UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JOSE LUIS ZAMORA-VASQUEZ, Petitioner,

v. WILLIAM P. BARR, Attorney General, Respondent. No. 19-9554 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , MCKAY , and BACHARACH , Circuit Judges.

________________ _________________ This petition for review involves a challenge to an immigration judge’s decision on a non citizen’s application to readjust his status. The noncitizen, Mr. Zamora-V asquez, sought re adjustment of status on the ground that his wife is a United States citizen . The immigration judge rejected the applicati on on the ground that Mr . Zamora-Vasquez is

* Oral argument would not ma terially help us to d ecide this appeal. We have thus decided the appeal based on the appellate briefs and the record on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This order and judgme nt does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### January 30, 2020 Christopher M. Wolpert Clerk of Court2 inadmissible because he participated in the smuggling of undocumented
persons. See 8 U.S.C. § 1182(a)(6)(E)(i). The Board of Immigration Appeals summarily affirmed. Mr. Za mora-Vasquez petiti ons for review, arguing that he remains admissible because he didn’ t affirmatively act to help undocumented person s cross the border. We reject his argument, concluding that substantial evidence existed for the immigration judge to find affirmative involvement in a sc heme to bring undoc umented persons across the border. When the Board of Immigration Appeals summarily affirms an immigration judge, as in this case, we review the immigration judge’s order as the final agency determination. Elzour v. Ashcroft , 378 F.3d 1143, 1150 (10th Cir. 2004). Our level of scrutiny varies based on the nature of the petitioner’s challenge. Mr. Zamora-Vasquez’s challenge st ems from his convictions on criminal charges of transporting and conspiring to tr ansport undocumented
persons. See p. 4, below. These convictions led the governme nt to argue that Mr. Zamora-Vasquez was no longer considered “admissible,” a requirement for his eligibili ty to pursue ad justment of status. He responds that he remains admissible because he didn’t commit any affirmative acts to bring undocumented pers ons across the border. Fo r this challenge, we apply the substantial-evidence standard. See Elzour , 378 F.3d at 1150 (explaining that courts review fact ual findings under the substantial-3 evidence standard)

. Under the substantial-evid ence test, we ask whether factual findings are supported “by re asonable, substantial and probative evidence considering the record as a whole.” Id. We apply this standard to th e underlying stat ute, 8 U.S.C. § 1182(a)(6)(E)(i). Under this statut e, any noncitizen who “knowingly has encouraged, induced, assist ed, 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)(i). This statutory bar on admissibility applies only when a noncitizen performs an affirmative act to knowingly assist undocumented persons to enter the United States. See Dimova v. Holder , 783 F.3d 30, 40 (1st Cir. 2015) (requiring “‘an affirmative act of help, assistance, or encouragement’ for an in dividual to have enga ged in alien smuggling” (quoting Altamirano v. Gonzales , 427 F.3d 586 , 592 (9th Cir. 2005))). But an affirmative act may take place even if the noncitizen is absent at the border crossing. Soriano v. Gonzales , 484 F.3d 318, 321 (5 th Cir. 2007); Hernandez-Guadarrama v. Ashcroft , 394 F.3d 674, 679 (9 th Cir. 2005). Mr. Zamora-Vasquez acknowledges that he pi cked up three undocumented persons in El Paso. But Mr. Zamora-Vas quez asserts that he got involved only after th e three individuals had en tered the country. So, he argues, he didn’t do anything to help them cross the border.4 We conclude, however, that the underlying statute can encompass acts to help undocumented pe rsons even after they have crossed the border. See Urzua Covarrubias v. Gonzales , 487 F.3d 742, 747–48 (9th Cir. 2007) (rejecting a similar challenge and ho lding that alien smuggling under 8 U.S.C. § 1182(a)(6)(E)(i ) does not end once the undocumented person enters the United States). 1 Once the undocumented person has crossed the border, the noncitizen coul d still commit an act “in furtherance of” and as “part of” the process of secu ring entry into the country. See Dimova v. Holder , 783 F.3d 30, 38 (1st Cir. 2015) (quoting Matter of Martinez–
Serrano , 25 I. & N. Dec. 151, 154 (B.I.A. 2009)). For example, transporting undocume nted persons within hours of their border crossing can “evidence[] a plan for the meeting and transportation.” Soriano v. Gonzales , 484 F.3d 318, 321 (5 th Cir. 2007). Mr. Zamora-Vasquez disagrees, pointi ng to the limite d scope of his convictions under 8 U.S.C. § 1324(a)( 1)(A)(v)(I), (II), Bringing In and

1 Mr. Zamora-Vasquez re lies on the dissent in Urzua Covarrubias v. Gonzales . 487 F.3d 742, 751 (9th Cir. 2007) (Prege rson, J., dissenting) (stating that the noncitizen’s actions “do not co nstitute aiding and abetting alien smuggling because the actions occurred after [the undocumented person] had entered the c ountry”). Unlike the di ssenting judg e, however, the majority unambi guously held that a lien smuggling under § 1182(a)(6)(E) does not end once the undocumente d person crosses the border. See text accompanying note.5 Harboring Certain Aliens. According to Mr. Zamora-Vasquez, those crimes didn’t occur until after th e undocumented persons ha d crossed the border. But we need not address the sc ope of the criminal statute, § 1324(a)(1)(A), because it did not affect the immigration judge’s decision. The judge inst ead relied on Mr. Zamo ra-Vasquez’s underlying conduct. The sole issue is thus whether th e immigration judge could reasonably find condu ct that fell with in the scope of § 1182(a)(6)(E). Mr. Zamora-Vasquez argues that th e evidence is insu fficient to show that he was affirmativel y involved in th e transportation of undocumented persons across the border. But three undocumented person s testified that Mr. Zamora-Vasquez had picked them up near the border, driven them outof-state, provided them sh elter and food, and instructed them how to evade border patrol agen ts. Mr. Zamora-Vas quez admitted that he (1) had known that the individuals were undocumented and (2) had agreed to drive them in exchange for compensation. Gi ven the testimony and admissions, substantial evidence supports the immi gration judge’s finding that Mr. Zamora-Vasquez had affi rmatively acted to help the three undocumented persons enter the United States. See Dimova v. Holder , 783 F.3d 30, 39–40 (1st Cir. 2015) (picking up undocumented persons near the border after they had been in the United States for only a fe w hours provided “the assistance necessary for them to move forward with their effort to enter the country without apprehension” and co nstituted an affirmative act).6 Petition denied. Entered for the Court

Robert E. Bacharach Circuit Judge