Ramos v. Holder

• Decision Date: 27 October 2011
• Docket Number: No. 08–1271.,08–1271.
• Citation: 660 F.3d 200
• Parties: Ricardo Paz RAMOS; Berta A. Paz; Amagailis Paz; Teresa De Jesus Paz Mansilla; Melvin Ricardo Paz; Berta Alicia Paz, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

660 F.3d 200

Ricardo Paz RAMOS; Berta A. Paz; Amagailis Paz; Teresa De Jesus Paz Mansilla; Melvin Ricardo Paz; Berta Alicia Paz, Petitioners,

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

No. 08–1271.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 22, 2011.Decided: Oct. 27, 2011.

ARGUED: Aaron Robert Caruso, Abod & Caruso, LLC, Rockville, Maryland, for Petitioners. Kathryn L. DeAngelis, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Tony West, Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before WILKINSON, WYNN, and FLOYD, Circuit Judges.

Petition denied by published opinion. Judge WILKINSON wrote the opinion, in which Judge WYNN and Judge FLOYD joined.

OPINION

WILKINSON, Circuit Judge:

Ricardo Paz Ramos entered the United States illegally from Guatemala in 1989, and his wife Berta and their four children followed. Each child's arrival in the United States involved a similar sequence of events—Ricardo and Berta sent several thousand dollars to the child at a hotel in Mexico, who arrived illegally in the United States promptly thereafter. The Immigration Judge (“IJ”) and Board of Immigration Appeals (“BIA”) both determined that Ricardo's and Berta's monetary assistance amounted to “alien smuggling” pursuant to section 212(a)(6)(E) of the INA, and that they thus lacked the “good moral character” necessary for cancellation of removal. Because the IJ and BIA properly interpreted and applied the “alien smuggling” provision, we deny the petition for review.

I.

Ricardo Paz Ramos, his wife Berta Paz, and their four children, Amagailis, Teresa, Melvin and Berta Alicia, are natives and citizens of Guatemala. They all entered the United States without admission or parole over the past several decades, beginning with Ricardo in May 1989.

Ricardo's four children arrived in the United States between 1997 and 2001. The arrival of each child followed the same pattern. Amagailis was the first to enter the United States. In 1997, she called Ricardo from a hotel in Mexico and asked him to send money. She arrived in the United States shortly after Ricardo sent $3,500. In 1999, Melvin did the same; he called Ricardo from a hotel in Mexico to request money and entered the United States not long after receiving $3,500 from Ricardo. Also in 1999, Teresa called Ricardo from a hotel in Mexico with a similar request for funds. Ricardo sent $3,000 and Teresa then arrived in the United States. Finally, in 2001, Berta Alicia called Ricardo from a hotel in Mexico to ask for money and promptly arrived in the United States after receiving $4,000 from Ricardo.

According to Ricardo's testimony in Immigration Court proceedings, the money he sent to the hotels in Mexico was intended to enable his children to travel to the United States. Asked what the money he sent to the children was to be used for, Ricardo answered: “So they could arrive” and “[t]o go through—to go to this side.” With respect to Amagailis, Ricardo testified, “I sent her money so she could come” and “she was at the hotel and ... we just sent the money, so she could just cross.” Berta confirmed that the money was sent to help her children reach the United States. She testified that she and Ricardo jointly decided to send the children money in Mexico and that she knew the money was to be used “[t]o cross the border” and that it was sent “so they could come over here, cross the border.” Ricardo admitted that he was aware his children did not have the necessary papers to come to the United States. He testified: “I think I was violating the law.... [t]o help my children to enter into this country illegally.”

II.

A.

Ricardo's and Berta's testimony was offered in Immigration Court proceedings pertaining to Ricardo's application on June 23, 2000 for Special Rule Cancellation of Removal under the Nicaraguan Adjustment and Central American Relief Act, Pub.L. No. 105–100, 111 Stat. 2160, 2196 (1997) (“NACARA”). ¹

Congress enacted NACARA to amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), which replaced suspension of deportation relief with cancellation of removal—the latter a more demanding standard for those seeking to block their deportation from this country. See 8 U.S.C. § 1229b(b)(1). NACARA reduced the prospect of massive deportations of long-term U.S. residents from several countries, including Guatemala, as a result of IIRIRA's passage. Section 203 of NACARA permits aliens who satisfy specific criteria to apply for pre-IIRIRA suspension of deportation relief, instead of the more stringent post-IIRIRA cancellation of removal, even if they were charged with removability or inadmissibility after the effective date of IIRIRA. NACARA § 203(f). Section 203 also covers the spouse or children of a qualifying alien. See 8 C.F.R. § 1240.61(a)(4).

