Covarrubias v. Gonzales

• Citation: 487 F.3d 742
• Decision Date: 29 May 2007
• Docket Number: No. 03-74661.,03-74661.
• Parties: Neftali URZUA COVARRUBIAS, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

487 F.3d 742

Neftali URZUA COVARRUBIAS, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 03-74661.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2006.

Filed May 29, 2007.

Xavier Rosas, Law Office of Enrique Arevalo, Pasadena, CA, for the petitioner.

John C. Cunningham, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A70-912-560.

Before: HARRY PREGERSON, BARRY G. SILVERMAN, and RICHARD C. TALLMAN, Circuit Judges.

Opinion by Judge TALLMAN; Dissent by Judge PREGERSON

TALLMAN, Circuit Judge.

Neftali Urzua Covarrubias ("Urzua") petitions for review of an order of the Board of Immigration Appeals ("BIA") dismissing Urzua's appeal from the denial of his application for suspension of deportation under 8 U.S.C. § 1254(a) (repealed 1996).¹ The BIA agreed with the Immigration Judge ("IJ") and found Urzua statutorily barred from showing good moral character, see 8 U.S.C. § 1101(f)(3), because Urzua "knowingly . . . encouraged, induced, assisted, abetted[] or aided" his brother in unlawfully entering the United States under 8 U.S.C. § 1182(a)(6)(E)(i). We cannot say that the record compels a contrary result as substantial evidence supports the BIA's factual finding. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We therefore deny the petition for review.

I

Urzua, a native and citizen of Mexico, entered the United States without inspection on August 30, 1989. He filed an application for asylum on May 3, 1994. During his interview with an INS asylum officer on January 10, 1997, Urzua admitted to making several incorrect statements in his asylum application. On January 24, 1997, the INS filed an order to show cause charging Urzua as being deportable under 8 U.S.C. § 1251(a)(1)(B) (1996).

On March 26, 1997, Urzua conceded deportability through counsel. He then withdrew his application for asylum and indicated that he would seek suspension of deportation under § 1254(a), or, alternatively, voluntary departure under § 1254(e). He designated Mexico as the country of deportation.

During the merits hearing held on October 26, 2000, INS counsel questioned Urzua about his brother, Louis. In response, Urzua made several damaging admissions:

Q: How about your, how about your brother, Louis, where does he live?

A: Louis lives in Mexico with my parents.

Q: Does Louis work?

A: Over there, yes, he works in construction.

Q: Do you support Louis?

A: He was here last year and because of his immigration status, he was only able to work maybe one or two days per week. He would either do yards or anyone that would ask him to come and help them out, and he was with me for about eight or nine months, during which time I supported him.

Q: And h[e] was in an illegal status when he was staying with you?

A: Yes.

Q: When did he enter the United States?

A: About in March.

Q: Of which year?

A: 1999.

Q: And when he entered, how did he enter?

A: He came through [Nogales] as an illegal like many of us do when we cross the border.

Q: Well, did you know he was coming to stay with you?

A: Well, yes, he did, he told us he was coming and we helped him out, paying his crossing.

Q: Could you explain exactly what arrangements you made to pay his crossing?

IJ to URZUA:

Q: Where did [Louis] come from?

A: He came from (indiscernible) Jalisco, Mexico.

Q: And where did he enter the United States?

A: Nogales, Mexico, crossing into Nogales, Arizona.

Q: And how did he get to Nogales, did he drive, did he take a train, what did he do?

A: A person that lives here had a station wagon or pickup truck and he went down there, and when he came back, he gave him a ride to Nogales.

Q: And how did he get from Nogales to Los Angeles?

A: We paid a person to cross the border, to cross him across the border and drive him to Los Angeles.

. . .

INS counsel to Urzua:

Q: How much money did you pay the person to cross him across the border into Nogales?

A: $1200.

. . .

Q: How many times have you helped your brother Louis enter the United States illegally?

A: That was the only time.

Soon after listening to Urzua's testimony, the IJ concluded the hearing by warning Urzua's counsel that "[she thought Urzua], unfortunately, ha[d] a statutory bar[] to good moral character." The IJ elaborated further on the effect of Urzua's sworn admissions, stating, "I do believe that[Urzua] is statutorily ineligible to establish good moral character because of having helped his brother enter the United States illegally. I think part of the problem is that he, [Urzua], is such a[n] honest person, that he just volunteered a little too much information." The IJ then reset the hearing to allow Urzua and his counsel to reconsider the issue. The IJ asked counsel to be prepared to discuss the statutory bar at the next hearing.

