Dimova v. Holder, Jr. , 783 F.3d 30 ( 2015 )

United States Court of Appeals
For the First Circuit
Nos. 13-1550
13-2013
MILENA BOGDANOVA DIMOVA,
Petitioner,
v.
ERIC H. HOLDER JR., Attorney General,
Respondent.
PETITIONS FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Craig R. Shagin, with whom Rakhee Vemulapalli was on brief,
for petitioner.
Yedidya Cohen, Trial Attorney, Office of Immigration
Litigation, with whom Stuart F. Delery, Assistant Attorney General,
Civil Division, and David V. Bernal, Assistant Director, Office of
Immigration Litigation, were on brief, for respondent.
April 3, 2015
THOMPSON, Circuit Judge. Sometimes one ill-considered
decision is all it takes. Unfortunately, this is so for our
petitioner, Milena Dimova ("Dimova"). Dimova seeks review of a
decision from the Board of Immigration Appeals ("BIA") finding her
removable under the alien smuggling provisions of the Immigration
and Nationality Act, and ordering her removed to her native
Bulgaria. Although the record indicates Dimova was put in a very
difficult position by someone she trusted, it also leaves no doubt
that she nevertheless knowingly and voluntarily assisted her
friends as they attempted to cross illegally from Canada into the
United States. We must, therefore, deny Dimova's petition for
review.
I. BACKGROUND
The facts are not disputed. Dimova is a native and
citizen of Bulgaria. She emigrated to the United States in the
summer of 2002 after she "won a green card lottery,"1 and settled
in the Raleigh, North Carolina area. Her husband and young son are
United States citizens. Since coming to the United States, Dimova
1
A colloquialism. Dimova meant that she had been awarded a
"diversity visa." Diversity visas "are made available to citizens
of countries that have been under-represented within the annual
pool of immigrants entering the United States. The visas are
distributed by means of an annual lottery held by the Department of
State." United States v. Mensah, 737 F.3d 789, 792 n.1 (1st Cir.
2013) (internal citations and quotation marks omitted).
Individuals who go on to receive visas through this program become
eligible to apply for citizenship. See Gebre v. Rice, 462
F.Supp.2d. 186, 187 (D.Mass. 2006).
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has worked for a utility company and as an emergency medical
technician.
One of Dimova's co-workers, Milan Mihaylov, also happened
to be a neighbor of hers in North Carolina. Although it is not
clear from the record whether Dimova gave any thought to Mihaylov's
legal status when they first met, she testified during removal
proceedings that, if she "had to make an assumption back then," she
would have assumed he was a legal resident. This is because, she
explained, her own immigration status had been checked by their
employer, so she assumed Mihaylov's status would have been checked,
too, especially since he worked as a nurse. Moreover, Mihaylov had
been able to buy a house, which Dimova took as another sign that he
was in the country legally. But appearances can be deceiving:
unbeknownst to Dimova, Mihaylov did not have legal status in the
United States.
Mihaylov relocated (voluntarily) from Raleigh to Canada
in March of 2007, but he continued to stay in touch with Dimova
after the move. A few months later, Mihaylov asked Dimova if she
could meet him in Canada and drive his car (with Mihaylov, his
wife, and their young daughter inside) to North Carolina. He told
Dimova that he needed her help because he was a bad driver, it was
a 16-hour drive to North Carolina, and he couldn't drive for too
long due to a back problem. Dimova agreed. Mihaylov prepared two
notarized documents, one of which authorized Dimova to drive his
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car across the Canada-U.S. border, while the other allowed Dimova
to take his three-year-old child with her as well.
Mihaylov bought Dimova a one-way plane ticket to
Montreal, where they planned to begin their trip, and Dimova
arrived there on July 25, 2007. After meeting up with the
Mihaylovs, they all piled into the car, with Dimova taking the
wheel and driving south towards Vermont. As evening came on and
they approached the border, Mihaylov instructed Dimova to turn off
the highway, then directed her onto a dirt road in a remote area.
