*3 PAEZ, Circuit Judges. moval. We hold that Altamirano’s mere presence in the vehicle at the of entry
PAEZ, Judge. Circuit does not constitute alien smuggling under (“Altamirano”) 212(a)(6)(E)(i) Emma peti- Altamirano despite her knowledge tions for review of the Immigra- Board of an alien hiding in the trunk of the (“BIA”) tion Appeals’ order affirming, vehicle. The IJ’s determination of inad decision, streamlined Immigration missibility clearly contrary to plain 212(a)(6)(E)(i) 1. INA provides "Any that: United States in violation of law is inadmissi- any who at knowingly time has encour- ble.” 8 U.S.C. aged, induced, assisted, abetted, or aided other try alien to enter or to to enter the hearing, July 2001 removal At the We provision. statutory meaning of testified husband for review.2 Altamirano and her petition grant therefore on to California to return they decided Background I. forgotten had several May 21 because ex- Mexico, husband at home. Altamirano’s Altamirano, a citizen items Emma their Altamirano, to retrieve that he needed plained a United Miguel is married in order for events certificates daughters’ time of the birth At the citizen. States to reenter here, daughters resided their at issue ac- grant pa- Altamirano needed to a and that pursuant final knew where the pending him Attorney company General because by the role *4 visa testi- He further immediate relative were of the documents located. resolution Altamira- him be- accompanied husband. by filed her petition Altamirano fied depart her to “always together.” allowed they status are parole no’s cause States. reenter the United offi- by immigration questioned When family frequently her Altamirano and inspection following primary cers the On to Mexico. and forth trips back made offi- vehicle, informed the Altamirano the husband, Altamirano, her May father-in-law that her she knew cers that from Ra- traveled daughters their two transport to a friend plans made with had pur- to Tijuana, Mexico mona, California the United States. Martinez-Marin day, when Early the next piñatas. chase had told husband that her admitted She the Unit- attempted to reenter Altamirano also night before.3 She plan of the the her by immigra- was detained ed in the was that Martinez-Marin knew San the at tion officers Alta- into the vehicle. got trunk when she re- Ysidro, Altamirano was California. however, not testified, that she did mirano family the to the turning they de- before were Martinez-Marin see husband, driv- who was along her car with prior his tained; not know name she did father-in-law, permanent and her ing, his not know she did their detention A fourth individu- resident. final destination. Martinez-Marin, a Mexi- al, Juan Manuel Martinez- discovered the When officers Alta- citizen, hiding in the trunk. can primary the during in the trunk Marin husband, law mirano, and her father-in vehicle, they detained the inspection of inwas Martinez-Marin all aware were was not Altamirano Although Altamirano. to enter attempted the trunk when offense, Immi- the a criminal charged with inspec- primary At the States. (“INS”) Service Naturalization gration and the vehi- station, inspected officers tion the against her. proceedings removal initiated Martinez-Marin and discovered cle Ap- with a Notice served her INS The de- subsequently trunk. Altamirano “arriving an she was alleging that pear, States be- to the United admission nied in- encouraged, has “knowingly who smug- alien” in alien engaged allegedly cause she abetted, any oth- assisted, or aided 212(a)(6)(E)(i). duced, INAof in violation gling smuggling The knowledge effort. the had adverse the IJ did not make 2. Because however, concluded, ap- determination, that "the record accept Altamira- credibility IJ of the respondent testimony undisputed as credible. See knew pears no’s Shoafera Cir.2000). INS, prior n. 3 hours smuggling plan several entry.” port of vehicle’s arrival at provided in- Miguel 3. Emma regarding when each testimony consistent try 212(a)(6)(E)(i)—was er alien to enter or to enter not controlled violation of precedent. 3.1(e)(4)(A). law” and was §id. See subject to removal from the United States II. Burden of Proof
pursuant to INA
In the IJ’s decision finding Altami
Following
hearing
30, 2001,
on July
inadmissible,
rano
the IJ concluded that
IJ issued
oral decision. The IJ
government
“the
clear,
provided
co
noted that Altamirano
testified
“she
gent and convincing evidence that respon
was not
planning
involved
212(a)(6)(E)(i)”
dent has violated Section
smuggling attempt” and “was not involved
INA, citing
INS,
Woodby v.
385 U.S.
in the placing of Martinez-Marin into the
(1966).
