* The Honorable Donald C. Pogue, of the United States Court

of International Trade, sitting by designation.

06-0804

Chambers v. Gonzales

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2006

4 (Argued: April 25, 2007 Decided: July 13, 2007)

5 Docket No. 06-0804-ag

6 -------------------------------------

7 Michelle A. Chambers,

8 Petitioner,

9 - v -

10 Office of Chief Counsel, Department of Homeland Security, Alberto

11 R. Gonzales, United States Attorney General,

12 Respondents.

13 -------------------------------------

Before: McLAUGHLIN, SACK, Circuit Judges, and POGUE, Judge.

* 14

15 Judge Pogue dissents in a separate opinion.

16 Petition for review of a decision by the Board of

17 Immigration Appeals ordering removal on the grounds that the

18 petitioner knowingly assisted the attempted entry of an illegal

19 alien. 

20 Petition denied.

21 Victor Schurr, Pelham, NY, for

22 Petitioner.

23 Ari Nazarov, Trial Attorney, Office of

24 Immigration Litigation, United States

25 Department of Justice (Peter D. Keisler,

26 Assistant Attorney General, and Alison
2

1 M. Igoe, Senior Litigation Counsel, on

2 the brief), Washington, DC, for

3 Respondents.

4 SACK, Circuit Judge:

5 Michelle Chambers, a Jamaican native, petitions for

6 review of a decision by the Bureau of Immigration Appeals ("BIA")

7 ordering her removal pursuant to 8 U.S.C. § 1182(a)(6)(E)(i). In

8 re Michelle A. Chambers, No. A 56 034 092 (B.I.A. Jan. 24, 2006),

9 aff'g No. A 56 034 092 (Immig. Ct. Buffalo Aug. 26, 2004). She

10 contends that the BIA erred in finding that she knowingly

11 assisted her former boyfriend's attempted illegal entry into the

12 United States and that irrespective of whether she knew he could

13 not legally enter the United States, her actions were

14 insufficient to constitute an affirmative act of assistance

15 within the meaning of the statute. We disagree and therefore

16 deny the petition.

17 BACKGROUND

18 Chambers was, at all relevant times, a lawful permanent

19 resident of the United States residing in Hempstead, Long Island,

20 New York. In February 2003, she traveled by automobile with her

21 brother, a United States citizen, to Ontario, Canada, to visit

22 relatives. In 1990, her former boyfriend, Christopher Woolcock,

23 a resident of Jamaica, had been deported by the United States

24 after being convicted of a drug-related felony. He was also in

25 Ontario at the time of Chambers's visit, allegedly to attend his

26 uncle's wedding. Prior to Chambers's and Woolcock's trips to

27 Ontario, they agreed during the course of a telephone
3

1 conversation to meet there and return together to the United

2 States. 

3 On February 23, 2003, with Chambers's brother driving,

4 she, her brother, and Woolcock traveled from Ontario headed for

5 the United States in an automobile with Georgia license plates. 

6 Chambers was in the front passenger seat and Woolcock was in the

7 back seat. At the border crossing, Chambers's brother handed

8 United States customs officials his passport, his sister's travel

9 documents, and a green card issued in Woolcock's name. Because

10 the customs database revealed that Woolcock had previously been

11 deported, the three were referred to immigration offices for

12 further examination. 

13 During subsequent questioning by an immigration

14 inspector, Chambers repeatedly said that Woolcock lived in Long

15 Island and that he had traveled to Canada with her and her

16 brother. She also denied having Woolcock's passport. Moments

17 later, however, she retrieved it from underneath a seat cushion

18 in the area where she had been waiting to be interviewed. 

