Parra-Rojas v. Attorney Gen. United States

• Decision Date: 26 March 2014
• Docket Number: No. 13–1828.,13–1828.
• Citation: 747 F.3d 164
• Parties: Carlos H. PARRA–ROJAS, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

747 F.3d 164

Carlos H. PARRA–ROJAS, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent.

No. 13–1828.

United States Court of Appeals, Third Circuit.

Argued on Jan. 16, 2014.

Opinion filed: March 26, 2014.

Thomas E. Moseley, Esquire, (argued), Law Offices of Thomas E. Moseley, Esquire, Newark, NJ, for Petitioner.

Eric H. Holder, Jr., Attorney General of the United States, Stuart F. Delery, Esquire, Acting Assistant Attorney General, Civil Division, Francis W. Fraser, Esquire, Senior Litigation Counsel, Dawn S. Conrad, Esquire, (argued), Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC, for Respondent.

BEFORE: RENDELL, ROTH and BARRY, Circuit Judges.

OPINION

RENDELL, Circuit Judge:

Petitioner Carlos Parra–Rojas was convicted of Bringing In or Harboring Aliens for Financial Gain, in violation of section 274(a)(2)(B)(ii) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2. Petitioner subsequently applied for adjustment of status under 8 U.S.C. § 1255(a). The Immigration Judge denied Petitioner's application under 8 U.S.C. § 1182(a)(6)(E)(i) (the “smuggling bar”), which renders an alien inadmissible if he has “knowingly ... encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law”. The Board of Immigration Appeals affirmed the IJ's decision. For the reasons set forth below, we will reverse.

I. Background

Petitioner is a native and citizen of Colombia. He was admitted to the United States at age 20 as a lawful permanent resident in 1984. He is married to a U.S. citizen and has a teenage son, also a U.S. citizen.

From 1984 through 2009, Petitioner lived in the United States without incident. On November 16, 2009, he was stopped at the High Peaks checkpoint near North Hudson, New York, with two passengers in his car. Upon questioning, Petitioner admitted that he was aware the two men were illegal aliens, and that he had picked them up in the Saint Regis Mohawk Reservation, on the U.S. side of the Canadian border. He stated that he was to be paid $1,000 to drive the men from the border region to locations in Queens, New York. He further admitted that he had performed such work on two prior occasions, and was generally paid approximately $500 per alien, plus expenses.

Petitioner was charged with Bringing In and Harboring Aliens in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2 (the “brings to” offense), which provides, in relevant part:

(2) Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien, regardless of any official action which may be taken with respect to such alien shall, for each alien in respect to whom a violation of this paragraph occurs ... (B) in the case of ... (ii) an offense done for the purpose of commercial advantage or private financial gain ... be fined under Title 18 and shall be imprisoned ... not less than 3 nor more than 10 years ...

Petitioner was also charged with Transporting Illegal Aliens in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(B)(i) (the “transporting offense”), which provides, in relevant part:

(1)(A) Any person who ... (ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law; transports, or moves or attempts to transport or move such alien within the United States by means of transportationor otherwise, in furtherance of such violation of law ... shall ... (a)(1)(B)(i) in the case ... the offense was done for the purpose of commercial advantage or private financial gain, be fined ..., imprisoned not more than 10 years, or both ...

Petitioner pled guilty to the first charge. However, the second was dismissed on the motion of the Government. He was sentenced to 18 months' imprisonment.

On August 22, 2011, the Department of Homeland Security (DHS) filed a Notice to Appear with the Immigration Court, charging Petitioner with removability under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), which states that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” Specifically, Petitioner was charged with committing an aggravated felony as defined by INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N), which specifically includes conduct under § 1324(a)(2). On September 13, 2011, Petitioner appeared before the Immigration Judge (IJ) and conceded the fact of his conviction and removability. However, Petitioner informed the IJ that he intended to apply for adjustment of status under 8 U.S.C. § 1255(a), which provides that such adjustment may be granted in the discretion of the Attorney General to aliens who are eligible to receive an immigrant visa and are “admissible to the United States for permanent residence”.¹

The Government conceded that an aggravated felony conviction does not, by itself, render an alien ineligible for adjustment of status based on inadmissibility. However, the Government urged that Petitioner's conviction under § 1324(a)(2)(B)(ii) rendered him inadmissible under 8 U.S.C. § 1182(a)(6)(E)(i), which provides that, “an alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter the United States in violation of law is inadmissible.”

