Giovanna Guerrero v. Atty Gen USA ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 11-3038
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GIOVANNA MARIBEL GUERRERO
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
______
On Petition from the Board of Immigration Appeals – Newark, NJ
(File No. A075-875-025)
______
Argued February 14, 2013
Before: HARDIMAN and GARTH, Circuit Judges, and STARK, District Judge *
(Filed: March 11, 2013)
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OPINION OF THE COURT
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Thomas E. Moseley, Esq. (ARGUED)
Suite 2600
One Gateway Center
Newark, NJ 07102
*
The Honorable Leonard P. Stark, District Judge for the United States District Court for
the District of Delaware, sitting by designation.
1
Sara J. Bergene, Esq. (ARGUED)
Justin R. Markel, Esq.
Stefanie N. Hennes, Esq.(ARGUED)
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
GARTH, Circuit Judge.
This petition for review of a decision of the Board of Immigration Appeals (BIA)
principally raises the question of whether a lawful permanent resident alien (LPR) who is
convicted of attempting to bring another alien to the United States without prior
authorization in violation of 8 U.S.C. § 1324(a)(2)(A) 1 is therefore “inadmissible” to the
United States as an alien smuggler under 8 U.S.C. § 1182(a)(6)(E)(i). 2
1
8 U.S.C. § 1324(a) provides that: “(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 later be
taken with respect to such alien shall, for each alien in respect to whom a violation of this
paragraph occurs--
(A) be fined in accordance with Title 18 or imprisoned not more than one year, or both . .
. .”
2
8 U.S.C. § 1182(a)(6)(E)(i) provides that “[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 is inadmissible.”
2
We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a). Because the
evidence of record is insufficient to support the BIA’s conclusion that the petitioner,
Giovanna Maribel Guerrero, was “inadmissible,” we will reverse the decision of the BIA.
I
We write principally for the benefit of the parties and recite only the facts essential
to our disposition. Guerrero is a native and citizen of Peru and a LPR of the United
States. In April, 2005, after a short trip abroad Guerrero attempted to reenter the United
States at Miami International Airport as a returning LPR. Guerrero was not admitted but
was instead paroled into the United States for purposes of prosecution.
A federal grand jury subsequently indicted Guerrero on five counts of “knowingly
attempt[ing] to bring aliens to the United States . . . knowing and in reckless disregard of
the fact that such aliens had not received prior official authorization to come to, enter and
reside in the United States, regardless of any official action which might later be taken
with respect to such aliens” in violation of 8 U.S.C. § 1324(a)(2)(A). Guerrero was also
indicted on one count of knowingly providing a passport to someone other than the
person to whom it was issued, in violation of 18 U.S.C. § 1544. 3 Guerrero pleaded guilty
to one count of violating 8 U.S.C. § 1324(a)(2)(A) and was sentenced to 18 months of
probation. The remaining counts—including the sixth count concerning the provision of a
passport—were dismissed.
3
18 U.S.C. § 1544 proscribes “willfully and knowingly furnish[ing], dispos[ing] of, or
deliver[ing] a passport to any person, for use by another than the person for whose use it
was originally issued and designed . . . .”
3
In July, 2008, the Department of Homeland Security charged Guerrero as a
removable alien pursuant to 8 U.S.C. § 1182(a)(6)(E)(i), which provides that “[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 is inadmissible.” At
the ensuing proceedings before the Immigration Court, Guerrero contended as a threshold
matter that as a LPR she could not be deemed “inadmissible” and should, instead, be
subject to removal proceedings. 4 She further argued that the fact that she pleaded guilty
to an offense under § 1324(a)(2)(A) is insufficient to prove the essential elements of §
1182(a)(6)(E)(i). 5
The Immigration Judge found that Guerrero “engaged in illegal activity after
having departed the United States,” thus rendering her an applicant for admission
pursuant to 8 U.S.C. § 1101(a)(13)(C)(iii). 6 The Immigration Judge further determined
4
The difference is significant. If she were not an applicant for admission, Guerrero, who
had been admitted to the United States and had become a LPR, would be subject to
removal only if she violated a statute so providing. She would also be entitled to
constitutional due process protections, which apply to aliens already in the United States
but not to applicants for admission. Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
5
Guerrero also invoked two exceptions to removability not relevant to this appeal and
applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1). We need not
address at length Guerrero’s claim that she is eligible for cancellation of removal. 8
U.S.C. § 1229b(a)(3) establishes that aliens convicted of aggravated felonies are
ineligible for cancellation of removal. 8 U.S.C. § 1101(a)(43)(N) in turn specifically lists
alien smuggling offenses under § 1324(a)(2) as aggravated felonies. Moreover, this Court
has held that a conviction under § 1324(a)(2) constitutes an aggravated felony,
notwithstanding that the offense is a misdemeanor under federal law. Biskupski v.
