Nyirenda v. Immigration and Naturalization Service

• Decision Date: 06 February 2002
• Docket Number: No. 01-1851.,01-1851.
• Citation: 279 F.3d 620
• Parties: Vuyiswa Yetta NYIRENDA; Mwinji Elaine Nyirenda; Muchemwa John Nyirenda, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

279 F.3d 620

Vuyiswa Yetta NYIRENDA; Mwinji Elaine Nyirenda; Muchemwa John Nyirenda, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 01-1851.

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2001.

Filed: February 6, 2002.

Rachel N. Sampong, argued, Minneapolis, MN, for appellant.

Susan K. Houser, argued, Washington, DC, for appellee.

Before HANSEN, Chief Judge,¹ HEANEY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

The Immigration and Naturalization Service (INS) commenced deportation proceedings against Vuyiswa Nyirenda (Vuyiswa) and her two children for illegal entry under § 241(a)(1)(B) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1251(a)(1)(B) (1995). Vuyiswa was also charged with alien smuggling under § 241(a)(1)(E)(i) of the INA, 8 U.S.C. § 1251(a)(1)(E)(i) (1995).² After the immigration judge concluded that Vuyiswa had conceded the smuggling charge, he held a hearing on the illegal entry charges and later ordered petitioners deported but granted voluntary departure to the children. The Board of Immigration Appeals (BIA) affirmed, but granted voluntary departure to Vuyiswa as well. The Nyirendas petitioned for review, and we affirm.

I.

Vuyiswa is a forty four year old native of South Africa who grew up in Zambia. She is divorced, and her children Mwinji and Muchemwa are natives and citizens of Zambia. Vuyiswa entered the United States illegally in 1985, but she obtained temporary resident status in 1988 under a program for farm workers and became a permanent resident in 1990. Her children first entered the United States on visitor visas in 1988 and stayed with her until 1992, but they never obtained resident status. When Vuyiswa lost her job in 1992, she sent her children to live with their father in Zambia. She moved to London for five months and then returned to this country and settled in Minneapolis. Vuyiswa moved her children from Zambia to London in 1994 and paid for their care while they attended school. Problems developed with the care arrangements, however, and Vuyiswa applied for visas for the children to come to the United States, but the applications were denied. She then developed a plan to smuggle them into the country.

Vuyiswa obtained Canadian visas for her children and purchased three roundtrip airline tickets from London to Winnipeg, with an aircraft change in Minneapolis. Vuyiswa had planned not to complete the trip to Winnipeg, but to stay in Minneapolis. Officials at the Minneapolis airport denied her children entry, however. The three then continued on to Winnipeg, from where Vuyiswa mailed their passports and luggage to the United States, rented a car, and set out with her children to drive to Minneapolis.

Vuyiswa drove south from Winnipeg on the morning of February 23, 1995. At 11 a.m., after driving for approximately one hour, she reached the United States border at Pembina, North Dakota. Despite the presence of signs announcing the border and the customs booths across the highway, she drove through the United States checkpoint without stopping. Inspection officials saw her, activated a siren, and sent an inspector to pursue her. The inspector sighted Vuyiswa approximately two miles from the border before she reached the first exit from the highway, and he pulled her over shortly thereafter at the request of border patrol officers.

Vuyiswa initially claimed that her children were United States citizens and that she was returning to the country after taking a short trip to Canada. The officials obtained a copy of her flight itinerary, however, and administered Miranda warnings. Vuyiswa then admitted that her children were not United States citizens, but she claimed that she had not intended to cross the border without inspection but to show her green card and hope that officials would not request identification for her children. Vuyiswa asserts that she was sick and exhausted at the time of the border crossing, that she was listening to loud music in her car, and that she did not hear the siren. She has since been diagnosed as having the HIV virus, and she claims that deportation would deprive her of medical treatment available only in the United States.

On April 12, 1996, an immigration judge ruled that Vuyiswa had conceded the charge of alien smuggling, under § 241(a)(1)(E)(i) of the INA, 8 U.S.C. § 1251(a)(1)(E)(i) (1995), and that she and her children had also illegally entered the country, in violation of § 241(a)(1)(B) of the INA, 8 U.S.C. § 1251(a)(1)(B) (1995), by intentionally evading the border checkpoint and exercising freedom from official restraint before being apprehended. The judge also concluded that petitioners were not eligible for any waiver of deportability or other relief and ordered them deported, but he granted the children voluntary departure.³ On March 15, 2001, the BIA issued a final order upholding the findings and conclusions of law of the immigration judge. The BIA also granted Vuyiswa voluntary departure because she had been a person of good moral character during the five years that had elapsed since the decision of the immigration judge. See 8 U.S.C. § 1254(e)(1) (1995).

II.

Petitioners appeal from the BIA's illegal entry determination under § 241(a)(1)(B) of the INA, arguing that Vuyiswa crossed the border accidentally and without intending to evade inspection and that she was never free from official restraint. The INS responds that she could not possibly have driven through the border checkpoint accidentally and that she was free from official restraint when she traveled out of sight of any law officer for approximately two miles within the United States. We review the BIA's legal determinations de novo but recognize that its interpretation of the INA is entitled to deference. Vue v. I.N.S., 92 F.3d 696, 699 (8th Cir.1996). Factual findings will be upheld if they are "`supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Tang v. I.N.S., 223 F.3d 713, 718 (8th Cir.2000), quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

At the time petitioners crossed the border, § 241(a)(1)(B) of the INA prohibited an alien from entering the United States without inspection. 8 U.S.C. § 1251(a)(1)(B) (1995). Entry was statutorily defined as "any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise," 8 U.S.C. § 1101(a)(13) (1995). An entry has several components: (1) a crossing into the territorial limits of the United States; (2)(a) inspection and admission by an immigration officer, or (b) actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint. Farquharson v. U.S. Attorney Gen., 246 F.3d 1317, 1321 (11th Cir.2001); Matter of Z-, 20 I. & N. Dec. 707, 708 (BIA 1993). The immigration judge and the BIA concluded that petitioners had entered the United States because they had intended to evade inspection at the border and had been free of official restraint for approximately two miles until stopped.

Vuyiswa argues that she had not intended to evade inspection but did so accidentally because the checkpoint was not identifiable, she thought the border was still four hours away, she was ill, and she did not hear the siren because she was playing loud music. She notes that the inspector who pulled her over testified that she had been driving at the speed limit and that "she didn't appear...aware" she had crossed the border. She also notes that she had not alerted her children that they were crossing the border, even though her plan had been for them to feign sleep during the crossing. The INS argues that the immigration judge and the BIA were correct in concluding that Vuyiswa could not have crossed the border accidentally in light of all the evidence, including photographs of the Pembina checkpoint and the...