or the facts in the case really not you the implication of the facts or my client was up to canada to assist a former neighbor drive back to north carolina when she went up she had every reason to believe in the help least he and his wife was and that she was to pick them up on the other side of the border she wanted no part of it and told them so and told them that she wouldn't do it a fight ensued the husband and wife got out alone with their three year old child in a u s citizen and left into the woods near the canadian border and she went back they were fifty feet from the border patrol officers actually trying to flee from a chasing border patrol agent yes well it's certainly eluding you know that there would be a crime is it helping them  i would say no and i mean let me just say as as we go over these cases because life recycled you know hypotheticals and facts in my mind many times that when you compare just generally these smuggling statutes you tend to look at the evidence in one case to the other but the heart of these cases is not a comparison of evidence the heart of the case is the substance of the violation and the question is i believe in this case i believe the question is whether knowingly picking somebody up to who was entered illegally and transporting them within the united states not having offered any of you know proposed assistance before they entered is that a smuggling point wish now this is another kind of final wish but is it a smuggling violation did you enter and i do not see it in this case because they had no reason to believe my client was going to return to help them in the only reason she did was not to help them but out of out of an understandable fear that you know the child was left out there with them it was late you know three o'clock in the morning in the wee hours she returned another way to look  at the situation is suppose instead of her having those thoughts suppose they called the rock and said you know our child is leaving come back and help us we're in the united states for fifteen  of someone who will be legally in the country and they know they're legally in the country the violation of the law now there's no question that they did that you claim you that they were illegally in the country correct and there's no question that he me respond to two of those things because i think both of those those issues that your friends are important one these are unusual facts nobody had trouble believing her once it was presented to the court they believed her and not just not just the judge but t this it is it is it is not a file a should of the predecessor statute which was the smoking statute the only difference really being compensation there was no compensation or that doesn't matter either the other the fact that i would have no trouble aren't you know no trouble conceiving if she agreed to help them before hand we have a problem she did not agree to do that she did the opposite so they had no expectation when they went to that would come to the united states they were doing their own restless act of their own invention without any assistance from her except when they duped her to drive them toward the border and i mean nobody complained her for that  people i know are lawfully present the united states at least one or two times a week and i'm representing them helping them and what you're talking about is entry into the united states they entered now looting would be a crime bringing to resolve it quite simply you know concede our time to call it the way we would resolve that is we have to draw a line someplace and if it's not clear where is it is it fifteen miles in one hundred miles and two hundred miles and at some point you have to say to enter my city you know take your shoes off before you enter the house i mean when you go to the house i don't mean you know when you're in your bedroom and if i'm stopped talking my kids would enter has very specific has a very specific mean operation should be she was not intending to bring them in she did not bring them in she did not encourage them to come in all she did was after they were in go back to them  i do not believe is a deportable violation with out a waiver meaning permanent banishment from the united states is a significant disability thank you help her for  record further indicates that approximately six or seven hours later she was spotted it was part of vermont approximately one hundred yards from the united states border she was then or intercepted about fifteen miles from the united states order convicted of entering the united states illegally before she got there that's correct if they had already completed the offense of entering the united states on lawfully before she got there it seems t when she gets there by definition you're telling me it's a post entry event that is now going to take place for the purpose of ilion smuggling the term enter is a term of art and one which the court should  crossing mate be involved in the interest so long as those acts are in furtherance of and may be considered part of the act of secure and accomplishing the entry and this definition is consistent with the board's his law since nine hundred fifty seven and it's important to note here that matter of the order and third circuit decisions require the board third circuit to consider that outer extremes of the definition of alien smuggling in those cases there was assistance to an individual who  the who was assisting did not know prior to the entry and the assistance came days after the physical border crossing knows two cases the board and the third circuit agreed that it was an alien smuggling and we don't have an extreme situation like that here where mr motors assistance came a mere hundred meters or so from the border near number of hours from the entry not days and there is a nexus between their entry and her primitive assistance she did show for them from the montreal airport to the border so there was some participation whether or not there was a parisian is unnecessary to the determination and well let me ask about that so let's assume there's no pre arranged in other words they get over there what i hear you saying is if the person knows that they enter the united states illegally you can't give them a ride in an accident circumstance like that although it probably would be deportable france that would be a good candidate for when they get down to miami and they asked for rod he west and here's here's what matter of i am and stand for that there is there is a point at which the entry ends so if the alien had entered days before if there was no nexus or connection still decided to wait approximately seven hours for her to return mr miller of testified in immigration court and yet he provided no evidence as to what the plan b might have been but you want to keep pushing back on the factual finding that we all found remarkable but the that the deal was never made on the other side of the border and the government's position is that it doesn't matter whether there's a pre arrangement because she knowingly assisted them to complete the entry and we don't like the person she's no different on these facts than the person who pulled over in the road and then it's in the rye as long as they found out that they had just come into the country illegally if it's snowing assistance and there's a nexus which is strong enough to be entry and there would be a fact specific immigration service decision is enough and enough itself the board says those findings those conclusions are enough to fund our movability and that's all that's really necessary for the determination in this case it seems to me that the facts in the second circuit or even better than they are here it looks like the person really kind of knew they were helping on the tail end of the smuggling operation and yet the second circuit rejected the position you're asking us  spotted one hundred meters from the border one hundred meters this is almost literally the physical border crossing yes she was stopped fifteen miles into the country but she was spotted one hundred meters into the country and so this is not a close call this just isn't a close case we would have a different circumstance if mr mobile got a call from her friends once they had reached baltimore and they had asked her to drive them from baltimore to north carolina in such a situation we could say the entry had long ration since the initial entry and yet i'm having trouble understanding where on either one of those factors what criteria you're dancing for us to have some sort of predictable knowable dividing line as to how far from the border and how much time if the court asks was this act in furtherance of and can it be considered a part of the act of securi accomplishing the entry and the answer is yes then amused the definition and satisfies the test which has been set up by the board generally and which is consistent with what were the case law and the circuit precedent and in this case these fully accomplished we don't know but we do know that the border patrol was aware of her entry because she was stopped at eleven twenty five even before they were on the lookout for her and the area where that entered was an area known for earlier smuggling so there is a significant chance that they would be caught we know they were looking for her but we certainly can't tell what would have happened had she not returned and if you're on her side no further questions all submit thank you so much her very quick points a very significant difference between this case and soriano and part of us is that this is a deportation case not an in a disability case and the significance of that is the burden is on the government not on question i kind of kick myself for not having developed that more at the hearing below but the reality is it was the government's burden to show what plan b was and they never did i don't think it's in the record at least as as of my memory what the operations were behind the seat of my read the transcript i don't recall that but even assuming that to be the case he the reality of all that we're talking about the timeline did you know the poor before they enter it's all about going to the inference that you were involved in putting them in it's not about let's suppose you were driving in canada and you had somebody you knew entry really means a foreign thing to tech did and that could be a crime and they could have charged her with that she might have had defenses for it i believe she did but he then we really don't know what her intention was either after they were picked up i mean clarity is extremely important a clarity of what the rules are and what it is you're looking for because i think what happened in this case more than anything else was they looked at the evidence and they they failed to see the through the evidence to the substance of what was coming and they you know close in time knew them before he and that's all irrelevant as it goes to the substance of the entry that's why it's relevant because you could presume or infer from that that maybe she was