Following briefing by the parties, on February 23, 2012, the IJ issued an interlocutory order denying Petitioner's application for adjustment of status. The IJ first recognized that “a conviction is not required for a finding of inadmissibility pursuant to [§ 1182(a)(6)(E)(i) ]. However, since [Petitioner] was convicted [ ], the court will address these convictions [sic] and the conduct required for the offenses.” (A.R.267.) The IJ first discussed Petitioner's “conviction” under 8 U.S.C. § 1324(a)(1)(A)(ii) for transporting an illegal alien within the United States. This was clear error, because, as noted supra, this charge was previously dismissed on motion of the Government; accordingly, Petitioner was never convicted of that offense.

Regarding Petitioner's actual conviction under § 1324(a)(2)(B)(ii), the IJ noted that neither the Third Circuit nor the Board of Immigration Appeals (BIA) had issued binding precedent regarding whether a conviction for a “brings to” offense renders an alien inadmissible under the § 1182 smuggling bar, and that the BIA had issued two unpublished, non-precedential decisions on the issue that appeared to contradict one another.² The IJ referenced Petitioner's Pre–Sentence Investigation Report (PSR), which stated that Petitioner knew that he was involved in an alien smuggling organization and that he had smuggled aliens on two occasions prior to his arrest. “However,” the IJ noted, “the PSR makes plain that [his] conviction is based on transporting aliens who were already in the United States, rather than sheparding [sic] them across the border.” (A.R.269) (emphasis in original).

The IJ reasoned that Petitioner's conduct, though limited to transporting aliens within the United States, was “integral to the overall scheme of alien smuggling.” (A.R.269–70.) Accordingly, the IJ held that Petitioner was inadmissible “due to [his] conviction.” (A.R. 270, citing Soriano v. Gonzales, 484 F.3d 318 (5th Cir.2007).) Because the IJ appeared to believe Petitioner had been convicted of both the transporting offense and the “brings to” offense, it is unclear whether his reference to “such conviction” referred to the (mistaken) transporting conviction, to the “brings to” conviction, or to both.³ The IJ issued a final decision ordering Petitioner removed to Colombia on November 27, 2012. (A.R.40.)

On appeal, the BIA affirmed the IJ's decision to pretermit Petitioner's application for adjustment of status, holding that Petitioner had not met his burden to show that he was not inadmissible under § 1182(a)(6)(E)(i). The BIA rejected Petitioner's argument that the language of § 1182(a)(6)(E)(i), which prohibits assisting, abetting, or aiding aliens “to enter or attempt to enter” the United States, is more narrow than the criminal “brings to” statute under which he was convicted. The BIA noted that it is not necessary that an individual be physically present at the border crossing to be held inadmissible under § 1182(a)(6)(E)(i). Rather, the BIA opined, it is enough that Petitioner participated in a scheme to aid illegal entry. Accordingly, the BIA concluded that “bringing or attempting to bring an alien to the United States corresponds with assisting, abetting or aiding an alien entering or trying to enter the United States.” (A.R.3.)

Petitioner also argued that his conviction for the “brings to” offense did not prove a violation of § 1182(a)(6)(E)(i) because the criminal statute requires that the individual charged have acted either “knowing[ly] or in reckless disregard of the fact that an alien has not received prior authorization” to enter the United States, while § 1182(a)(6)(E)(i) requires that the alien have acted knowingly.⁴ The BIA noted that “[t]he record of conviction is inconclusive, as the Indictment charged the [Petitioner] in the disjunctive of having committed the act either knowingly or with a reckless disregard.” ⁵ (A.R.4.) To determine whether Petitioner's conduct had been knowing or reckless, the BIA examined the PSR, which stated that Petitioner had admitted to knowing that the aliens he transported lacked authorization to come to the United States. Accordingly, the BIA held that Petitioner had not established that he did not act with the requisite mens rea, and affirmed the IJ's finding of inadmissibility.⁶

On appeal, Petitioner raises two arguments. First, Petitioner argues that his...