Mihaylov told Dimova that he wanted her to drop him and his wife
off there, by the side of the road. He implored Dimova to take the
car and their daughter into the United States.
Dimova was "very surprised" by this turn of events, as
she had assumed they would all be making the crossing together.
She told Mihaylov he was "crazy" and demanded to know why he was
doing this and why he was involving her. Mihaylov said that it
would be "better for us" this way. When Dimova stopped the car,
Mihaylov and his wife got out, taking "one or two backpacks with
them." Mihaylov told her that the papers she'd need to get their
car and their daughter across the border were in the glove
compartment.
He also gave Dimova a map of the vicinity, which allowed
her to find her way back to the highway on the Canadian side of the
border. In addition, the map showed where the Mihaylovs planned to
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cross the border and where they would be waiting to get picked up
once they made it into the United States. Mihaylov pointed these
locations out to Dimova.2
An argument ensued, with Dimova telling him "I don't want
to have nothing to do with this, I am not coming back for, for you
or your wife, I don't care." She also told him, "if I take your
car from here right now . . . I'm going straight back to Raleigh,
North Carolina." While they were arguing, Mihaylov's daughter
"started being fussy," so Mihaylov decided that his family should
stay together after all.
Finally, Dimova told Mihaylov he was "too crazy," and she
took their car and left. It was approximately 8:00 p.m. and still
light out, and Dimova drove directly to the border crossing
station. Although she made it to the border okay, Dimova noticed
the border patrol agents got suspicious when they looked in the
glove compartment, found the documents allowing Dimova to take
Mihaylov's car and child across the border, and saw that Dimova was
by herself. Nevertheless, they allowed Dimova through, and she
continued south towards North Carolina for several hours, planning
to drive all the way there without turning back.
As Dimova put distance between herself and the border,
she "remember[ed] the child," who had been out in the woods all
2
A border patrol agent testified that the drop-off area is
"well known . . . as a location where aliens and narcotics are
smuggled into the United States."
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night, and "just had to make a judgment call" on what to do next.
After some introspection, she opted to turn around out of concern
for the Mihaylovs' child, who she knew was stranded in the woods.
She did this even though she now realized the Mihaylovs had likely
crossed into the United States illegally. By the time she found
the waiting Mihaylovs (at the place Mihaylov indicated on the map),
it was "early dawn . . . starting to get light out."3 Dimova and
the Mihaylovs were subsequently apprehended by border patrol agents
in Vermont, and Dimova was ultimately charged, in immigration
court, as removable for having engaged in alien smuggling.4
Dimova appeared for trial before an immigration judge
("IJ"). After finding Dimova's testimony credible, the IJ found
that, prior to this misadventure, Dimova "reasonably believed that
[Mihaylov] and his family had legal status in the United States,
due to his profession, visibility in the workplace, and his
ownership of a home in North Carolina." Further, he explicitly
found Mihaylov "lied to and took advantage of" Dimova to secure her
help.
3
Mihaylov testified that he was going to "give her" about ten
hours to come back and pick up his family. He also stated that he
had begun to think that Dimova was not going to come back for them
since it was "almost seven or eight hours until she, she came
back."
4
The Government informs us that this matter was referred to
the U.S. Attorney's Office, but it declined to prosecute Dimova
criminally.
-6-
The IJ found as a fact that Dimova traveled to Canada "to
meet with [Mihaylov] and his family to assist them in driving to
North Carolina in [Mihaylov's] vehicle." He also found "it was not
[Dimova's] intention to help [the Mihaylovs] illegally enter the
United States until after several hours of deliberation and [she]
only returned to ensure the safety of the young child." Thus, the
IJ found that Dimova did not have any knowledge that the Mihaylovs
lacked legal status, nor did she have any intent to assist an
illegal crossing at any time while she was in Canada.
