Tapucu v. Gonzales

• Decision Date: 09 March 2005
• Docket Number: No. 03-3674.,03-3674.
• Citation: 399 F.3d 736
• Parties: Morhay TAPUCU, Petitioner, v. Alberto GONZALES, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

399 F.3d 736

Morhay TAPUCU, Petitioner, v. Alberto GONZALES, U.S. Attorney General, Respondent.

No. 03-3674.

United States Court of Appeals, Sixth Circuit.

Argued: December 3, 2004.

Decided and Filed: March 9, 2005.

Stanley J. Horn, Azulay, Horn & Seiden, Chicago, Illinois, for Petitioner.

Anh-Thu P. Mai, U.S. Department of Justice, Washington, D.C., for Respondent.

Mary Jane Candaux, Margaret J. Perry, U.S. Department of Justice, Washington, D.C., for Respondent.

Before: GILMAN and SUTTON, Circuit Judges; McKEAGUE, District Judge.^*

SUTTON, Circuit Judge.

In January 1995, Morhay Tapucu, a citizen of Turkey and a lawful permanent resident of the United States, went on a weekend-long road trip to Toronto with three of his friends from Chicago. The group of four rented a van for the trip and shared driving responsibilities on the way there and on the way back. Upon returning to the American border at the end of the weekend, immigration officers stopped the car and asked the four men to go into the office to answer questions about their admissibility. The officers determined that one of the friends, Kirkor Deveci, a Canadian citizen, did not have authority to re-enter the country. They then concluded that Tapucu was a "smuggler" of aliens because he had "knowingly [ ] 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)(i). The two other friends were allowed to re-enter the country. Tapucu violated the anti-smuggling provision, the officers claimed, because he happened to be the driver at the time the car reached the border and because Tapucu did not correct Deveci when Deveci told the officers that he lived in Canada.

In a two-page opinion bereft of any citation to relevant case law, the Immigration Judge (IJ) concluded that Tapucu was a smuggler of aliens and ordered him excluded from the United States. One member of the Board of Immigration Appeals summarily affirmed the order without opinion. While we generally give broad deference to the agency over these decisions, we cannot defer to this one. Tapucu did not "knowingly ... assist[ ]... [an] alien ... to enter the United States in violation of law" — first, because he testified that he thought Deveci could lawfully re-enter the country (and no one questioned that testimony or its credibility) and, second, because the anti-smuggling statute requires something more than openly presenting an alien to border officials with accurate identification and citizenship papers. We accordingly vacate the decision of the immigration judge and remand the case for additional proceedings consistent with this opinion.

I.

Tapucu was born in Elazig, Turkey, in 1959 and has been a lawful permanent resident of the United States since 1988. His wife is an American citizen and so is his son. For some time, he has owned a jewelry business in Chicago.

On January 27, 1995, Tapucu and three friends left Chicago, Illinois, in a rented van to attend a party in Toronto, Canada. The four friends shared driving responsibilities during the trip. Upon returning to the American border on January 29, 1995, immigration officers stopped the van at the inspection point in Windsor, Canada. Tapucu was driving at the time. The officers asked Tapucu and his friends to exit the van and to proceed inside to allow the officers to inspect their documents.

Once inside, the officers interviewed the passengers and eventually obtained sworn written statements from Tapucu and Deveci. The officers denied entry to Deveci because he was a Canadian citizen who did not reside in Canada but was living illegally in Chicago. During the interviews with the officers, Tapucu said that he knew Deveci had been living illegally in the United States for two years, that he had employed him in the past and that Deveci's family had applied for permanent residence status for him. In answering why he thought Deveci could re-enter the country, he explained that Deveci had done so before. After taking these statements, the immigration officers paroled Tapucu into the United States pending a hearing on his admissibility. The officers allowed the two other friends to enter the country without restriction.