On April 26, 2002, the IJ held a second hearing on the merits. During this hearing, Urzua now testified that he had never asked his brother to come to the United States and that he did not know of his brother's plans until after his mother contacted him by telephone. Urzua stated that the day after he spoke with his mother, Louis called him from Nogales to ask for money. Urzua now claimed he did not know whether Louis called from the Mexican or United States side of the border. Louis asked Urzua for $1200, and although his brother did not specify why, Urzua stated that he believed Louis needed the money to pay the smuggler who helped him cross the border.

Urzua modified his prior sworn testimony to claim that he did not know the smuggler and that he made no arrangements to have the smuggler help Louis cross the border. Urzua testified that after Louis called him from Nogales, Urzua had arranged to get the money from other family members in the United States. Louis then called from a Wal-Mart parking lot on the United States side of the border to tell Urzua he had arrived. Urzua testified that, at this point, the smuggler took the phone from Louis and told Urzua to bring the money to the Wal-Mart parking lot alone. Urzua stated that he complied with the smuggler's request. He testified that, once he got out of his car in the parking lot, the smuggler approached him and asked if he was Louis's brother. Urzua responded, "Yes," but told the smuggler that he would not give him the money until he saw his brother. Urzua stated that, once he saw Louis, he handed Louis the money, and Louis then turned and gave the money to the smuggler. Although Urzua claimed to have never met the smuggler before, he testified that he believed the unidentified individual was "[t]he person that had been helping [Louis] cross."

Upon further questioning, Urzua admitted that he knew Louis had decided to come to the United States three to five months prior to the actual smuggling incident. However, Urzua testified that he told Louis to wait to come to the United States. Urzua explained his brother's decision to ignore his earlier advice and come to the United States prevented Urzua from refusing to give Louis the money when his brother called from Nogales. "[Louis] had already made the decision to [come to the United States,] and one way or the other, he was going to do it." Moreover, Urzua testified that he feared that his brother would be in danger if he did not provide the money to the smuggler. Although he had no basis to question the smuggler's intent, Urzua testified that "[he] could have killed someone, killed the boy. I was afraid."

In a written decision and order, the IJ denied Urzua's application for suspension of deportation and his application for voluntary departure. Because both parties agreed that Urzua had established the requisite period of continuous physical presence, and that his deportation would result in extreme hardship to himself and his United States citizen child, the sole remaining issue was whether Urzua could establish good moral character. The IJ concluded that, because Urzua had knowingly encouraged, induced, assisted, abetted or aided in his brother's unlawful entry into the United States, Urzua was precluded under § 1101(f)(3) from establishing the requisite good moral character.

The IJ found that substantial facts in the record demonstrated that Urzua knowingly engaged in the alien smuggling scheme. "[Urzua] testified that he spoke to his brother telephonically several months before the smuggling incident," and, "[a]t that time, his brother had indicated his desire to come to the United States." Although Urzua "strongly opposed his brother's wishes and advised him not to travel illegally to the United States," Urzua collected the $1200 fee, believing that the money would go to the person that was helping Louis cross the border. The IJ concluded that, "[w]hen examined cumulatively[,] these facts demonstrate that a reasonable person in [Urzua's] circumstances would conclude that the brother was attempting an illegal entry into the United States and [Urzua] was aware that the money was to be used for the smuggling fee." Moreover, although Urzua testified that "he felt obligated to provide the smuggling fee" out of fear for his brother's safety, the IJ concluded that she was "nonetheless . . . compelled to find that[Urzua] played a role in assisting with the illegal entry of another" because "[Urzua] collected the smuggling fee from his siblings and agreed to meet his brother to provide him with the fee."

In a per curiam order filed November 20, 2003, the BIA affirmed the IJ and dismissed Urzua's appeal. Noting that Urzua had the burden to show good moral character, the BIA relied, in part, on that fact that when Urzua agreed to pay the $1200 fee he was not concerned with whether Louis had already crossed the border. "[Urzua] was apparently willing to pay the smuggler in either event." Furthermore...