Nevertheless, he determined that Dimova was removable
because, by coming back for and picking up the Mihaylovs, she
"knowingly . . . encouraged, induced, assisted, abetted, or aided
any . . . alien to enter or try to enter the United States in
violation of law." This was so, he found, because Dimova "knew at
the time that she returned to pick the family up that they had
entered [the] country illegally."
Dimova appealed to the BIA, which issued a written
opinion from a single board member setting forth its own analysis
and affirming the IJ's removal order. The BIA considered and
rejected Dimova's argument that she could not have assisted the
Mihaylovs with their entry into the United States because they had
crossed the border hours before she went back for them. The BIA
concluded that Dimova, although she did not initially wish to help
the Mihaylovs with their crossing, nevertheless "had the requisite
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intent when she knowingly travelled [sic] to the designated pick-up
point, to aid the family in their entry into the United States."
The BIA further noted that it was immaterial that the Mihaylovs had
already entered the United States and that they did not cross the
border with any assurance of Dimova's help because, ultimately, her
coming back for them was a knowing, affirmative act of assistance.
It concluded that had the group not been apprehended, Dimova's
"affirmative act would have led to the [Mihaylovs'] successful
entry into the United States." Dimova filed a Petition for Review
with this Court.
Concurrently, Dimova filed a motion for reconsideration
with the BIA, in which she sought to have her appeal considered by
a panel rather than a single member. Dimova did not attempt to
introduce any new evidence, instead arguing that the BIA's original
decision was incorrect as a matter of law because there was no
prearranged plan with the Mihaylovs, and their entry was complete
by the time she picked them up. In denying her motion, the same
BIA member who penned the denial of her appeal stated that, "[t]he
fact that the illegal entrants may have already crossed the border
by the time she [i.e., Dimova] returned is not important to our, or
the Immigration Judge's decision." What the BIA found dispositive
was that Dimova "took affirmative steps" to aid what she knew by
that time was the Mihaylovs' illegal entry: she "turned her car
around, arrived at the prearranged meeting spot and picked up the
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[Mihaylovs] to drive them back to North Carolina." In so doing,
the BIA found, Dimova "intended to follow through with their entry
as originally discussed in Canada."
Following this latest setback, Dimova filed a petition
for review with this Court.5 We consolidated both petitions, and
ordered oral argument. That having been completed, this matter is
now ripe for resolution.
II. STANDARD OF REVIEW
The IJ issued a written decision finding Dimova
removable, and the BIA authored its own opinion "adopt[ing] and
affirm[ing]" the IJ's factual findings and reasoning. The BIA also
set forth its own additional analysis. Accordingly, we review both
decisions, Rashad v. Mukasey, 554 F.3d 1, 4 (1st Cir. 2009),
"focus[ing] our review on the BIA's decision rather than the IJ's,"
Lima v. Holder, 758 F.3d 72, 78 (1st Cir. 2014) (citing López v.
Holder, 740 F.3d 207, 210 (1st Cir. 2014)); Lin v. Mukasey, 521
F.3d 22, 26 (1st Cir. 2008) ("Where the BIA adopts the IJ's ruling,
but also engages in discussion of its own, we review the decisions
of both together.").
5
Interestingly, rather than a straight-out reversal, Dimova
wants us to "remand[] to a panel of the BIA for further proceedings
to determine if an actual agreement between Ms. Dimova and the
aliens was entered into before the aliens entered the United
States," and direct it to terminate proceedings against her if such
an agreement is not supported by the record. Because we ultimately
conclude that the BIA did not err, we have no need to consider the
appropriateness of a remand.
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The Government has never contested Dimova's story about
what happened and why she did what she did. And no one takes issue
with any of the IJ's factual findings on appeal.6 Accordingly,
though we remain primarily concerned with the BIA's decision, we
are required to determine whether the uncontested facts render
Dimova removable under the alien smuggling provision of the
Immigration and Nationality Act. This presents a question of law,
which we review de novo. Lima, 758 F.3d at 78 (applying de novo
review to "the BIA's conclusion that a noncitizen's criminal
conviction constitutes grounds for removal"); see also Altamirano
v. Gonzales, 427 F.3d 586, 591 (9th Cir. 2005) (determining that,
where a petitioner "offers no objections to the IJ's findings of
fact, th[e] case presents a legal question we review de novo")
6
Dimova does, however, assert the BIA made improper factual
findings not made by the IJ in the first instance, namely, that
Dimova and the Mihaylovs had a "group arrangement" and a
"prearrangement" to meet in the United States. See 8 C.F.R.
