secaida- fact de novo. law to of plications the face fly in doesn’t that years ago, (2d 297, INS, 306-07 F.3d v. her Rosales told [Woolcock] statement of her States. entry into attempted re- no indication 2. There assisting Woolcock's compensation for ceived 27
Cir.2003).
findings
BIA’s
fact “are
residency
pass-
The
and the whereabouts
his
adjudica
conclusive unless
reasonable
port. The nature of these misstatements
compelled to
tor would be
conclude to
plainly supports
the inference drawn
1252(b)(4)(B).
contrary.” 8
The
U.S.C.
the IJ and
BIA that
Chambers knew
knowledge
ques
at the time in
petitioner’s
legally
Woolcock could not
enter the Unit-
See, e.g.,
is a
of fact.
Farm
question
tion
example,
ed States. For
her statements
Brennan,
er
511 U.S.
S.Ct.
Long
that Woolcock lived in
Island
(1994); Weyant
But Chambers does fact that professed not contest that she to believe lied at the regarding Woolcock’s both that Woolcock had been in the Unit- 3. Aliens such as Chambers who have achieved residence in the United States shall not be permanent lawful resident status in Unit- regarded seeking as an admission into the regarded ed seeking States are as admission purposes immigration United States for of the they "engaged United States if have in (iii) laws engaged unless the alien ... in has illegal activity having departed after the Unit- illegal activity having departed after the Unit- 1101(a)(13)(C)(iii) § ed States.” 8 U.S.C. States.”). ed ("An lawfully permanent alien admitted for encourage or of assistance act and firmative years past within ed States an “openly presenting beyond Wool- either had told ment officer years. iden ten with accurate after officials reenter alien to border he cock inherently are not Tapucu citizenship papers,” assertions two and These tification that Chambers (6th contradictory. Assuming Cir. Gonzales, F.3d v. assertion Woolcock’s had believed in vehicle 2005), presence [a] “mere or could reenter alien smuggle an knowledge plan” of [a] 1990, nothing in deportation his after States, Altamirano Gon into United compel Cham the statement about Cir.2005). (9th zales, 427 F.3d re ten-year clock to think bers anything set forth yet has Circuit Our entered time Woolcock started each as to test approaching bright-line and BIA seemed States, the IJ as United not that will will actions or IJ of the Nevertheless, nature neither to believe. an alien finding in the case solely or, support relied suffice the BIA nor — reasoning assisted, induced, this abet- IJ, substantially “encouraged, has —on as knowingly entering finding that ted, illegally in in aided” another or entry. illegal attempted Woolcock’s sisted U.S.C. States. additionally and Instead, expressly each 1182(a)(6)(E)®. do so need not We misstate repeated relied on Chambers’s agents at present not Chambers did here. inferences the reasonable ments information, as with accurate the border conclude We therefore drawn therefrom. she was Tapucu, petitioner did the evi substantial contains the record in the vehicle” “mere[ly] presen[t] finding agency’s dence drove her brother which *6 requisite the acted with that Chambers in Altamira- petitioner the like the border remand, that, towe were knowledge and as innocent qualify an does not no. She the same result reach would agency the reading the facts. bystander have that we likely error the absent even documents no fraudulent The fact Dep’t He Lin v. U.S. Cao See identified. by Woolcock payments were used Cir.2005) (2d Justice, F.3d ample overcome does not made were an adopts (“Certainly explicitly if the IJ BIA’s the IJ’s and evidence de for her basis sufficient alternative and ar- personally findings that Chambers see required.”); termination, no remand for Wool- transportation provide ranged 166-67; Zu Sieive, Li 480 F.3d at also purpose- States and the United cock into Guan, (2d INS, 137-38 453 F.3d v. time officials at fully customs deceived Cir.2006). trav- entry. Chambers attempted of his intent pre-planned eled to Canada Are Sufficient Actions III. Chambers’s in her the border bring Woolcock Under Assistance to Constitute actively return, and she 212(a)(6)(E)(i) her upon car Section about customs officials mislead sought to granting basis for alternative As an that, way in a residency status Woolcock’s argues that petition, for easier believed, made it have of law rise as a matter do actions not There is States. him enter assistance affirmative requisite the IJ which from evidence thus sufficient support, 212(a)(6)(E)® requires. as- that she conclude BIA could and the panels of divided in which cites cases in his abetted, aided Woolcock sisted, or held that have Circuits and Ninth Sixth to enter illegally attempt af requires anti-smuggling statute 212(a)(6)(E)(i) States. Section requires no agency tive alone make, is authorized to more. judge must the propriety of such action solely by the grounds by invoked agen CONCLUSION cy.”); see also Justice, Lin v. Dep’t U.S. 99, 106 (2d Cir.2006). 453 F.3d