It is undisputed that as a national of Guatemala who first entered the United States before October 1, 1990, Ricardo was eligible to apply for NACARA cancellation of removal. See id. § 1240.60–61. At that point, in order to obtain relief Ricardo was required to demonstrate, among other things, that he had been continually present in the United States for at least seven years before his application date and that he had been a person of “good moral character” during that seven year period. See 8 C.F.R. § 1240.66(b).

Under the INA's general definition provision, a person is per se ineligible to be “regarded as, or found to be, a person of good moral character” if, inter alia, that person is an alien “smuggler” described in section 212(a)(6)(E) of the INA, 8 U.S.C. § 1182(a)(6)(E). 8 U.S.C. § 1101(f)(3). Section 212(a)(6)(E) of the INA, entitled “Smugglers,” applies to “[a]ny alien who at any time 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.” 8 U.S.C. § 1182(a)(6)(E). The burden of proof is on the applicant for NACARA cancellation to establish his qualification—including good moral character—by a preponderance of the evidence. See 8 C.F.R. § 240.64(a).

B.

Ricardo's application for NACARA cancellation of removal was referred to an IJ on August 31, 2004 by the United States Citizenship and Immigration Services, which found evidence that Ricardo failed to establish “good moral character” because “[d]uring the preceding seven years [he] knowingly encouraged, induced, aided and assisted [his] four children to illegally enter the United States in violation of immigration laws.” On the same day, all six Paz family members received Notices to Appear in Immigration Court on the charge of inadmissibility pursuant to section 212(a)(6)(A)(i) of the INA for having entered the United States without admission or parole. They conceded removability as charged.

The IJ denied petitioners' application for NACARA cancellation on April 13, 2006.² She determined that Ricardo and Berta failed to establish the good moral character necessary to receive relief under NACARA because they had violated section 212(a)(6)(E) of the INA by knowingly assisting their children to illegally enter the United States. In reliance on Ricardo's and Berta's testimony, the IJ concluded that Ricardo and Berta “sent money jointly to enable their children to come in through the U.S.–Mexican border.” According to the IJ, the testimony established that Ricardo and Berta were both “aware that their children had no documentation that would enable them to cross into the United States legally”; that Ricardo “had knowledge that [his children] could, or actually would, engage the assistance of smugglers”; and that Berta knew “that absent assistance from smugglers, her children would not have been able to enter the U.S.” Upon conducting an independent review of the record, the BIA upheld the IJ's decision on appeal. This petition for review followed.

III.

The determination that an alien is per se ineligible to establish the good moral character necessary for cancellation of removal “is essentially a legal determination involving the application of law to factual findings.” Jean v. Gonzales, 435 F.3d 475, 482 (4th Cir.2006).

We also begin our review of the decision below mindful of the deference owed the agency's determination in this area. First, we defer to the reasonable legal interpretations of the BIA, which is entrusted to interpret and enforce the INA. See INS v. Aguirre–Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (“[J]udicial deference to the Executive Branch is especially appropriate in the immigration context where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations.’ ”) (quoting INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)). Second, as we are not the original fact finders, our review of the agency's factual determinations is necessarily limited and we “must uphold the BIA's decision if it is supported by substantial evidence from the record as a whole.” See Huaman–Cornelio v. BIA, 979 F.2d 995, 999 (4th Cir.1992) (citing INS v. Elias–Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).

A.

As noted above, section 212(a)(6)(E) of the INA applies to “[a]ny alien who at any time 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.” 8 U.S.C. § 1182(a)(6)(E). Contrary to petitioners' contentions, the agency used the proper standard for evaluating the applicability of section 212(a)(6)(E) and substantial evidence supports the finding that Ricardo's and Berta's actions met this standard. We therefore defer to the agency's reasoned conclusion that Ricardo's and Berta's recurring attempts to financially facilitate their children's illegal entry into...