§ 1003.1(d)(3)(iv) ("[T]he [BIA] will not engage in factfinding in
the course of deciding appeals."). Having reviewed both of the
BIA's written decisions, we disagree. The BIA explicitly indicated
in its first decision that it was adopting the IJ's findings, and
we see nothing undercutting this statement in its denial of
Dimova's motion for reconsideration. No one--not DHS, the IJ, or
the BIA--has ever said that Dimova had any intent to assist in an
illegal crossing at any time prior to the Mihaylovs' physical
crossing. To the extent the BIA referenced a prearrangement, we
take this as a reference to the uncontested facts that Mihaylov
told Dimova where he and his family would wait for her, Dimova
eventually decided to go back there, and she found the Mihaylovs
waiting at that very spot. These facts, taken together, lead to
the logical conclusion that the pick-up point was prearranged, even
though Dimova's agreement to the arrangement was belated.
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(internal quotation marks omitted).7 Nonetheless, we generally
give "some deference to the [BIA's] reasonable interpretation of
statutes and regulations that fall within its purview." Pan v.
Gonzales, 489 F.3d 80, 85 (1st Cir. 2007); see also Fustaguio Do
Nascimento v. Mukasey, 549 F.3d 12, 15 (1st Cir. 2008) (saying that
we give "due deference" in that regard).
III. DISCUSSION
The Government contends Dimova is removable pursuant to
INA § 237(a)(1)(E)(i), 8 U.S.C. § 1227(a)(1)(E)(i). That section
provides:
Any alien who (prior to the date of entry, at
the time of any entry, or within 5 years of
the date of any entry) [1] knowingly has [2]
encouraged, induced, assisted, abetted, or
aided any other alien [3] to enter or to try
to enter the United States in violation of law
is deportable.
INA § 237(a)(1)(E)(i), 8 U.S.C. § 1227(a)(1)(E)(i). The BIA
concluded that by returning for and picking up the Mihaylovs, all
the while knowing they had entered the United States illegally,
Dimova affirmatively assisted the Mihaylovs' illegal entry and
thereby became removable. On appeal, Dimova raises several grounds
7
There is one additional wrinkle, easily ironed out. The BIA
issued not one, but two written decisions, one affirming the IJ,
and the second denying Dimova's motion for reconsideration.
Technically, we review the BIA's denial of the motion for
reconsideration for abuse of discretion only, Martinez-Lopez v.
Holder, 704 F.3d 169, 171 (1st Cir. 2013), but because we
ultimately conclude from our de novo review that the BIA did not
err in affirming the IJ, we need not separately address the motion
for reconsideration.
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to support her position that the uncontested facts are insufficient
to conclude that she assisted an illegal entry. Although her brief
tends to mush her various arguments together instead of spelling
them out separately, we have unpacked them and placed them in
chronological order, beginning with Dimova's time in Canada and
ending with her apprehension in Vermont. We'll address them in
this order.
First, Dimova says that she did not render any assistance
or encouragement prior to the Mihaylovs' physical crossing into the
United States. This is because she believed the Mihaylovs had
legal status in the United States when she flew to Canada. And,
when she eventually found out that they did not and were going to
try to get in illegally, Dimova absolutely refused to help. Dimova
points to this refusal as demonstrating that she did nothing to
cause or encourage the crossing. And furthermore, Dimova says, she
had no affirmative duty to report the Mihaylovs' plan to evade
inspection when she herself went through the border crossing, so
her silence in this regard doesn't count as an act of assistance
either. Thus, in her view, there is no evidence in the record that
allows a finding that she did anything to assist, aid, or encourage
the Mihaylovs' illegal entry at any time she was in Canada or
crossing the border herself.
