Soto-Hernandez v. I.N.S., SOTO-HERNANDE
| Decision Date | 12 March 1984 |
| Docket Number | SOTO-HERNANDE,No. 83-4476,P,83-4476 |
| Citation | 726 F.2d 1070 |
| Parties | Jorgeetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Alpha Hernandez, Richard O. Gonzales, Del Rio, Tex., for petitioner.
Michael P. Lindemann, Charles E. Hamilton, III, Civil Division, Washington, D.C., for respondent.
Petition for Review of an Order of the Immigration and Naturalization Service.
Before GEE, POLITZ and JOHNSON, Circuit Judges.
Petitioner Jorge Soto-Hernandez is a resident alien charged with knowingly and for gain assisting an alien, Filemon Rosas-Gallegos, to enter the United States illegally, in violation of section 241(a)(13) of the Immigration and Naturalization Act, 8 U.S.C. Sec. 1251(a)(13). After a hearing, an immigration judge found Soto deportable and the Board of Immigration Appeals entered a per curiam order dismissing his appeal. We grant review and vacate the deportation order.
Soto, a citizen and national of Mexico, was granted permanent residency in April 1979. His wife and two small children are citizens of the United States. Soto was living and working in Florida when, in late September 1979, he returned to San Juan del Rio, Durango, Mexico, because of the illness of his father. Soto arranged for his father's medical care and, after a stay of nine or ten days, prepared to return to the United States with his wife and children. Soto was approached by Rosas, his brother-in-law, and several other men, who requested transportation to the Dallas-Fort Worth area. Soto agreed and received pesos equivalent to $36 in United States currency.
After crossing the border, Soto was stopped, arrested and ultimately charged with aiding the unlawful entry of an alien in violation of 8 U.S.C. Sec. 1325. He pleaded guilty. Following this conviction, deportation hearings were instituted. Soto admitted all relevant facts, except the allegation that he was to receive $300 from his brother-in-law. Over objection of counsel the immigration judge allowed introduction of an affidavit of Rosas which referred to a promised payment of $300.
The immigration judge held that Soto had received "gain" for the transportation of Rosas, in violation of 8 U.S.C. Sec. 1251(a)(13) and was thus deportable. The BIA implicitly recognized the immigration judge's error in allowing the ex parte affidavit, discounted its contents, but affirmed the finding of gain based on Soto's admission of receipt of $36 in payment of the gas and oil expenses to be incurred on the trip from San Juan del Rio, Durango to Dallas, Texas, a distance of 1,134 miles.
The issue presented by the petition for review is whether Soto's transportation of Rosas was done for gain within the intendment of section 241(a)(13) of the Immigration and Naturalization Act. The statute prescribes that:
Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who ...
prior to, or at the time of any entry, or at any time within five years after any entry, shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.
"For gain" is not defined in the statute, nor do we find any significant assistance in the statutory history, but we are aided by the developing jurisprudence.
We consider particularly helpful an early administrative decision defining gain. In Matter of R___ D___, 2 I & N Dec. 758 (BIA 1946; Attorney General 1947), an alien imported Mexican laborers for the purpose of harvesting an onion crop. The alien planned and expected a profit from each bag of onions harvested by the illegal workers. The Commissioner, reversing the Board, found that the phrase "for gain" encompassed the profits the defendant anticipated from the illegal labor. The Attorney General subsequently adopted the Commissioner's view:
I adopt the view expressed by the Commissioner that the word "gain" should be construed in a practical sense to cover cases in which illegal smuggling was encouraged or assisted for venal reasons even though the advantage which accrues to the alien be an anticipated benefit which he will receive as a result of the acts prohibited by the statute.
A decision by our colleagues in the Ninth Circuit further blazes the trail. In Gallegos v. Hoy, 262 F.2d 665 (9th Cir.1958), cert. denied, 360 U.S. 935, 79 S.Ct. 1456, 3 L.Ed.2d 1547 (1959), a resident alien couple arranged for the illegal entry of an alien they then employed as a domestic servant. The couple paid the alien wages substantially below the customary rate in the community. In finding gain the court stated:
No doubt Congress, in putting into the statute the prerequisite of gain, did not mean to apply the peppercorn standard of contract consideration, but we are satisfied the requirement is met if the gain is real, moneywise. Here it was.
Id. at 666. The court recognized that assisting illegal entry does not result automatically in a violation of Section 241(a)(13); more is required.
When we have it clear enough that the bringing in was not done for either love, charity or kindness, but for tangible substantial financial advantage, we hold the condition has been met.
More recently, in a case similar to the one before us, the Third Circuit considered the meaning of gain. In Ribeiro v. INS, 531 F.2d 179 (3d Cir.1976), the defendant, a resident alien, arranged for...
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