87 S.Ct.
for § III. INA for applying benefit public cant Id. States.” to the United the IJ’s challenges Altamirano admission 1182(d)(5)(A). § 212(d)(5)(A), 8 U.S.C. she violated § determination re- however, not be status, “shall 212(a)(6)(E)® present because Parole id., alien,” that Martinez- an admission and knew as in the vehicle garded of the “lawful in the trunk at the is not a Marin was 101(a)(13)(A),8 here, When, Id. the BIA affirms States.” as entry. 1101(a)(13)(A).4 review opinion, without IJ’s decision action. agency final the IJ’s decision as he erred when the IJ Accordingly, (9th 808, 809 Ashcroft, 366 F.3d Kebede v. govern on the the burden placed Cir.2004) v. Ash (citing Falcon Carriche INA under parolee aAs ment. Cir.2003)). 845, 849 croft, 350 F.3d applicant 212(d)(5), con legal questions purely review “We attempted enter when she admission immigration meaning cerning She May States on Ashcroft, Lagandaon laws de novo.” establishing the burden bore therefore Cir.2004) (citing 983, 987 beyond doubt “clearly she was INS, 261 F.3d Murillo-Espinoza is not inadmis to be admitted entitled (9th Cir.2001)). “offers As Altamirano Id. 1182.” under section sible fact, findings objections to the IJ’s no 1229a(c)(2)(A). 240(c)(2)(A), 8 U.S.C. that we legal question *6 presents this case of the Nonetheless, allocation the improper Perez-Enriquez v. Gon de novo.” review our ulti not affect does proof of burden Cir.2005) (9th zales, 1081 411 F.3d Here, deter of case. disposition this mate F.3d Ashcroft, 360 (citing Shivaraman was inadmissi mining whether Altamirano Cir.2004) (9th Ghaly v. 1145 212(a)(6)(E)(i) is a § matter INA ble under Cir.1995)). INS, 1429 58 Because statutory construction. of Altamira- that determined IJ the alien The text of that the plain conclude knowl with in the vehicle presence no’s encompass does not provision smuggling in hiding that Martinez-Marin was edge the conduct, of the allocation Altamirano’s a violation constituted trunk the the dispositive of is not burden or United in international 101(a)(13) part: alien interdicted in relevant provides, INA brought into States waters (A) and "admitted” The terms "admission” means, or not to alien, by any whether mean, the lawful respect to an with regardless of designated port-of-entry, and the United States entry the into alien by arriving an alien transport. inspection authorization An after the means immigration paroled pursuant officer. if such even remains (B) paroled under section Act, alien who is An 212(d)(5) except that an of the section 1182(d)(5) be con- ... shall not this title 1, 1997, April paroled before was alien who been admitted. to have sidered pa granted advance was an who or alien 1101(a)(13) Fur U.S.C. 8 and ob applied for the alien role which ther, (2000) provides: 1.1(q) 8 C.F.R. prior to the United States the tained in applicant arriving alien means an The term the return to departure from and alien's coming attempting to for admission an considered not be shall port-of- at a come into purposes of section arriving alien through seeking entry, transit or an alien 235(b)(1)(A)(i) Act. of the port-of-entry, at a 592 212(a)(6)(E)(i). (9th Cir.2004). 212(a)(6)(E)(i) emphasized The IJ Section “any that, conclusion was not on the
this based provides “[a]ny any alien who at time involving conspiracy ory entered induced, has knowingly encouraged, assist husband, respondent, her and her father- ed, abetted, or aided alien other Rather, in-law.” the IJ found that when try enter or to enter the United States entry, arrived at in violation of law is inadmissible.” she, father-in-law, like her husband and 1999).5 V (Supp. that “there was an knew undocumented plain meaning statutory provi of this unauthorized Mexican national in requires sion help, affirmative act of noted, of the car.” As the IJ con trunk assistance, Here, or encouragement. be knowledge, “[w]ith cluded re affirmatively cause Altamirano did not act in spondent present the vehicle and Martinez-Marin, to assist she did not en equally culpable point, as at that with in alien gage smuggling. she was That husband, father-in-law, and her in present vehicle and knew Mar to assist and aid Mr. Martinez-Ma effort tinez-Marin was the trunk does not rin’s unlawful into the United States to a amount violation of sum, reasoned, from Mexico.” In IJ Thus, the IJ’s conclusion that Altamirano’s Although respondent it is true that does presence mere and knowledge constituted not appear to have been involved smuggling “clearly contrary stages planning of the at- plain and sensible meaning of the statute.” tempt, physi- or that she assisted INS, Kankamalage 335 F.3d placing cal acts of Mr. Martinez-Marin (9th Cir.2003). vehicle, into the trunk of she none- Indeed, when courts or the BIA have theless made as equally culpable herself determined that an alien is removable un husband, as her father-in-law and when der the INA for having engaged agreed, knowledge having of Mr. smuggling, the alien provided some presence Martinez-Marin’s the trunk form of affirmative assistance to the ille vehicle, to accompanying her fam- See, gally entering alien. e.g., Moran v. ily members to the United States. Ashcroft, 395 F.3d 1091-92 Cir. *7 however, reasoning, contrary IJ’s is 2005) (stating that alien paid smugglers to
to the alien smuggling provision.
his
bring
wife and child to the United
States);
1160,
Sidhu v. Ashcroft,
“The
for
F.3d
starting point
our inter
368
(9th Cir.2004)
pretation
always
of a
1162
(explaining
statute is
its lan
that alien
guage.” Cmty.
agreed in
help
nephew
Creative Non-Violence
advance to
for
Reid,
730, 739,
enter,
2166,
v.