With respect to her actions once in the United States,
Dimova asserts that she did not assist an illegal entry because the
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Mihaylovs had already entered the United States when she returned
for them. Thus, even if she knowingly rendered some sort of
assistance to them, she did so only after their entry was complete
and, therefore, she may not be punished under the alien smuggling
statute.8
Failing that, Dimova argues that to be removable under
the statute, she must have acted with the intent to assist the
Mihaylovs' illegal entry. This intent is absent, she says, because
the IJ specifically found, and the Government does not contest,
that she returned for the Mihaylovs out of a humanitarian concern
for their young child who had been outside in the woods overnight,
not out of any desire to help them get away with an illegal border
crossing. Thanks to this finding, Dimova contends that she did not
possess the necessary mens rea to support a finding of alien
smuggling.
The Government, not surprisingly, sees things in a
different light and characterizes Dimova's view of what constitutes
8
Dimova suggests that it would have been more appropriate for
the Government to proceed against her pursuant to a separate
statute that prohibits knowingly transporting individuals who have
entered illegally. See INA § 274(a)(1)(A)(ii), 8 U.S.C.
§ 1324(a)(1)(A)(ii) (providing criminal penalties for an individual
who "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 . . . such alien within the United States").
Because the Government has only proceeded against Dimova on the
basis of the alien smuggling charge, it is irrelevant to this
appeal whether her conduct may satisfy an offense defined in a
different statute.
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alien smuggling as "cramped." The Government urges us to adopt the
reasoning of the other circuits that have "rejected a narrow
interpretation" of the alien smuggling statute.
According to the Government, it is immaterial whether
Dimova "induced or encouraged" the Mihaylovs to enter the country,
nor does it matter whether anything she did caused the Mihaylovs to
cross the border or even whether there was a prearrangement.
Neither does it matter that Dimova may have ultimately been
motivated by a concern for the Mihaylovs' young child, rather than
a desire to help them get to North Carolina undetected by border
patrol. What does matter, the Government says, is that Dimova
"knowingly aided the Mihaylovs in advancing their scheme by
returning to a designated spot and driving them toward their
destination, whether out of humanitarian concern or not."
Having sufficiently dressed the stage, we can now raise
the curtain on our analysis.
1. Dimova's Actions in Canada
Beginning with Dimova's time in Canada, the Government
does not even contend that any of her actions there rendered her
removable. We agree with the parties that, based upon the
statute's plain language, she did nothing in Canada to encourage,
induce, assist, aid, or abet the Mihaylovs' crossing. Indeed, it
is uncontested that Dimova believed the Mihaylovs had the legal
right to enter the United States when she flew to Canada and began
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driving south. And when the Mihaylovs told her what they intended,
the record shows that Dimova outright refused to help, going so far
as to tell them that if she drove away in their car, she wouldn't
be back for them.
In addition, the Government does not contend that Dimova
had any duty to report the Mihaylovs' intent as she herself crossed
the border. Any potential argument along these lines has,
therefore, been waived. United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).
Accordingly, we conclude that none of Dimova's actions
while she was in Canada or during her own border crossing
constitute alien smuggling.
2. Actions in the United States
Next, we must determine whether Dimova's actions taken on
the United States side of the border, namely, returning for and
picking up the Mihaylovs, render her removable. We consider first
her argument that the Mihaylovs had already completed their entry
when she went back for them.
i. "Entry"
Dimova's position implicates the meaning of "entry"
within the context of the alien smuggling statute. We have not
often had cause to interpret the INA's alien smuggling provisions,
and we have not yet passed upon the meaning of its phrase "to enter
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or to try to enter." Nevertheless, we do not write on a blank
slate: the BIA has already given its own definition.
