Parra-Rojas v. Attorney General United States , 747 F.3d 164 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-1828
_____________
CARLOS H. PARRA-ROJAS,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No.: A038-599-655)
Immigration Judge: Honorable Walter A. Durling
Argued on January 16, 2014
BEFORE: RENDELL, ROTH and BARRY, Circuit Judges
(Opinion filed: March 26, 2014)
Thomas E. Moseley, Esquire (Argued)
Law Offices of Thomas E. Moseley, Esquire
One Gateway Center
Suite 2600
Newark, NJ 07102
Counsel for Petitioner
Eric H. Holder, Jr.
Attorney General of the United States
Stuart F. Delery, Esquire
Acting Assistant Attorney General
Civil Division
Francis W. Fraser, Esquire
Senior Litigation Counsel
Dawn S. Conrad, Esquire (Argued)
Trial Attorney
Office of Immigration Litigation, Civil Division
United States Department of Justice
Ben Franklin Station
P. O. Box 878
Washington, DC 20044
Counsel for Respondent
2
OPINION
RENDELL, Circuit Judge:
Petitioner Carlos Parra-Rojas was convicted of
Bringing In or Harboring Aliens for Financial Gain, in
violation of section 274(a)(2)(B)(ii) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1324(a)(2)(B)(ii) and 18
U.S.C. § 2. Petitioner subsequently applied for adjustment of
status under 8 U.S.C. § 1255(a). The Immigration Judge
denied Petitioner’s application under 8 U.S.C. §
1182(a)(6)(E)(i) (the “smuggling bar”), which renders an
alien inadmissible if he has “knowingly . . . encouraged,
induced, assisted, abetted, or aided any other alien to enter or
to try to enter the United States in violation of law”. The
Board of Immigration Appeals affirmed the IJ’s decision. For
the reasons set forth below, we will reverse.
I. Background
Petitioner is a native and citizen of Colombia. He was
admitted to the United States at age 20 as a lawful permanent
resident in 1984. He is married to a U.S. citizen and has a
teenage son, also a U.S. citizen.
From 1984 through 2009, Petitioner lived in the United
States without incident. On November 16, 2009, he was
stopped at the High Peaks checkpoint near North Hudson,
New York, with two passengers in his car. Upon questioning,
3
Petitioner admitted that he was aware the two men were
illegal aliens, and that he had picked them up in the Saint
Regis Mohawk Reservation, on the U.S. side of the Canadian
border. He stated that he was to be paid $1,000 to drive the
men from the border region to locations in Queens, New
York. He further admitted that he had performed such work
on two prior occasions, and was generally paid approximately
$500 per alien, plus expenses.
Petitioner was charged with Bringing In and Harboring
Aliens in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18
U.S.C. § 2 (the “brings to” offense), which provides, in
relevant part:
(2) Any person who, knowing or
in reckless disregard of the fact
that an alien has not received prior
official authorization to come to,
enter, or reside in the United
States, brings to or attempts to
bring to the United States in any
manner whatsoever, such alien,
regardless of any official action
which may be taken with respect
to such alien shall, for each alien
in respect to whom a violation of
this paragraph occurs . . . (B) in
the case of . . . (ii) an offense done
for the purpose of commercial
advantage or private financial
gain . . . be fined under Title 18
4
and shall be imprisoned . . . not
less than 3 nor more than 10 years
...
Petitioner was also charged with Transporting Illegal Aliens
in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(B)(i) (the
“transporting offense”), which provides, in relevant part:
(1)(A) Any person who . . . (ii)
knowing or in reckless disregard
of the fact that an alien has come
to, entered, or remains in the
United States in violation of law;
transports, or moves or attempts
to transport or move such alien
within the United States by means
of transportation or otherwise, in
furtherance of such violation of
law. . . shall . . . (a)(1)(B)(i) in the
case . . . the offense was done for
the purpose of commercial
advantage or private financial
gain, be fined . . . , imprisoned not
more than 10 years, or both . . .
Petitioner pled guilty to the first charge. However, the
second was dismissed on the motion of the Government. He
was sentenced to 18 months’ imprisonment.
