In re Matter of Martinez-Serrano, 25 I&N Dec. 151 (I & N 12/9/2009), Interim Decision No. 3666.

• Decision Date: 09 December 2009
• Docket Number: Interim Decision No. 3666.,File A092 340 037.
• Citation: 25 I&N Dec. 151
• Parties: Matter of Maria del Carmen MARTINEZ-SERRANO, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

Page 151

25 I&N Dec. 151

Matter of Maria del Carmen MARTINEZ-SERRANO, Respondent.

Interim Decision No. 3666.

File A092 340 037-Florence, Arizona.

Board of Immigration Appeals.

Decided December 9, 2009.

(1) An alien's conviction for aiding and abetting other aliens to evade and elude examination and inspection by immigration officers in violation of 18 U.S.C. § 2(a) (2006) and 8 U.S.C. § 1325(a)(2) (2006) establishes that the convicted alien is removable under section 237(a)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(E)(i) (2006).

(2) Where the facts underlying the respondent's conviction demonstrated that she knowingly assisted other aliens to enter the United States in violation of law, clear and convincing evidence established that she is removable under section 237(a)(1)(E)(i) of the Act.

FOR RESPONDENT: Anthony Pelino, Esquire, Florence, Arizona.

FOR THE DEPARTMENT OF HOMELAND SECURITY: Maria N. Bjornerud, Assistant Chief Counsel.

BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.

MULLANE, Board Member.

In a decision dated March 7, 2007, an Immigration Judge terminated the proceedings upon a finding that the respondent was not removable under section 237(a)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(E)(i) (2006). The Department of Homeland Security ("DHS") has appealed from that decision. The appeal will be sustained, the proceedings will be reinstated, and the record will be remanded to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who adjusted her status to that of a lawful permanent resident on December 1, 1990. The record reflects that the respondent was admitted to the United States on August 23, 2006, as a returning resident and that later the same day 15 illegal aliens were apprehended in her home. She was convicted on September 19, 2006, of aiding and abetting two aliens to evade and elude examination and inspection by immigration officers in violation of 18 U.S.C. § 2(a) (2006) and 8 U.S.C. § 1325(a)(2) (2006),¹ a misdemeanor offense for which she was sentenced to 90 days' imprisonment. As part of the respondent's plea agreement for this conviction, the Government dismissed a charge of harboring illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) (2006).

The plea agreement signed by the respondent includes the following as the factual basis for criminal charges brought against her:

On or about August 23, 2006, at or near San Luis, Arizona, . . . I . . . harbored fifteen individuals in my home, all of whom were illegal aliens. . . . I knew that the people I was harboring were illegally in the United States, and I was aiding and abetting their presence in the United States. . . . I was harboring them in order to assist them in eluding examination and inspection by Immigration Officials of the United States.

The DHS initiated removal proceedings against the respondent, charging that she is removable under section 237(a)(1)(E)(i) of the Act as alien who knowingly aided and abetted other aliens to enter the United States in violation of law. In support of this charge, the DHS introduced the respondent's conviction record. The respondent denied that she assisted the aliens to enter the country. The Immigration Judge found that although the evidence showed that the respondent harbored aliens after their entry, there was insufficient evidence to establish that she helped them enter the country illegally. He therefore concluded that the ground of removal was not sustained and terminated the proceedings.

II. ANALYSIS

We review the findings of fact made by the Immigration Judge to determine whether they are "clearly erroneous." 8 C.F.R. § 1003.1(d)(3)(i) (2009); see also Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008). We review de novo all questions of law, discretion, and judgment, including the question whether the parties have met the relevant burden of proof. 8 C.F.R. § 1003.1(d)(3)(ii); see also Matter of V-K-, 24 I&N Dec. 500 (BIA 2008).

The DHS contends that the Immigration Judge erred in determining that the removal charge had not been sustained and in terminating the proceedings. We agree. With certain exceptions that are not applicable here, an alien who "knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law" is removable under section 237(a)(1)(E)(i) of the Act. By its plain language, the statute does not require the DHS to establish a conviction as the basis for this removal ground. However, as support for the removal charge, the DHS submitted evidence establishing the respondent's conviction.

As stated in the plea agreement that the respondent signed, she was convicted of "Aiding and Abetting an Alien to Elude Examination and Inspection by Immigration Officers" pursuant to 18 U.S.C. § 2(a) and 8 U.S.C. § 1325(a)(2). Under 18 U.S.C. § 2(a), a person who "aids, abets, counsels, commands, induces or procures" the commission of an offense against the United States is punishable as a principal. The underlying offense in this case was a violation of 8 U.S.C. § 1325(a), which is entitled "Improper entry by an alien." That statute punishes

[a]ny alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact . . . .

As noted above, the removal ground with which the respondent is charged requires no conviction. However, in this case, there is a conviction for an offense that, by its terms, establishes the charge. Specifically, 8 U.S.C. § 1325(a) is a statute that addresses the manner of an illegal entry, not the conduct of aliens who have already effected an entry to the United States. See United States v. Rincon-Jimenez, 595 F.2d 1192, 1193-94 (9th Cir. 1979) (noting that § 1325(a)(2) has "specific reference to immigration procedures conducted at the time of entry"); see also United States v. Flores-Peraza, 58 F.3d 164, 168 (5th Cir. 1995) (distinguishing 8 U.S.C. § 1326(a) from § 1325(a) and noting that "'the plain language of § 1325(a) defines the underlying "offense" in the statute to be improper entry into the United States based on the manner of entry, not on the mere fact of an entry'" (quoting United States v. Crawford, 815 F. Supp. 920, 924 (E.D. Va. 1993))); United States v. Mussaleen, 35 F.3d 692, 697 (2d Cir. 1994) (distinguishing § 1325(a), which "proscribes illegal entry into the United States," from 8 U.S.C. § 1324(a)(1)(B), which proscribes activity "within the United States after entry has been made").

Under our precedent decisions, "an `entry' requires: (1) a crossing into the territorial limits of the United States, i.e., physical presence; (2) (a) an inspection and admission by an immigration officer, or (b) an actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint." Matter of Z-, 20 I&N Dec. 707, 708 (BIA 1993) (emphasis added) (interpreting the term "entry" as it was defined under former section 101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13) (1988), i.e., prior to the amendments made by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546). Further, the act of an entry may include other related acts that occurred either before, during, or after a border crossing, so long as those acts are in furtherance of, and may be considered to be part of, the act of securing and accomplishing the entry. See Altamirano v. Gonzales, 427 F.3d 586 (9th Cir. 2005) (discussing what constitutes aiding and abetting under section 212(a)(6)(E)(i) of the Act and various methods by which an alien can violate the smuggling provisions of the Act); see also Urzua Covarrubias v. Gonzales, 487 F.3d 742, 748 (9th Cir. 2007) (stating that section 212(a)(6)(E)(i) "does not describe acts that constitute static or instantaneous occurrences," but rather describes "acts that occur over a period of time and distance, and . . . not . . . at one particular moment or location"); Larios-Mendez v. INS, 597 F.2d 144 (9th Cir. 1979) (holding that the documents relating to the petitioner's conviction for aiding and abetting the illegal entry of aliens into the United States were sufficient by themselves to establish deportability under the prior version of the alien smuggling ground, which also required a showing that the smuggling was for gain).

The first issue before us, therefore, is whether a conviction for aiding and abetting a violation of 8 U.S.C. § 1325(a)(2) establishes removability under section 237(a)(1)(E)(i) of the Act. The offense of eluding examination or inspection by immigration officers in violation of § 1325(a)(2) "is consummated at...