According to the BIA, "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 Martinez-Serrano, 25 I. & N. Dec.
151, 153 (B.I.A. 2009) (internal quotation marks omitted) (emphasis
removed). The BIA has also determined that "the act of 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." Id. at 154 (citing Altamirano, 427 F.3d
586; Urzua Covarrubias v. Gonzales, 487 F.3d 742, 748 (9th Cir.
2007); Larios-Mendez v. INS, 597 F.2d 144 (9th Cir. 1979))
(emphasis added).
The BIA's interpretation of the statutory term does not
strike us as "arbitrary, capricious, or clearly contrary to law."
Da Silva Neto v. Holder, 680 F.3d 25, 28 (1st Cir. 2012). To the
contrary, it is logical and makes eminent good sense. Accordingly,
we should defer to the BIA's interpretation of the term, "entry,"
and we do so here. Cf. id. at 33 ("[W]e must defer to the BIA's
conclusion that a crime involves moral turpitude if that conclusion
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is neither arbitrary nor contrary to law.") (internal quotation
marks omitted).9
Nevertheless, Dimova believes we should view "entry"
narrowly to conclude that the Mihaylovs completed theirs upon
physically crossing from Canada to the United States. A major
problem with her argument, however, is that the cases she cites to
back up this proposition are easily distinguishable. Unlike here,
where only hours elapsed between the physical crossing and Dimova's
return, each of Dimova's cases involved a passage of time on the
order of days, or even weeks, between the illegal crossing and the
act of assistance, leading to the conclusion that the illegal entry
had been completed. See Parra-Rojas v. Att'y Gen. U.S., 747 F.3d
164, 170 (3d Cir. 2014) (finding petitioner, whose "conduct was
strictly limited to picking up the aliens once they had already
crossed the border and transporting them from one area in the
9
Citing I.N.S. v. St. Cyr, 533 U.S. 289, 320 n.45 (2001),
Dimova urges us not to defer to the BIA's definition because such
deference is only warranted when the statute is ambiguous, and, in
her view, the alien smuggling statute is not. Yet, Dimova does not
bring our attention to any statutory definition of "entry," and we
have previously said that "[w]here Congress has not spoken directly
to the issue, the interpretation given by the BIA is entitled to
deference unless arbitrary, capricious, or manifestly contrary to
the statute." Cabral v. I.N.S., 15 F.3d 193, 194 (1st Cir. 1994).
Furthermore, the other case Dimova relies on, I.N.S. v. Cardoza-
Fonseca, 480 U.S. 421 (1987), cuts against her, as the Supreme
Court indicated there that, in general, we are to follow the BIA's
lead where Congress inserts into a statute a term that "can only be
given concrete meaning through a process of case-by-case
adjudication." Id. at 447-48. It seems to us that "entry," as
used in the alien smuggling act, is just such a term.
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United States to another" did not violate alien smuggling
provisions where petitioner did not know the aliens before they
entered the country and the illegal crossings took place "several
days" before the petitioner picked them up); Matter of I.M., 7
I. & N. Dec. 389, 390-91 (B.I.A. 1957) (concluding that respondent
who transported several aliens did not aid or abet their illegal
entries where the respondent did not provide transportation until
days or weeks after each individual physically entered the United
States). Accordingly, we find them of little persuasive value
given the facts in this record.10 Furthermore, even these cases do
not find that the illegal entry was complete at the moment the
individual illegally crossed into the United States.
We believe "entry" should be given a broader meaning than
the one Dimova urges. We agree with the Ninth Circuit that entry
into the United States "requires more than mere physical presence
within the country." United States v. Gonzalez-Torres, 309 F.3d
594, 598 (9th Cir. 2002). "To 'enter,' an alien must cross the
United States border free from official restraint." Id.
In Gonzalez-Torres, our sister circuit dealt with an
allegation that an alien entered the United States without official
10
Because we find Parra-Rojas distinguishable on the facts,
we need not engage with the Government's contention that the Third
Circuit's opinion in that case is "in tension" with Fifth and Ninth
Circuit opinions. Neither do we need to address the Government's
implication that the Third Circuit improperly failed to defer to
the BIA's interpretation of "entry" with regards to alien
smuggling.