On August 22, 2011, the Department of Homeland
Security (DHS) filed a Notice to Appear with the Immigration
Court, charging Petitioner with removability under INA §
237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), which states
5
that “[a]ny alien who is convicted of an aggravated felony at
any time after admission is deportable.” Specifically,
Petitioner was charged with committing an aggravated felony
as defined by INA § 101(a)(43)(N), 8 U.S.C. §
1101(a)(43)(N), which specifically includes conduct under §
1324(a)(2). On September 13, 2011, Petitioner appeared
before the Immigration Judge (IJ) and conceded the fact of
his conviction and removability. However, Petitioner
informed the IJ that he intended to apply for adjustment of
status under 8 U.S.C. § 1255(a), which provides that such
adjustment may be granted in the discretion of the Attorney
General to aliens who are eligible to receive an immigrant
visa and are “admissible to the United States for permanent
residence”.1
The Government conceded that an aggravated felony
conviction does not, by itself, render an alien ineligible for
adjustment of status based on inadmissibility. However, the
Government urged that Petitioner’s conviction under §
1324(a)(2)(B)(ii) rendered him inadmissible under 8 U.S.C. §
1182(a)(6)(E)(i), which provides that, “an alien who at any
time knowingly has encouraged, induced, assisted, abetted, or
aided any other alien to enter or try to enter the United States
in violation of law is inadmissible.”
Following briefing by the parties, on February 23,
2012, the IJ issued an interlocutory order denying Petitioner’s
1
Petitioner contends that he was eligible for an immigrant visa
by virtue of his marriage to a U.S. citizen. Petitioner is the
beneficiary of an approved I-130 Petition for Alien Relative
filed by his wife. (A.R. 244.)
6
application for adjustment of status. The IJ first recognized
that “a conviction is not required for a finding of
inadmissibility pursuant to [§ 1182(a)(6)(E)(i)]. However,
since [Petitioner] was convicted [] , the court will address
these convictions [sic] and the conduct required for the
offenses.” (A.R. 267.) The IJ first discussed Petitioner’s
“conviction” under 8 U.S.C. § 1324(a)(1)(A)(ii) for
transporting an illegal alien within the United States. This
was clear error, because, as noted supra, this charge was
previously dismissed on motion of the Government;
accordingly, Petitioner was never convicted of that offense.
Regarding Petitioner’s actual conviction under §
1324(a)(2)(B)(ii), the IJ noted that neither the Third Circuit
nor the Board of Immigration Appeals (BIA) had issued
binding precedent regarding whether a conviction for a
“brings to” offense renders an alien inadmissible under the §
1182 smuggling bar, and that the BIA had issued two
unpublished, non-precedential decisions on the issue that
appeared to contradict one another.2 The IJ referenced
2
In Matter of Sergia Arce-Santibanez, 2006 WL 3252534(BIA 2006), the BIA held that an alien’s conviction for a
“brings to” offense rendered her inadmissible under §
1182(a)(6)(E)(i), despite the fact that the alien’s conduct was
limited to transporting aliens after they had already entered
the United States. In that case, the BIA found that the
language of the “brings to” offense “clearly falls within the
definition of” § 1182(a)(6)(E)(i), and that it was “irrelevant
that the respondent may not have actually aided the illegal
entry of an alien; she was convicted of doing so.” In Matter
of Antonio Reyes-Huereca, 2008 WL 486877 (BIA 2008), the
alien’s conviction was not for a “brings to” offense, but rather
7
Petitioner’s Pre-Sentence Investigation Report (PSR), which
stated that Petitioner knew that he was involved in an alien
smuggling organization and that he had smuggled aliens on
two occasions prior to his arrest. “However,” the IJ noted,
“the PSR makes plain that [his] conviction is based on
transporting aliens who were already in the United States,
rather than sheparding [sic] them across the border.” (A.R.
269) (emphasis in original).
The IJ reasoned that Petitioner’s conduct, though
limited to transporting aliens within the United States, was
“integral to the overall scheme of alien smuggling.” (A.R.
269-70.) Accordingly, the IJ held that Petitioner was
inadmissible “due to [his] conviction.” (A.R. 270, citing
Soriano v. Gonzales, 484 F.3d 318 (5th Cir. 2007).) Because
the IJ appeared to believe Petitioner had been convicted of
both the transporting offense and the “brings to” offense, it is
unclear whether his reference to “such conviction” referred to
the (mistaken) transporting conviction, to the “brings to”
conviction, or to both.3 The IJ issued a final decision
for aiding and abetting the transportation of an undocumented
alien within the United States. Id. The BIA held that the
transporting conviction, “standing alone . . . does not support
a . . . charge of inadmissibility.” Id.3
The IJ’s citation to Soriano, which he originally discussed in
the context of the transporting offense, suggests that he may
have intended his holding to mean that Petitioner’s
transporting conviction rendered him inadmissible under §
1182(a)(6)(E)(i). (A.R. 270.) Again, such holding would
have been in error, as Petitioner was not convicted of a
transporting offense.