For foregoing reasons, Chambers’s petition for review is denied. Moreover, Ms. Chambers corrected or recanted each of her misrepresentations
POGUE, Judge dissenting: during the customs investigation, and ulti The majority opinion correctly mately states provided correct information that the BIA’s conclusion that Ms. Cham- during the investigation. Accord bers violated the alien-smuggling ingly, statute is it seems to me that this case is more based on the agency’s finding that Ms. like the by case cited the majority, Li Zu Chambers had knowledge of INS, Woolcock’s (2d Guan v. 453 F.3d Cir.2006), illegal scheme. The majority opinion also where the court remanded because it could acknowledges I agree the BIA not be “certain that the —and errors below did —that improperly concluded that Ms. play role the decision deny must have known Woolcock’s reentry relief.” Id. at 141. Zu, inAs Li was illegal based on her stated belief agency’s error played here at least “a role he had been in the country within the last deny decision to relief.” Fur Id. years. As the majority notes, thermore, if Ms. as the court in Tapucu ex Chambers believed that plained, Woolcock could is nothing there “illegal about reenter the country any time after driving illegal known alien with admit passed had since his deporta- tedly papers authentic to the American tion, whether Woolcock had previously vio- border examination the border lated imagined ten-year period says guards.” Gonzales, Tapucu 399 F.3d nothing about what (6th Ms. Cir.2005); neces- 739-40 see also Doe v. sarily believed or knew regarding Gonzales, the pro- (7th 484 F.3d 449-50 Cir. priety of his entry 2007) (noting presence at the scene of persecution may not constitute “assis I depart from the majority’s opinion, *7 in tance” the absence of support or encour however, because the BIA’s decision also agement, and further noting that aiding in makes it clear that the agency’s erroneous a cover-up without participation advance in finding Ms. Chambers had knowl —that planning such a cover-up also does not edge of possible Woolcock’s prior reen scheme). constitute in assistance the actual try major the ground for its decision. —was result, As a I cannot with say confidence While the BIA also “found no clear error” the BIA would have reached the same in the IJ’s finding that Ms. Chambers’ result in the error, absence of and it seems “deception at the border reflected guilty to me that the BIA should given knowledge,” the BIA did not state that Ms. opportunity weigh the exculpatory evi Chambers’ misrepresentations provided an dence and make an initial error-free deter alternative basis for its decision. on Based mination as to whether relief is appropri record, this therefore, I believe we should ate. review the decision its grounds. stated
SEC v. Chenery Corp.,
194,
196,
U.S.
Finally, in order to support a conclusion
(1947)
S.Ct.
(“a
that, have it easier made DEPARTMENT HOMELAND U.S. OF To States.” him to enter the United SECURITY, Respondent. statute, however, of the find violation finding hypothetical than a requires more 03-40052-ag(L), Docket Nos. 03-40054- have actions “would petitioner’s ag(con), 03-40056-ag(con), 03- easier;” it it that the actions requires made 40058-ag(con). assisted, Per- actually or aided. abetted made agency haps importantly, more Appeals, Court of United States Rather, the BIA made finding. no such Second Circuit. conclusion, limited nuanced and more rely a viola- Argued: which it did not find Jan. 2007. upon statute, that Ms. Chambers tion July Decided: Woolcock, an Mr. “arranged to meet with from previously deported alien felon, at her fami- aggravated
States as an travel
ly’s so that could home Canada with her and United States In Michelle A. by car.” re Cham-
brother
bers, Similarly, A 1-2. 56 034 deception, claim of
regard majority’s despite that “... agency found alleged belief that respondent’s legally enter Mr. Woolcock
[sic] States, the that the record reflects misrepresenta- made
respondent several officials
tions to the in second-
ary inspection.... ... Specifically [Cham- Agent] that all told three
bers] [the Can-
passengers in the car had traveled to together they togeth- all
ada and that lived Island, York.” at 2. As Long
er New Id. *8 above, Ms. Chambers later corrected
noted ultimate-
or recanted these statements and
ly correct information at the bor- provided during investigation.
der It does expand it role
seem me that is our agency’s findings order to
its conclusion.