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authorization in violation of the applicable statute. The
defendant there had been under constant surveillance from the time
he crossed the border until his arrest, leading the Ninth Circuit
to conclude he had "still not made an entry despite having crossed
the border . . . because he lack[ed] the freedom to go at large and
mix with the population." Id. (internal quotation marks omitted).
The Court concluded that it is only when "an alien is not
discovered until some time after exercising his free will within
the United States, [that] he has entered free from official
restraint." Id.
Although there is no evidence showing the Mihaylovs were
under surveillance from the time they crossed the border to the
moment of their arrest mere hours later, the record demonstrates
the Mihaylovs did not exercise their free will in any meaningful
way after their physical crossing. The only thing the Mihaylovs
did in the United States was wait overnight, in a remote wooded
area, for Dimova to pick them up. All told, they were in the
United States for a matter of hours, just a walk from the border,
before Dimova rendered the assistance necessary for them to move
forward with their effort to enter the country without
apprehension. Cf. Soriano v. Gonzales, 484 F.3d 318, 320-21 (5th
Cir. 2007) (rejecting the petitioner's argument that he merely
transported aliens already within the United States, instead of
assisting that entry, where the petitioner met and picked up the
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aliens at a McDonald's parking lot within hours of their physical
crossing into the United States). Moreover, the group's
apprehension occurred in Vermont, long before they arrived at their
planned end-destination in North Carolina. Accordingly, we can not
say on these facts that the Mihaylovs' entry was complete at the
time Dimova came back for them.
While we could conceive of different facts that might
have led us to conclude the Mihaylovs completed their entry before
Dimova picked them up, we need not engage in that academic exercise
here. This case does not require us to announce any bright-line
rule or a definitive definition of "entry" applicable in all cases.
Wherever the line may fall, the facts here do not approach it.
ii. Assistance
Having determined that the Mihaylovs had not completed
their "entry" when Dimova picked them up, we must now determine
whether she "encouraged, induced, assisted, abetted, or aided"
their attempt. Dimova says that she did not render assistance
within the meaning of the statute because she did not act in
accordance with a prearranged plan, and because there was no causal
connection between her actions and the Mihaylovs' entry.
As with entry, we have not previously ruled upon the
meaning of assistance within the context of the alien smuggling
statute. We again look to the decisions of other courts that have.
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The Ninth Circuit--in a case involving identical
statutory language under a different section of the INA--observed
that "the plain meaning of this statutory provision requires an
affirmative act of help, assistance, or encouragement" for an
individual to have engaged in alien smuggling. Altamirano, 427
F.3d at 592; see also Tapucu v. Gonzales, 399 F.3d 736, 740 (6th
Cir. 2005) (holding that the alien smuggling provision "requires an
affirmative and illicit act of assistance in shepherding someone
across the border"). We agree.
We also agree with our sister circuits that an individual
need not be physically present at the time and place of the illegal
crossing to have assisted an illegal entry. Soriano, 484 F.3d at
321; Sanchez-Marquez v. I.N.S., 725 F.2d 61, 63 (7th Cir. 1984)
(finding that an individual who promised to meet and transport
seven individuals after their illegal entry had violated the INA's
alien smuggling provision). Had Congress intended to incorporate
such a physical presence requirement, it presumably would have said
so when it drafted the statute. Thus, we do not consider the fact
that Dimova was not physically present with the Mihaylovs when they
crossed from Canada to Vermont as inoculating her against the alien
smuggling charge.