8
ordering Petitioner removed to Colombia on November 27,
2012. (A.R. 40.)
On appeal, the BIA affirmed the IJ’s decision to
pretermit Petitioner’s application for adjustment of status,
holding that Petitioner had not met his burden to show that he
was not inadmissible under § 1182(a)(6)(E)(i). The BIA
rejected Petitioner’s argument that the language of §
1182(a)(6)(E)(i), which prohibits assisting, abetting, or aiding
aliens “to enter or attempt to enter” the United States, is more
narrow than the criminal “brings to” statute under which he
was convicted. The BIA noted that it is not necessary that an
individual be physically present at the border crossing to be
held inadmissible under § 1182(a)(6)(E)(i). Rather, the BIA
opined, it is enough that Petitioner participated in a scheme to
aid illegal entry. Accordingly, the BIA concluded that
“bringing or attempting to bring an alien to the United States
corresponds with assisting, abetting or aiding an alien
entering or trying to enter the United States.” (A.R. 3.)
Petitioner also argued that his conviction for the
“brings to” offense did not prove a violation of §
1182(a)(6)(E)(i) because the criminal statute requires that the
individual charged have acted either “knowing[ly] or in
reckless disregard of the fact that an alien has not received
prior authorization” to enter the United States, while §
1182(a)(6)(E)(i) requires that the alien have acted
knowingly.4 The BIA noted that “[t]he record of conviction
is inconclusive, as the Indictment charged the [Petitioner] in
the disjunctive of having committed the act either knowingly
4
The IJ did not address this argument in his February 23
order, though it was raised in the parties’ briefing.
9
or with a reckless disregard.”5 (A.R. 4.) To determine
whether Petitioner’s conduct had been knowing or reckless,
the BIA examined the PSR, which stated that Petitioner had
admitted to knowing that the aliens he transported lacked
authorization to come to the United States. Accordingly, the
BIA held that Petitioner had not established that he did not act
with the requisite mens rea, and affirmed the IJ’s finding of
inadmissibility.6
On appeal, Petitioner raises two arguments. First,
Petitioner argues that his conviction for the “brings to”
offense did not render him inadmissible under §
1182(a)(6)(E)(i). He argues that the record of conviction
alone fails to establish that he acted with the requisite mens
rea, and that the BIA engaged in improper fact-finding by
examining the PSR to determine that he acted with
knowledge that the aliens lacked authorization to enter the
United States. Nor, he argues, does the statute of conviction
establish that his conduct satisfied the requirements of §
1182(a)(6)(E)(i), because the language of the “brings to”
offense is broader than that of the smuggling bar, which
5
As Petitioner notes in his brief (Pet. Br. 18), this statement
was error, as the Indictment in fact charged Petitioner
conjunctively, as having acted knowingly and in reckless
disregard. (See A.R. 155.)
6
Because the BIA held that Petitioner was inadmissible due
to his conviction under § 1324(a)(1)(A)(ii), it declined to
reach whether his “conviction” for the transporting offense
under § 1324(a)(1)(A)(ii) also rendered him inadmissible.
(A.R. 4.) Again, this was in error, as Petitioner was not
convicted of a transporting offense.
10
requires assistance with the actual entry of the alien into the
United States.
Second, Petitioner argues that, setting aside the statute
of conviction and examining his actual conduct, he is not
inadmissible under § 1182(a)(6)(E)(i) because he did not have
any involvement whatsoever with the aliens’ actual entry into
the United States, but merely transported them within the
United States after their entry was complete.
II. Standard of Review
We review decisions of the BIA under INA § 242, 8
U.S.C. § 1252. Our review is limited to constitutional claims
and questions of law. 8 U.S.C. § 1252(a)(2)(D). We exercise
plenary review over the BIA’s legal conclusions, recognizing
that the BIA’s interpretation of the INA is entitled to
deference. See Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir.