490
illegally
guided
through
U.S.
109 S.Ct.
him
immi
(1989).
begin by
gration
593
driving re-
friends shared
Cir.2000)
cu and three
paid
alien
(stating that
trip from
during
return
sponsibilities
to
and child
his wife
a
bring
to
smugglers
Toronto,
Chicago
where
back
Ash
Canada
States);
see also Olowo
the United
(em
(7th Cir.2004)
stopped
at 737.
they resided.
Id.
When
692, 697
croft, 368 F.3d
driving.
entry, Tapucu
at the
tickets
plane
that alien delivered
phasizing
Deveci,
group,
Kirkor
member of
hid their One
citizens and
Nigerian
to three
living
citizen who had been
was a Canadian
inspec
the INS
from
passports
Nigerian
testified
Chicago.
Tapucu
in
Id.
illegally
false information
tors,
provided
and also
living
that Deveci had been
that he knew
to assist
to the INS
documents
and false
States,
he
but
be-
illegally
illegally); San
child to enter
Nigerian
family
applied
had
for
that Deveci’s
INS,
lieved
725 F.2d
63
chez-Marquez
for him.
Id.
residence status
Cir.1984)
permanent
pre-ar-
that alien
(explaining
Tapucu engaged
that
The IJ concluded
seven aliens
and drove
ranged to drive
driving
because “he was
An
to San
border
from the Texas-Mexico
border,
Arthur,
time it reached the
the van at the
16 I. & Dec.
tonio);
N.
Matter of
(de
liv-
(B.I.A.1978)
knew that Deveci was
Tapucu
because
558, 558,
Moreover, recently has Circuit the Sixth smuggler may tagged as “one be under is not inadmissible held that an alien committing single affirma- aliens without per- alien did not if the *8 agree with Id. at 741. We illicit act.” tive act of assistance. See an affirmative form interpretation of Gonzales, 736, the Sixth Circuit’s 740-42 399 F.3d v. Tapucu Cir.2005). Morhay Tapu- In Tapucu, induce), they might actu- or (encourage and Department of State the U.S. 6. We also note bringing an alien physically interpretation ally of involve Foreign Manual's Affairs (aid illegally and 212(a)(6)(E)(i): States the United assist). "smuggler” might which a The actions for Foreign 9 U.S. Dep't They State, ineligible are numerous. Aff. Manual of be found Nonetheless, (1995). "ac- some § 40.86 n. 5 job offering an alien a as could be as little alien inadmis- to render an must occur tion” where it is clear circumstances under smug- of alien on the basis or excludable States sible alien will not enter the place took here. gling. such action accept employment No legally the in order to 594 by is buttressed the well- It
Our conclusion
is well-established that “[i]n
meaning of
and
aiding
abet
established
to aid
order
and abet another to
a
commit
the
criminal
ting.
consider
traditional
We
it
necessary
crime
that a
‘in
defendant
abetting doctrine here be
aiding
law
and
sort
some
associate himself with
ven
the
this con
imports
cause
ture, that he
participate
it as in some
law
cept from criminal
and because the
thing
about,
that he
to bring
wishes
”
provisions
the INA
of
he seek
his
to make it
action
succeed.’
analyzed
aiding
have
as
generally
been
States,
Nye & Nissen v. United
336 U.S.
See, e.g.,
and
Matter
abetting statutes.
of
619,
613,
766,
(1949)