Attorney General, 503 F.3d 274, 279-81 (3d Cir. 2007).
6
8 U.S.C. § 1101(a)(13)(C) provides: “An alien lawfully admitted for permanent
residence in the United States shall not be regarded as seeking an admission into the
United States for purposes of the immigration laws unless the alien . . . (iii) has engaged
in illegal activity after having departed the United States . . . .”
4
that Guerrero’s guilty plea provided substantial evidence to demonstrate that she
knowingly assisted or aided undocumented aliens in trying to illegally enter the United
States. The Immigration Judge therefore held that Guerrero was “inadmissible” and not
eligible for cancellation of removal.
Guerrero appealed from the decision of the Immigration Judge to the BIA. The
BIA, conducting de novo review, affirmed the Immigration Judge’s judgment in all
respects. This timely petition for review followed.
II
We review the BIA’s legal conclusions de novo, subject to established principles
of deference. See Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir. 2004). 7 We will
reverse the BIA’s ultimate “inadmissibility” decision only if it is “manifestly contrary to
law.” 8 U.S.C. § 1252 (b)(4)(C).
III
We begin by addressing the question of whether the BIA properly treated Guerrero
as an applicant for admission to the United States, despite her status as a LPR of this
country. Generally an alien who is a LPR of the United States returning from abroad is
not regarded as an applicant for admission. 8 U.S.C. § 1101(a)(13)(C). A returning LPR
7
Here, we are asked to review an unpublished decision by a single member of the BIA.
“Although we routinely accord Chevron [U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842 (1984)] deference to published decisions of the BIA, this
Court has never announced the deference due an unpublished decision rendered by a
single member of the BIA.” De Leon-Ochoa v. Attorney General of the United States,
622 F.3d 341, 349 (3d Cir. 2010) (citation omitted). As in De Leon-Ochoa, because the
parties have not briefed this issue and our level of deference is not dispositive, we do not
address this question.
5
who “has engaged in illegal activity after having departed the United States,” however, is
deemed to be an applicant for admission. 8 U.S.C. § 1101(a)(13)(C)(iii). By virtue of her
guilty plea to § 1324(a)(2)(A), Guerrero plainly falls within the scope of §
1101(a)(13)(C)(iii), which proscribes an alien from engaging in illegal activity after
leaving the United States. Hence Guerrero was properly treated as an applicant for
admission into this country. See Matter of Guzman Martinez, 25 I. & N. Dec. 845, 846-
47 (BIA 2012).
Guerrero contends that, notwithstanding the plain statutory language, her actions
do not fall within the terms of § 1101(a)(13)(C)(iii). We do not agree. Guerrero first
argues that § 1101(a)(13)(C)(iii) should be read to encompass only crimes of moral
turpitude and thus should not be triggered by § 1324(a)(2)(A). There is, however, no
support in the statutory text for this qualification. Section 1101(a)(13)(C) provides
separately for crimes of moral turpitude and other substantive offenses, see 8 U.S.C. §
1101(a)(13)(C)(v), and Guerrero offers no persuasive grounds for merging the provisions
of § 1101(a)(13)(C)(v) into § 1101(a)(13)(C)(iii).
Guerrero also contends that § 1101(a)(13)(C)(iii) should be read to apply only to
crimes that began upon a permanent resident’s departure from the United States and not
to illegal activity that began at some time after departure. This claim similarly finds no
support in the statutory text. As we have observed, the statute refers simply to illegal
activity conducted “after having departed the United States.” 8 U.S.C. §
1101(a)(13)(C)(iii) (emphasis added).
6
Guerrero invokes Rosenberg v. Fleuti, 374 U.S. 449 (1963), in support of her
construction of § 1101(a)(13)(C)(iii). Fleuti, which established the basic contours
governing when a returning LPR will be treated as an applicant for admission, did
consider the purpose of departure. Id. However, the operative statutory language, which
was enacted over three decades after Fleuti was filed, plainly provides no support for
Guerrero’s claim.