2004). The burden is on the alien seeking adjustment of
status to demonstrate that he is admissible. 8 U.S.C. §
1229a(c)(4)(A)(i). We will reverse the BIA’s ultimate
determination of inadmissibility only if it is “manifestly
contrary to law.” 8 U.S.C. § 1252(b)(4)(C).
III. Discussion
A. Relevance of the Conviction
The Government’s argument, in a nutshell, is that the
requirements of the § 1182(a)(6)(E)(i) smuggling bar overlap
with those of the criminal “brings to” offense, and therefore,
because Petitioner was convicted of a “brings to” offense, his
11
conduct must also render him inadmissible under §
1182(a)(6)(E)(i). We disagree.
As an initial matter, it is undisputed that an alien need
not be charged with or convicted of any criminal offense in
order to be deemed inadmissible under the smuggling bar.
See Barradas v. Holder, 582 F.3d 754, 761 and n.4 (7th Cir.
2009). Indeed, the IJ conceded this in his February 23 order.
(A.R. 267.) Accordingly, courts deciding admissibility under
§ 1182(a)(6)(E)(i) typically examine the underlying conduct
at issue. See, e.g., Ramos v. Holder, 660 F.3d 200 (4th Cir.
2011); Urzua Covarrubias v. Gonzales, 487 F.3d 742 (9th
Cir. 2007); Soriano, 484 F.3d 318; see also Fernandez v.
Holder, 422 Fed. App’x 341, 343 (5th Cir. 2011) (under §
1182(a)(6)(E)(i), “the analysis focuses on the actual conduct
rather than on a conviction for a criminal offense”) (citing
Soriano). The Government has not pointed to any legal
authority for the proposition that a court should consider the
fact of Petitioner’s conviction, rather than his actual conduct,
in determining admissibility under § 1182(a)(6)(E)(i), and we
decline to read into the INA any such requirement here.
Accordingly, because Petitioner’s conviction for the “brings
to” offense is not determinative of his admissibility under §
1182(a)(6)(E)(i), we look to Petitioner’s actual conduct to
determine whether he is inadmissible.7
7
Even if Petitioner’s conviction under the “brings to” statute
must be considered, we disagree with the BIA that the
requirements of that statute necessarily overlap with those of
the smuggling bar. As originally drafted, 8 U.S.C. § 1324barred “bringing aliens into” the United States, a phrase that
certain courts interpreted as synonymous with “entering” the
United States. See, e.g., United States v. Anaya, 509 F. Supp.
12B. Petitioner’s Conduct
We assume, without deciding, that we may look to
Petitioner’s PSR, as the IJ and BIA did, to inform ourselves
of the conduct underlying the BIA’s finding of
inadmissibility. Because the PSR provides additional facts
regarding Petitioner’s activities beyond those contained in the
record of conviction or the proceedings below, we summarize
those facts here.
A few months prior to his arrest, Petitioner was laid off
from a period of long-term employment and had been unable
to find work. As he discussed his situation with several other
people at a Colombian bakery, he was approached by a man
he came to know as “Fernando”, who had overheard the
289, 299 (S.D. Fla. 1980). In response, “[d]eliberately
overruling case law requiring entry to sustain a smuggling
conviction, Congress replaced the words ‘brings into’ with
the words ‘brings to.’” United States v. Gonzalez-Torres, 309
F.3d 594, 599 (9th Cir. 2002) (citing H.R. Rep. No. 682(1),
99th Cong., 2d Sess. 65 (1986)). On the other hand, despite
amending the civil smuggling statute on numerous occasions,
including eliminating the “for gain” requirement, Congress
has retained the words “encouraged, induced, assisted,
abetted, or aided any other alien to enter or to try to enter the
United States . . . .” (emphasis added) in the civil smuggling
statute, encompassing a narrower range of conduct than the
words “brings to.” Because the criminal statute is broader
than the civil statute, it is inappropriate to hold Petitioner’s
conviction under the criminal statute to be determinative of
whether he is inadmissible under the civil smuggling statute
without inquiring into his actual conduct.
13
conversation. (A.R. 164.) Fernando indicated that he knew
of an employment opportunity, and he and Petitioner
exchanged contact information. Fernando later contacted
Petitioner and informed him that he could make money by
“driving to upstate New York and picking up people.” (A.R.
164.) Fernando put Petitioner in contact with another person
who Petitioner came to know as “Cale.” Though Petitioner
never met Cale, he believed that Cale was Colombian and ran
a smuggling operation from Canada. (A.R. 162.)
