Dimova v. Holder

• Decision Date: 03 April 2015
• Docket Number: 13–2013.,Nos. 13–1550,s. 13–1550
• Parties: Milena Bogdanova DIMOVA, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

783 F.3d 30

Milena Bogdanova DIMOVA, Petitioner

v.Eric H. HOLDER Jr., Attorney General, Respondent.

Nos. 13–1550

13–2013.

United States Court of Appeals, First Circuit.

April 3, 2015.

Craig R. Shagin, with whom Rakhee Vemulapalli was on brief, for petitioner.

Yedidya Cohen, Trial Attorney, Office of Immigration Litigation, with whom Stuart F. Delery, Assistant Attorney General, Civil Division, and David V. Bernal, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Before TORRUELLA, THOMPSON, and KAYATTA, Circuit Judges.

Opinion

THOMPSON, Circuit Judge.

Sometimes one ill-considered decision is all it takes. Unfortunately, this is so for our petitioner, Milena Dimova (“Dimova”). Dimova seeks review of a decision from the Board of Immigration Appeals (“BIA”) finding her removable under the alien smuggling provisions of the Immigration and Nationality Act, and ordering her removed to her native Bulgaria. Although the record indicates Dimova was put in a very difficult position by someone she trusted, it also leaves no doubt that she nevertheless knowingly and voluntarily assisted her friends as they attempted to cross illegally from Canada into the United States. We must, therefore, deny Dimova's petition for review.

I. BACKGROUND

The facts are not disputed. Dimova is a native and citizen of Bulgaria. She emigrated to the United States in the summer of 2002 after she “won a green card lottery,”¹ and settled in the Raleigh, North Carolina area. Her husband and young son are United States citizens. Since coming to the United States, Dimova has worked for a utility company and as an emergency medical technician.

One of Dimova's co-workers, Milan Mihaylov, also happened to be a neighbor of hers in North Carolina. Although it is not clear from the record whether Dimova gave any thought to Mihaylov's legal status when they first met, she testified during removal proceedings that, if she “had to make an assumption back then,” she would have assumed he was a legal resident.

This is because, she explained, her own immigration status had been checked by their employer, so she assumed Mihaylov's status would have been checked, too, especially since he worked as a nurse. Moreover, Mihaylov had been able to buy a house, which Dimova took as another sign that he was in the country legally. But appearances can be deceiving: unbeknownst to Dimova, Mihaylov did not have legal status in the United States.

Mihaylov relocated (voluntarily) from Raleigh to Canada in March of 2007, but he continued to stay in touch with Dimova after the move. A few months later, Mihaylov asked Dimova if she could meet him in Canada and drive his car (with Mihaylov, his wife, and their young daughter inside) to North Carolina. He told Dimova that he needed her help because he was a bad driver, it was a 16–hour drive to North Carolina, and he couldn't drive for too long due to a back problem. Dimova agreed. Mihaylov prepared two notarized documents, one of which authorized Dimova to drive his car across the Canada–U.S. border, while the other allowed Dimova to take his three-year-old child with her as well.

Mihaylov bought Dimova a one-way plane ticket to Montreal, where they planned to begin their trip, and Dimova arrived there on July 25, 2007. After meeting up with the Mihaylovs, they all piled into the car, with Dimova taking the wheel and driving south towards Vermont. As evening came on and they approached the border, Mihaylov instructed Dimova to turn off the highway, then directed her onto a dirt road in a remote area. Mihaylov told Dimova that he wanted her to drop him and his wife off there, by the side of the road. He implored Dimova to take the car and their daughter into the United States.

Dimova was “very surprised” by this turn of events, as she had assumed they would all be making the crossing together. She told Mihaylov he was “crazy” and demanded to know why he was doing this and why he was involving her. Mihaylov said that it would be “better for us” this way. When Dimova stopped the car, Mihaylov and his wife got out, taking “one or two backpacks with them.” Mihaylov told her that the papers she'd need to get their car and their daughter across the border were in the glove compartment.

He also gave Dimova a map of the vicinity, which allowed her to find her way back to the highway on the Canadian side of the border. In addition, the map showed where the Mihaylovs planned to cross the border and where they would be waiting to get picked up once they made it into the United States. Mihaylov pointed these locations out to Dimova.²

An argument ensued, with Dimova telling him “I don't want to have nothing to do with this, I am not coming back for, for you or your wife, I don't care.” She also told him, “if I take your car from here right now ... I'm going straight back to Raleigh, North Carolina.” While they were arguing, Mihaylov's daughter “started being fussy,” so Mihaylov decided that his family should stay together after all.