69 S.Ct.
595 here, Altamirano’s mere Similarly, Further, consistently have held knowledge with in the vehicle presence at the scene presence that “mere was the trunk that Martinez-Marin the crime is knowledge that and crime aiding abetting and or not amount does to sustain enough” not being committed entry of an alien. Sec assisting illegal aiding abetting. and Unit for a conviction an act of assis requires tion Bancalari, 1425,1430 110 F.3d ed States v. There is no evi encouragement. or tance (9th v. Cir.1997); States see also United affirmative act here. such dence 1277, 1282 F.2d 966 Negrete-Gonzales, argues that Altamirano’s government The (9th Rubio- Cir.1992); v. an air of ear presence provided (9th Villareal, 1495, 1500-02 Cir. F.2d 927 that assisted normalcy legitimacy F.2d 1991); Burgess, v. 791 States United illegal entry. Martinez-Marin’s ensuring (9th Cir.1986); v. 676, Diaz-Rosendo 680 This, however, for the was not the basis States, F.2d 944 Cir. 364 United appel “may accept not IJ’s decision. We prove must prosecution The for post hoc rationalizations late counsel’s not participant, a “the defendant action; that an Chenery requires agency knowing spectator.” a merely upheld, if discretionary order be agency’s Gaskins, 460 v. 849 all, same basis articulated at on the Cir.1988). v. Sanchez Burling by agency itself....” order (9th Cir.1991), for Mata, F.2d 1166 925 Lines, 371 Truck Inc. United ton there was instance, whether we considered 168-69, 9 L.Ed.2d 83 S.Ct. U.S. conviction support evidence sufficient (1962) Chenery Corp., (citing 207 SEC in abetting possession with aiding and 194, 196, L.Ed. 67 S.Ct. 332 U.S. evi Despite (1947)). narcotics. to distribute tent passenger awas that Sanchez-Mata dence Further, support not the record does of mari carrying pounds in a vehicle is no evidence that theory. There this marijua likely knew the
juana, and that he presence, passenger’s or a Altamirano’s strong of its vehicle because na was the immi- general, would make presence odor, that “the evidence we concluded suspi- at the border less gration officers aiding and abet against Sanchez-Mata im- that the Nor is there evidence cious. pres Sanchez-Mata’s ting is nonexistent. that Altamirano officers knew migration cannot trips in the car made passenger regularly ence as and her husband It is theory.” to Mexico. abetting the United States aiding from support husband added). likely that Altamirano’s just as (emphasis Id. at 1169 merely enough defendant that the It is not may guilty of [crime be found A defendant committing person personally charged], the defendant associated with even if constituting crime, unintentionally act or acts unknowingly commit the did not in its com- aided and abetted person, the crime but helpful things that were did guilty of prove a To defendant mission. scene of the crime. present at the or was abetting, government must aiding beyond a reason- show The evidence must prove beyond a doubt: reasonable acted with doubt that the defendant able First, charged] was committed [crime helping knowledge and intention of someone; charged]. person [crime commit Second, knowingly and inten- the defendant required prove is not counseled, commanded, aided, in- tionally actually commit- precisely which defendant person to commit procured that duced or aided defendant and which ted the crime charged]; and [crime element of each and abetted. Third, the crime acted before the defendant completed. *10 routinely made such I do not think IJ was to compelled and father-in-law the trips Altamirano. We therefore without affirmatively that did not find Altamirano government’s litigation the accept cannot her fa- encourage assist husband and the for theory, which neither formed basis question ther-in-law. The is not whether support nor in the IJ’s determination finds knowledge illegal activity Altamirano’s the record. presence and mere in the car to suffice Thus, that we conclude Altamirano’s statute, bring her within the terms of the presence the vehicle knowl mere with presence whether her but deliberate in the did not edge plan constitute alien border, car when it the knowing crossed smuggling under that her husband and father-in-law were contrary clearly IJ’s determination to the illegal an alien in the trunk statutory requirement contradicted the car, supports finding the that joined a that an affirmative act a violation involve stayed them ear and the car for encouragement. assistance We purpose facilitating the the smuggling. petition review.9 grant therefore the for does, It getting because Altamirano’s Conclusion car and not out IV. getting the at the border were affirmative acts assisted the that Altamirano was an We conclude smuggling plan making it less the applicant for admission and bears bur likely that the car 1129a(c)(2) stopped. would be Alta- See proof. den of 1999). Nonetheless, hold mirano knew about her husband’s and fa- 212(a)(6)(E)(i) affirma requires INA plan ther-in-law’s smuggle Martinez- encouragement tive act of assistance or country Marin into the in the trunk of the and that conclusion that Altamira- the IJ’s agreed car when she to travel with them no violated without such Tijuana from back Ramona at 4:30 a.m. clearly contrary the plain act She admitted that one go no forced her to language grant of the INA. We therefore with them. also Altamirano knew that she petition review and remand to for have could left the car and walked across IJ to grant with instructions Altamirano’s border, rather than remain pas- as a proceedings motion to terminate removal senger, when the car reached primary against her. And, inspection contrary station. PETITION GRANTED. gave account her about husband the rea- returning son were to the United RYMER, Judge, concurring Circuit why States and had to come part dissenting part: along, she could not give expla- coherent I agree immigration judge im trip. nation the reason their To- properly placed the burden of re gether, support these facts reasonable garding inadmissibility on the inference that Altamirano on fully rather than And while I on Altamirano. program, thereby affirmatively board the generally agree majority’s with the con illegal helping bring the across 212(a)(6)(E)® struction of of the Immi border. (INA), gration Nationality Act 1182(a)(6)(E)(i), and the well-es would, therefore, I deny petition. aiding abetting principles
tablished embodies, which it I part company over application principles those and the
statute to the facts of this case. light disposition, streamlining appeal. of our we need not erred argument address Altamirano’s BIA