Petitioner’s first trip for Cale took place in early
October 2009. He was paid $1,300 to pick up two aliens in
Hogansburg, NY. (A.R. 162-63.) The second trip occurred
approximately two weeks later, again in Hogansburg, and
Petitioner was paid $1,000 to pick up three aliens. (A.R.
163.) On each trip, en route to and from the pick-up
locations, Petitioner was in regular contact with Cale, who
gave him detailed instructions. (A.R. 164.) His third and
final trip, which led to his arrest, took place on November 17,
2009. (A.R. 162-63.) Again, Petitioner picked up the two
aliens in Hogansburg. (A.R. at 163.) The record indicates
that they had each been in the United States for several days
at the time Petitioner picked them up. (A.R. 162.)
In the context of immigration law, “to enter” is a term
of art referring to an alien crossing the United States border
free from official restraint. United States v. Gonzalez-Torres,
309 F.3d 594, 598 (9th Cir. 2002); see also United States v.
Rivera-Relle, 333 F.3d 914, 919 (9th Cir. 2003).
Accordingly, to be held inadmissible for having “encouraged,
induced, assisted, abetted, or aided any other alien to enter or
to try to enter the United States,” § 1182(a)(6)(E)(i), an
individual must have performed one of these actions with
14
respect to the actual entry of an alien into the United States.
See also Tapucu v. Gonzalez, 399 F.3d 736, 740 (6th Cir.
2005) (“[T]he provision . . . requires an affirmative and illicit
act of assistance in shepherding someone across the border.”).
It is certainly true that, to be inadmissible under the
smuggling bar, an individual need not be physically present at
the border crossing. However, here, there is no evidence that
Petitioner performed any act encouraging, facilitating, or
otherwise relating to the aliens’ entry into the United States.
The record contains no indication that Petitioner knew or had
contact with any of the aliens prior to transporting them after
they had already been dropped off inside the United States.
See Urzua Covarrubias, 487 F.3d at 747 (“[W]e now hold
that alien smuggling as defined in § 1182(a)(6)(E)(i) . . .
continues until the initial transporter who brings the aliens to
the United States ceases to transport the aliens.”). Nor is
there any evidence that Petitioner provided any financial or
other assistance to the aliens he transported prior to their
entry into the country. As the IJ acknowledged, Petitioner’s
conduct was strictly limited to picking up the aliens once they
had already crossed the border and transporting them from
one area in the United States to another. (A.R. 269.)
Accordingly, by the plain text of the statute,
§ 1182(a)(6)(E)(i) does not apply to Petitioner’s conduct.8
8
Indeed, in United States v. Lopez, 484 F.3d 1186 (9th Cir.
2006), the Ninth Circuit found that conduct similar to that at
issue here did not even constitute a “brings to” offense under
§ 1324(a)(2). In, Lopez, an alien made arrangements with
another person to pick up several aliens who had already
crossed the border into the United States, and to drive them to
El Centro, California. Sitting en banc, the Ninth Circuit held
15
To be sure, there are cases finding an individual
inadmissible where he did not actually cross the border with
other aliens but merely met them inside the United States and
transported them thereafter. However, in those cases, the
alien had personal involvement with the smuggled aliens
prior to their entry that constituted “assistance” or
“inducement”. For example, in Ramos, parents did not
actually cross the border with their four children, but rather
sent each child money to pay a smuggler to help them do so.
The court held that “an affirmative act that facilitates the
illegal entry, such as financial assistance, may suffice” to
satisfy § 1182(a)(6)(E)(i). Ramos, 660 F.3d at 205; see also
Hernandez-Guadarama v. Ashcroft, 394 F.3d 674, 676 (9th
Cir. 2005) (alien picked up seven other aliens in Mexico and
drove them to the border, and arranged to pick them up after
they crossed over into the United States and transport them to
Washington); Sanchez-Marquez v. INS, 725 F.2d 61 (7th Cir.