Finally, Dimova told Mihaylov he was “too crazy,” and she took their car and left. It was approximately 8:00 p.m. and still light out, and Dimova drove directly to the border crossing station. Although she made it to the border okay, Dimova noticed the border patrol agents got suspicious when they looked in the glove compartment, found the documents allowing Dimova to take Mihaylov's car and child across the border, and saw that Dimova was by herself. Nevertheless, they allowed Dimova through, and she continued south towards North Carolina for several hours, planning to drive all the way there without turning back.

As Dimova put distance between herself and the border, she “remember[ed] the child,” who had been out in the woods all night, and “just had to make a judgment call” on what to do next. After some introspection, she opted to turn around out of concern for the Mihaylovs' child, who she knew was stranded in the woods. She did this even though she now realized the Mihaylovs had likely crossed into the United States illegally. By the time she found the waiting Mihaylovs (at the place Mihaylov indicated on the map), it was “early dawn ... starting to get light out.”³ Dimova and the Mihaylovs were subsequently apprehended by border patrol agents in Vermont, and Dimova was ultimately charged, in immigration court, as removable for having engaged in alien smuggling.⁴

Dimova appeared for trial before an immigration judge (“IJ”). After finding Dimova's testimony credible, the IJ found that, prior to this misadventure, Dimova “reasonably believed that [Mihaylov] and his family had legal status in the United States, due to his profession, visibility in the workplace, and his ownership of a home in North Carolina.” Further, he explicitly found Mihaylov “lied to and took advantage of” Dimova to secure her help.

The IJ found as a fact that Dimova traveled to Canada “to meet with [Mihaylov] and his family to assist them in driving to North Carolina in [Mihaylov's] vehicle.” He also found “it was not [Dimova's] intention to help [the Mihaylovs] illegally enter the United States until after several hours of deliberation and [she] only returned to ensure the safety of the young child.” Thus, the IJ found that Dimova did not have any knowledge that the Mihaylovs lacked legal status, nor did she have any intent to assist an illegal crossing at any time while she was in Canada.

Nevertheless, he determined that Dimova was removable because, by coming back for and picking up the Mihaylovs, she “knowingly ... encouraged, induced, assisted, abetted, or aided any ... alien to enter or try to enter the United States in violation of law.” This was so, he found, because Dimova “knew at the time that she returned to pick the family up that they had entered [the] country illegally.”

Dimova appealed to the BIA, which issued a written opinion from a single board member setting forth its own analysis and affirming the IJ's removal order. The BIA considered and rejected Dimova's argument that she could not have assisted the Mihaylovs with their entry into the United States because they had crossed the border hours before she went back for them. The BIA concluded that Dimova, although she did not initially wish to help the Mihaylovs with their crossing, nevertheless “had the requisite intent when she knowingly travelled [sic] to the designated pick-up point, to aid the family in their entry into the United States.” The BIA further noted that it was immaterial that the Mihaylovs had already entered the United States and that they did not cross the border with any assurance of Dimova's help because, ultimately, her coming back for them was a knowing, affirmative act of assistance. It concluded that had the group not been apprehended, Dimova's “affirmative act would have led to the [Mihaylovs'] successful entry into the United States.” Dimova filed a Petition for Review with this Court.

Concurrently, Dimova filed a motion for reconsideration with the BIA, in which she sought to have her appeal considered by a panel rather than a single member. Dimova did not attempt to introduce any new evidence, instead arguing that the BIA's original decision was incorrect as a matter of law because there was no prearranged plan with the Mihaylovs, and their entry was complete by the time she picked them up. In denying her motion, the same BIA member who penned the denial of her appeal stated that, “[t]he fact that the illegal entrants may have already crossed the border by the time she [i.e., Dimova] returned is not important to our, or the Immigration Judge's decision.” What the BIA found dispositive was that Dimova “took affirmative steps” to aid what she knew by that time was the Mihaylovs' illegal entry: she “turned her car around, arrived at the prearranged meeting spot and picked up the [Mihaylovs] to drive them back to North Carolina.” In so doing, the BIA found, Dimova “intended to follow through with their entry as originally...