Dimova argues that she did not act in accordance with a
prearranged plan, noting in her reply brief that "[s]he was not
part of a conspiracy, plan, scheme or understanding that she was
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going to do anything in violation of the immigration laws of the
United States." Be that as it may, the statute does not predicate
liability on whether or not the individuals had a prearranged plan
before the illegal crossing or attempted crossing. All Dimova need
have done was knowingly provide some sort of affirmative assistance
to enable the Mihaylovs' (attempted) entry. And she did not even
need to be present at the time and place of the Mihaylovs' actual
crossing in order to be considered to have rendered assistance.
Further, and contrary to her view of the statute, Dimova
does not need to have "caused" the Mihaylovs to cross the border,
nor did she have to "encourage" or "induce" them to do so in order
to become removable under the alien smuggling statute. Neither
does the statute differentiate between assistance rendered before
or after the physical crossing. See Martinez-Serrano, 25 I. & N.
Dec. at 154 (recognizing that an individual may engage in alien
smuggling by rendering an act of assistance after a physical
crossing is made). To be removable, Dimova need only have
"assisted, abetted or aided" the Mihaylovs' attempted illegal
entry. Thus, what is determinative is whether Dimova somehow eased
or facilitated what she knew to be an attempted illegal entry.
The evidence in the record amply supports the BIA's
conclusion that Dimova's affirmative acts assisted the Mihaylovs'
attempted entry. As darkness approached on the evening preceding
her arrest, Dimova drove down a dirt road and reached a remote
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Canadian location where the Mihaylovs got out of their car. Dimova
left, knowing as she did so that she was driving away with their
only form of transportation (apart from their feet). She also knew
the Mihaylovs were relying on her to pick them up on the U.S. side
of the border. The record does not suggest that the Mihaylovs had
a back-up or alternative plan for evading apprehension just inside
the border should Dimova refuse to help them out. This is
corroborated by the fact that when Dimova returned for them
approximately eight hours later, the Mihaylovs were waiting right
where they said they would be (not to mention Mihaylov's testimony
that he planned to wait ten hours for her to return).
On this record, we have no trouble concluding that
Dimova's affirmative acts assisted the Mihaylovs' illegal entry.
Dimova rendered invaluable assistance by plucking the Mihaylovs
from a remote location and allowing them to resume their southward
journey without detection. Without Dimova's help, for all
practical purposes the Mihaylovs would have been stranded in the
woods and, more likely, caught by border patrol. Her affirmative
actions clearly assisted the Mihaylovs' "actual and intentional
evasion of inspection" at the border. Martinez-Serrano, 25 I. & N.
Dec. at 153.
iii. Mens Rea - Humanitarian Concern
Dimova's final argument is that even if she assisted the
Mihaylovs in their illegal entry, still she did not engage in alien
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smuggling because, as the IJ found, she was motivated solely out of
concern for the Mihaylovs' child. In other words, she acted out of
humanitarian concern, and by picking up the Mihaylovs she intended
to help their child, not assist their illegal entry. This argument
is without merit.
Unfortunately for Dimova, the statute's plain language
does not contain an exception for assistance stemming in whole or
in part from humanitarian concern. And Dimova does not cite any
other authority providing for such an exception. As relevant to
the facts in this record, the statute requires nothing more than a
knowing act of assistance to an attempted illegal entry into the
United States.
At trial, Dimova admitted that she knew the Mihaylovs had
crossed the border illegally. And while we can only speculate as
to what would have happened to the Mihaylovs had Dimova not gone
back, it is safe to say that her actions made it easier for them to
avoid apprehension at the border. This is all the statute
requires, regardless of whether she was motivated (in whole or in
part) by humanitarian concern.
IV. CONCLUSION
Time to sum up. Although Dimova's so-called friend lied
to and took advantage of her, Dimova nevertheless came to the
decision to affirmatively assist the Mihaylovs in their border
crossing. She then returned for and helped the Mihaylovs, knowing
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they were trying to get into the country illegally. Like the IJ
and the BIA, we do not question Dimova's humanitarian motivation.
Nevertheless, the law is clear and unambiguous, and it does not
provide an exception to Dimova. While it gives us no pleasure, the
law brooks but one outcome here.
The petition for review is denied.
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