Carbajal-Gonzalez v. I.N.S.

• Decision Date: 27 March 1996
• Docket Number: CARBAJAL-GONZALE,P,No. 94-40411,94-40411
• Citation: 78 F.3d 194
• Parties: Carlos Albertoetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 194

78 F.3d 194

Carlos Alberto CARBAJAL-GONZALEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 94-40411.

United States Court of Appeals Fifth Circuit.

March 27, 1996.

Paul M. Douglass, Linda Y. Chew, El Paso, TX, for appellant.

Janet Reno, Atty. Gen., U.S. Dept. of Justice, Washington, DC, Nelda C. Reyna, Atty., David J. Kline, David V. Bernal, Richard M. Evans, Atty., Robert L. Bombough, Director, INS, Civ. Lit., Washington, DC, for appellee.

John B.Z. Caplinger, INS, DD, Joseph A. Aguilar, New Orleans, LA, A.H. Guigni, DD, INS, El Paso, TX, for other interested parties.

Petition for Review of Order of Immigration and Naturalization Service.

Before JOLLY, DUHE and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

We reverse the INS order of deportation in this case.

An immigration judge ordered Carlos Alberto Carbajal-Gonzalez deported to Mexico for violations of the Immigration and Nationality Act (the "Act"). The Board of Immigration Appeals affirmed the deportation order. Concluding that, as a matter of law, Carbajal-Gonzalez did not "enter" the United States within the meaning of the Act, we reverse. ¹

I

Carbajal-Gonzalez was granted lawful permanent resident status in the United States on November 27, 1991. He is a twenty-five year old native and citizen of Mexico. He lives in El Paso, Texas. His wife is a United States citizen. He teaches folk dancing in On October 29, 1992, Carbajal-Gonzalez and his wife went to a party in a bar after a dance recital in Juarez. Jorge Rodriguez-Alvidrez was a student in Carbajal-Gonzalez's dance class. He was also at the party. Carbajal-Gonzalez decided that he wanted to buy more beer. Because of the late hour, he believed that he could only do so in the United States. Rodriguez-Alvidrez offered to help Carbajal-Gonzalez in purchasing the beer. At first, Carbajal-Gonzalez declined the offer, but he then acquiesced. Rodriguez-Alvidrez was not a United States citizen, and that night he carried no documentation on his person that would allow him to enter the United States legally. It is unclear whether Rodriguez-Alvidrez did, in fact, possess such documents. Carbajal-Gonzalez's wife drove the two men to the Bridge of the Americas Port of Entry, and she kept her husband's immigration document. The two men, both inebriated, got out of the car and walked across the bridge on the side opposite to the inspection facilities. Neither man passed through inspection. Carbajal-Gonzalez's wife drove across the bridge and picked up her husband and Rodriguez-Alvidrez on the U.S. side. Shortly thereafter, the border patrol arrested the two men.

Ciudad Juarez, Mexico, and has crossed the U.S.-Mexican border many times by presenting his valid immigration document.

An Order to Show Cause issued, which charged Carbajal-Gonzalez with entry without inspection under 8 U.S.C. § 1251(a)(1)(B) and smuggling aliens under 8 U.S.C. § 1251(a)(1)(E)(i). ² After finding that the charges in the Order to Show Cause were supported by clear, unequivocal and convincing evidence, the immigration judge (the "IJ") ordered that Carbajal-Gonzalez be deported. The Board of Immigration Appeals (the "Board") affirmed the order and dismissed Carbajal-Gonzalez's appeal. Carbajal-Gonzalez now petitions this court for review.

II

On appeal, Carbajal-Gonzalez argues that the evidence of an entry without inspection and of smuggling is insufficient to meet the required burden of clear, unequivocal and convincing evidence. On the other hand, the Immigration and Naturalization Service (the "INS") argues that substantial evidence supports the order of deportation. More specifically, the INS urges that Carbajal-Gonzalez's own admissions prove that he aided and abetted an alien's illegal entry into the United States; therefore, within the meaning of the Act, Carbajal-Gonzalez's return to the United States was an "entry" without inspection, and his assistance of Rodriguez-Alvidrez constituted a smuggling. The INS further argues that this court's review of the Board's decision is limited by the substantial evidence standard. Therefore, we may reverse the deportation order only if the evidence compels the conclusion that the Board's decision was wrong.

We shall first discuss the applicable standard of review, then briefly review the body of relevant United States Supreme Court and Fifth Circuit case law, and finally turn to the merits of this appeal.