1983) (alien found inadmissible under the precursor to the
that “the offense of bringing an alien to the United States
terminates . . . when the person who transports the aliens to
the country terminates his act of transportation and drops off
the aliens in the United States.” Id. at 1191. The court noted
that “a person who moves aliens from one location in the
United States to another has not brought those aliens ‘to’ the
United States, has not acted extraterritorially, and has not
committed a ‘brings to’ offense.” Id. at 1195. In holding
thus, the court overruled its previous decision in United States
v. Ramirez-Martinez, 273 F.3d 903 (9th Cir. 2001), which had
held that “if the defendant is involved in any ‘concerted
action’ to bring an illegal alien to the United States he is
guilty of the ‘bringing to’ crime.” Id. at 1209 (Bea, J.,
dissenting).
16
smuggling deportation provision when he met seven aliens in
Mexico and promised to drive them from San Antonio to
Chicago if they met him on the American side of the border);
Matter of Corral-Fragaso, 1966 BIA LEXIS 3 (1966) (while
visiting Mexico, alien made arrangements with another alien
to pick him up in El Paso and take him to Chicago). In each
of these cases, the individual charged with inadmissibility
made arrangements with an alien before the latter entered the
United States, and either provided assistance in facilitating
the entry or induced the alien to enter the country by
promising transportation upon arrival.
It appears that the only case where, as here, an
individual has been found to be inadmissible under §
1182(a)(6)(E)(i) absent evidence that he had any actual
involvement with the smuggled aliens prior to the their entry
into the United States is Soriano. In Soriano, relied upon
heavily by the Government, the accused alien made contact
with three other aliens in a restaurant in El Paso, Texas, and
drove them to a gas station. The court found Soriano
inadmissible, stating that “[a]ny alien seeking admission to
the United States who participates in a scheme to aid other
aliens in illegal entry is inadmissible under the language of §
1182, regardless of whether the individual was present at the
border crossing.” Soriano, 484 F.3d at 321 (citing Sanchez-
Marquez). However, the opinion does not indicate what
precise conduct Soriano was found to have engaged in,
whether he had known the aliens prior to their entry to the
United States or whether he had personal involvement with
their entry into the country. Here, on the other hand, the
record is clear that Petitioner had no involvement with the
aliens prior to their entry to the United States, did not provide
any assistance, financial or otherwise, in their entry, and did
17
not commit any other “affirmative act” that encouraged,
induced, assisted, abetted, or aided the aliens’ entry, as
required by § 1182(a)(6)(E)(i).
Moreover, the INA creates a separate crime—the
transporting offense—that more appropriately encompasses
Petitioner’s actual conduct (although, as noted above,
Petitioner was not convicted of a transporting offense). Had
Congress wished to include transportation of aliens within the
United States as a ban to admissibility, as it did with the
smuggling bar, it presumably could have done so. However,
absent any evidence of an intent to expand the reach of the
otherwise plain language of § 1182(a)(6)(E)(i) to include
anyone who is in any way associated with a scheme or plan
relating to “entry,” we think that reading the smuggling bar to
include Petitioner’s conduct is unwarranted.9
9
Other courts have agreed that mere transportation of an alien
within the United States, even if done knowingly, does not
suffice to establish inadmissibility under § 1182(a)(6)(E)(i).
See, e.g., Rodriguez-Gutierrez v. INS, 59 F.3d 504, 509 n.3
(5th Cir. 1995) (“Rodriguez was convicted for transporting
illegal aliens rather than for aiding and abetting an entry.
Therefore, he is not excludable under section
1182(a)(6)(E).”); Matter of Antonio Reyes-Huereca, 2008
WL 486877, at *3 (a transporting conviction, “standing alone
. . . does not support a . . . charge of inadmissibility”); Matter
of Maria Guadalupe Garcia De Sanchez, 2005 Immig. Rptr.
LEXIS 11746, at *3 (BIA 2005) (a conviction for a
transporting offense “does not establish that the respondent
has knowingly encouraged, induced, assisted, abetted, or
aided any other alien to enter or try to enter the United States
in violation of law”).
18
We therefore hold that Petitioner’s conduct did not
constitute encouraging, inducing, assisting, abetting, or aiding
another alien to enter the United States. Because we hold that
Petitioner’s conduct does not satisfy the requirements of the §
1182(a)(6)(E)(i) smuggling bar, we do not address
Petitioner’s other argument regarding whether he acted with
the requisite mens rea.
IV. Conclusion
For the reasons stated above, we will grant the petition
for review. The judgment of the BIA is vacated and the BIA
is ordered to remand the matter to the Immigration Court for
further proceedings consistent with this opinion on
Petitioner’s application for adjustment of status under 8
U.S.C. § 1255(a).
19