Thus, as to Guerrero’s first claim, we will affirm the BIA’s holding that Guerrero
was an applicant for admission to the United States and therefore could be held
“inadmissible.” We turn next to the question of whether the BIA properly concluded that
the evidence of record demonstrates her “inadmissibility” pursuant to 8 U.S.C. §
1182(a)(6)(E)(i).
IV
In support of its conclusion that Guerrero is “inadmissible,” the BIA relied solely
on its determination that “all of the conduct described in [8 U.S.C. § 1324(a)(2)(A)] falls
within the range of activity described under [§ 1182(a)(6)(E)(i)].” 8 Thus, we must
determine whether the BIA correctly concluded that Guerrero’s guilty plea to one count
of an indictment charging that she “knowingly attempt[ed] to bring aliens to the United
States . . . knowing and in reckless disregard of the fact that such aliens had not received
prior official authorization to come to, enter and reside in the United States, regardless of
any official action which might later be taken with respect to such aliens,” in violation of
8
We note that the BIA’s decision incorrectly references 8 U.S.C. § 1324(a)(1)(A) instead
of § 1324(a)(2)(A) as the offense of conviction. We construe this as a scrivener’s error.
7
8 U.S.C. § 1324(a)(2)(A), see Certified Admin. Record at 121 (emphasis added), is
sufficient to demonstrate that she “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,”
rendering her “inadmissible” under § 1182(a)(6)(E)(i) (emphasis added). 9
A critical textual distinction separates the statutes at issue. Section
1182(a)(6)(E)(i) requires an alien to knowingly assist another alien to enter or attempt to
enter the country in violation of the law. Section 1324(a)(2)(A), however, applies to an
alien who brings another alien to the country “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” (emphasis added). Thus § 1324(a)(2)(A), the statute to which
Guerrero pleaded guilty, may be satisfied by an alien who does not actually know (but
rather recklessly disregards) whether the alien being brought to the country is legally
entitled to enter. We are therefore unable to determine whether Guerrero was convicted
on the basis of knowing conduct, the only conduct which satisfies § 1182(a)(6)(E)(i), or
9
Guerrero contends that in reaching this conclusion the Immigration Judge relied on an
improper standard of proof. The BIA, however, reviewed the Immigration Judge’s
decision de novo and gave no indication that it deferred to the Immigration Judge’s
decision. We therefore are reviewing only the BIA’s decision. Abdulai v. Ashcroft, 239
F.3d 542, 549 n.2 (3d Cir. 2001). The BIA opinion makes no reference to the standard of
proof it employed, and all of the BIA’s conclusions disputed on appeal are legal
determinations based on statutory construction.
If the BIA’s legal conclusion is flawed, the matter must be remanded regardless of
the standard employed. The parties have not sufficiently briefed, and we decline to
resolve, the “open question of who then bears the burden of showing admissibility, or a
lack of inadmissibility, once it has been determined that an alien is an applicant for
admission.” Matter of Rivens, 25 I. & N. Dec. 623, 626 (BIA 2011).
8
merely reckless conduct, which does not. 10 See In Re: Xiomara Esther Rodriguez-De
Espinoza, A041 319 055 – San Diego, CA, 2008 WL 5025213, at *2 (BIA Oct. 28,
2008).
In light of the present record, which provides no evidence for determining that
Guerrero knowingly assisted another alien to illegally enter the United States, we
conclude that the BIA erred when it determined that Guerrero’s guilty plea to an offense
under § 1324(a)(2)(A) was sufficient to demonstrate her “inadmissibility” pursuant to §
1182(a)(6)(E)(i).
Because “an administrative order cannot be upheld unless the grounds upon which
the agency acted in exercising its powers were those upon which its action can be
sustained,” SEC v. Chenery, 318 U.S. 80, 95 (1943), we will therefore reverse the
decision of the BIA and remand the matter to the BIA for further proceedings consistent
with this opinion.
10
Guerrero was indicted for attempting to bring aliens to the United States “knowing and
in reckless disregard” of their lack of authorization to enter. Because the statute itself
may be satisfied by either knowledge or recklessness, however, demonstration of either
mens rea is adequate for conviction. United States v. Niederberger, 580 F.2d 63, 68 (3d
Cir. 1978). See also Matter of Espinosa, 10 I. & N. Dec. 98 (BIA 1962).
9