While the IJ did not hear any live testimony at the hearing on Tapucu's petition, it did receive the sworn statements given by Tapucu and Deveci at the border, affidavits from Tapucu and Deveci, a copy of Deveci's birth certificate, and copies of Tapucu's marriage certificate and the birth certificate of his son. On January 12, 1999, the IJ issued a decision concluding that Tapucu had violated the anti-smuggling provision. See 8 U.S.C. § 1182(a)(6)(E)(i). In the IJ's view, clear and convincing evidence established that Tapucu had smuggled Deveci into the country because he was driving the van at the time it reached the border, because Tapucu knew that Deveci was living illegally in the United States and because Tapucu failed to correct Deveci's misstatement to the officers that he had a residence in Toronto, Canada. Deploying the summary-affirmance procedure of the Board of Immigration Appeals, a single member of the Board affirmed the IJ's decision without opinion on April 10, 2003.

II.

When the Board summarily affirms an IJ's order, it is the decision of the IJ that we review. Denko v. INS, 351 F.3d 717, 723 (6th Cir.2003). We review the IJ's legal conclusions de novo and the IJ's factual findings for substantial evidence. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

Under 8 U.S.C. § 1182(a)(6), "[i]llegal entrants" to the United States and "immigration violators" may not be admitted into the United States. The provision lists two types of "[i]llegal entrants": (1) "[a]liens present without admission or parole," id. at (6)(A), and (2) "[s]towaways," id. at (6)(D) ("[a]ny alien who is a stowaway is inadmissible"). And it lists three types of "immigration violators": (1) those who "[f]ail[ ] to attend removal proceeding[s]" regarding their potential inadmissibility or deportability, id. at (6)(B); (2) those who make "[m]isrepresentation[s]" of "material fact[s]" in seeking admission to the United States, id. at (6)(C); and (3) "[s]mugglers" of illegal aliens into the country, id. at (6)(E).

In claiming that Tapucu could not be readmitted to the United States, the government invoked the "smuggler" provision. That subsection reads in pertinent part:

(E) Smugglers.

(i) In general. Any 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 is inadmissible.

8 U.S.C. § 1182(a)(6)(E). Because Tapucu was a lawful permanent resident of the United States, the government had to establish that Tapucu was a "smuggler" of an illegal alien — namely, of Kirkor Deveci — by "clear, unequivocal, and convincing evidence." Woodby v. INS, 385 U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). The government did not meet this burden.

First, the words of the statute do not support the IJ's decision. Some of the statutory language, it is true, perhaps supports the IJ's decision — in the sense that one might say that Tapucu "assist[ed]" an "alien to enter or to try to enter the United States" by being the driver of the car at the time it reached the customs office at the American-Canadian border in Windsor, Canada. Though as for that, one has to wonder why a road trip in a rented van, in which the driving and expenses are shared equally by four individuals, means that Tapucu provided any more "assist[ance]" to the re-entry than Deveci himself or for that matter than either of the other two individuals on the trip. But that is a mere quibble when compared to our broader objection to the government's reading of the statute.

The government makes no suggestion that Tapucu "encouraged" or "induced" Deveci to enter the country illegally, so it must show that Tapucu "knowingly... assisted ... [an] alien to enter or to try to enter the United States in violation of law." (Emphasis added.) Far from showing that Tapucu knowingly assisted an illegal entry, the unvarnished facts show just the opposite — that Tapucu did not commit a single affirmative act designed to assist an illegal effort by Deveci to cross the border and that indeed Tapucu thought Deveci legally could re-enter the country.

Consider what happened before the men entered the immigration facility. When the four individuals reached the border, there were no hidden compartments in the car, no hidden passengers, no doctored documents, no effort to cross the border at a place where there were no border guards and no other affirmative act by Tapucu to cross the border surreptitiously. To the contrary, the four individuals did what legal travelers between the United States and Canada customarily do: They approached the border crossing; they handed the guard their papers; and they waited for the guard's response. When the guard asked them to go inside to answer additional questions, they did just that.

While the answers to those questions revealed that three of the passengers had authority to enter but the fourth (Deveci) did not, it is difficult to see how Tapucu had done anything to interfere with the proper enforcement of the immigration laws regarding who may enter the country. Up to this point, Tapucu no more assisted the illegal re-entry of an alien — by the happenstance of being the current driver of the car — than he assisted the government in preventing the re-entry. The immigration laws generally do not discourage aliens or their traveling partners from directly presenting themselves to immigration officials with authentic papers upon reaching the border.

Not quite true, the government responds. Tapucu was not an innocent because he acknowledged that he knew that Deveci was living illegally in the United States and had...