III

A

Generally, in immigration cases, we review only the decision of the Board, not that of the IJ. Ogbemudia v. I.N.S., 988 F.2d 595, 598 (5th Cir.1993) (footnote omitted). The Board conducts a de novo review of the administrative record, and we consider the errors of the IJ only to the extent that they affect the Board's decision. Id. We sustain an order of deportation if it is supported by "reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. § 1105a(a)(4); see also Woodby v. I.N.S., 385 U.S. 276, 281-82, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966). The substantial evidence standard "requires only that the Board's conclusion be based upon the evidence presented and that it be substantially reasonable." Wilson v. I.N.S., 43 F.3d 211, 213 (5th Cir.1995) quoting Animashaun v. I.N.S., 990 F.2d 234, 237 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 557, 126 L.Ed.2d 458 (1993). We review factual conclusions of the Board for substantial evidence. Ozdemir v. I.N.S., 46 F.3d 6, 7 (5th Cir.1994), citing Silwany-Rodriguez v. I.N.S., 975 F.2d 1157, 1160 (5th Cir.1992). We will affirm the Board's decision unless the evidence compels a contrary conclusion. Ozdemir, 46 F.3d at 8. In other words, the alien must show that the evidence was so compelling that no reasonable factfinder could conclude against it. Chun v. I.N.S., 40 F.3d 76, 78 (5th Cir.1994) citing I.N.S. v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 817, 117 L.Ed.2d 38 (1992); Silwany-Rodriguez, 975 F.2d at 1160. This court reviews conclusions of law de novo (although with the usual deference to the Board's interpretations of ambiguous provisions of the Act in accordance with Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

As noted, we may review actions of the IJ only when they have some impact on the Board's decision. Chun v. I.N.S., 40 F.3d 76, 78 (5th Cir.1994) citing Adebisi v. I.N.S., 952 F.2d 910, 912 (5th Cir.1992). In the instant case, the IJ failed to apply properly the Supreme Court doctrine set forth in Rosenberg v. Fleuti, 374 U.S. 449, 462, 83 S.Ct. 1804, 1812, 10 L.Ed.2d 1000 (1963), as that doctrine has been developed by this circuit's precedent discussed below. This failure resulted in an evidentiary proceeding and legal decision that focused upon isolated events occurring after Carbajal-Gonzalez left the United States to the exclusion of all other relevant factors. See Rivas-Martinez v. I.N.S., 997 F.2d 1143, 1146 (5th Cir.1993). Rather than correct this error, the Board adopted the IJ's misapplication of the doctrine and failed to perform the proper weighing of critical factors and circumstances that our precedent requires. Because the substantial evidence standard of review implicitly presumes that the Board performed the proper legal analysis, that standard cannot apply to our review of this appeal. Id. Instead, we review de novo the Board's interpretation and application of our precedent. Id.

B

The government brought two charges against Carbajal-Gonzalez: illegal entry without inspection and alien smuggling. 8 U.S.C. § 1251(a)(1)(B), (E)(i). A prerequisite to both charges is that Carbajal-Gonzalez must have made an "entry" into the United States as defined in 8 U.S.C. § 1101(a)(13). Contrary to the ordinary use of the word "entry," the requirement of an "entry" under the Act is a term of art in judicial parlance, which must be understood in the context of the resident alien's subjective intent at the time of departure from the United States. Fleuti, 374 U.S. at 461-63, 83 S.Ct. at 1812; see also, e.g., Vargas-Banuelos v. I.N.S., 466 F.2d 1371, 1372-74 (5th Cir.1972). We look to the alien's intent because, for purposes of the Act, a lawful permanent resident alien does not make an "entry" (actually re-entry) into the United States if "the alien proves to the satisfaction of the Attorney General that his departure ... was not intended...." 8 U.S.C. § 1101(a)(13). Because a review of the "judicial gloss" that now surrounds this term of art will facilitate a better understanding of our holding in this case, we begin by revisiting the standard announced by the Supreme

Court in Fleuti and by examining the Fifth Circuit progeny that has followed.

C

Under what has come to be known as "the Fleuti doctrine," the United States Supreme Court held that a resident alien does not effect an "entry" for the purposes of 8 U.S.C. § 1101(a)(13) when he returns from an "innocent, casual, and brief excursion" outside the United States; instead, such an alien effects an entry only if he intended to depart in a manner "meaningfully interruptive" of the alien's permanent residence. Fleuti, 374 U.S. at 462, 83 S.Ct. at 1812, explained in Molina v. Sewell, 983 F.2d 676, 679 (5th Cir.1993). Rejecting as contrary to congressional intent a "woodenly construed" entry doctrine, the Supreme Court set forth three factors to be considered in determining whether an alien had the requisite intent to effect a meaningful interruption of permanent residence status: (1) the length of the alien's absence from the United States; (2) whether the alien had to procure travel documents for the trip; and (3) the purpose of the visit, with an emphasis on whether the purpose was contrary to immigration policy. Fleuti, 374 U.S. at 461-62, 83 S.Ct. at 1811-12. The Court indicated, however, that its list of factors was not exhaustive and remained to be developed by judicial inclusion and...