19 Following her interview, Chambers gave a sworn statement to the

20 inspector in which she admitted (1) lying about Woolcock's

21 residence; (2) having previously agreed with Woolcock to

22 accompany him at the Canadian border as he tried to enter the

23 United States; (3) that prior to that conversation, "[h]e was

24 going to come some other way through Kennedy airport"; (4) that

25 she thought Woolcock had last been in the United States seven

26 years before; (5) that she was aware he had been deported
1 Woolcock, as an alien deported for commission of an

aggravated felon, is permanently ineligible to gain entry. See 8

U.S.C. § 1182(a)(9)(A)(i). 

4

1 previously; and (6) that Woolcock was planning to stay with her

2 at her home upon entering the United States. 

3 Chambers was charged with knowingly aiding or assisting

4 the illegal entry of another alien under 8 U.S.C.

5 § 1182(a)(6)(E)(i), and given a notice to appear at removal

6 proceedings. That removal hearing was held before Immigration

7 Judge ("IJ") Philip J. Montante, Jr. Chambers testified that she

8 thought Woolcock was permitted to enter the United States because

9 he had shown her a green card (with his "much younger" picture on

10 it) and had told her that an immigration officer at the time of

11 his deportation in 1990 had informed him that he could return to

the United States after ten years.1 12 She again admitted having

13 lied to immigration officers both when she told them that

14 Woolcock was a Long Island resident and when she said that she

15 did not know the whereabouts of Woolcock's passport. And she

16 admitted that she had also lied when she told the immigration

17 inspector during her interview that Woolcock was going to live

18 with her when they returned to Long Island. In fact, Chambers

19 testified, he was to live with his mother. 

20 Chambers explained her misstatements by saying she was

21 frightened because she had been told she would be deported. 

22 Asked on cross-examination why she had never decided to visit her
2 There is no indication that Chambers received compensation

for assisting Woolcock's attempted entry into the United States. 

5

1 family in Canada until the weekend that Woolcock was also in

Canada, Chambers answered, "Well, we just decided."2 2

3 At the conclusion of the hearing, the IJ issued an oral

4 decision concluding that Chambers had knowingly aided the illegal

5 entry of another alien. The IJ noted Chambers's several

6 misstatements at the Canadian border and found that "she lied to

7 the Court today." In re Michelle A Chambers, A 56 034 092, at 9. 

8 Relying on these misstatements and Chambers's sworn statement

9 that she and Woolcock had planned the trip across the border, the

10 IJ concluded that Chambers knew that Woolcock could not legally

11 enter the United States and that her actions "were an attempt to

12 induce and to encourage" Woolcock's illegal entry. Id. at 9-13. 

13 The IJ also noted that he perceived Chambers's testimony that

14 Woolcock told her that he could reenter the United States ten

15 years after his deportation to be inconsistent with Chambers's

16 statement to the immigration inspector that Woolcock was last in

17 the United States seven years prior to the 2003 incident at the

18 border. Id. at 11 ("Well, if he had been in the United States

19 seven years ago, doesn't that fly in the face of her statement

20 that [Woolcock] told her allegedly that he could return after 10

21 years and here it was seven years ago that he was in the United

22 States."). 

23 On January 24, 2006, the BIA affirmed in a short

24 opinion that closely followed the IJ's reasoning. First, the BIA
6

1 determined that "if [Chambers] believed that Mr. Woolcock could

2 only reenter the United States after having been absent for 10

3 years after his deportation, [Chambers] would have had knowledge

4 that Mr. Woolcock would not have been able to reenter the United

5 States after the passage of only 7 years." In re Michelle A.

6 Chambers, A 56 034 092, at 2. Second, it concluded that in light

7 of Chambers's numerous admitted and deliberate misrepresentations

8 to customs officials at the border, the IJ did not err in finding

9 Chambers's testimony at the hearing incredible or in "finding

10 that her deception at the border reflected guilty knowledge." 

11 Id. 

12 Chambers petitions for review.

13 DISCUSSION

14 I. Standard of Review

15 "Since the BIA affirmed the IJ's order in a 'brief

16 opinion [that] closely tracks the IJ's reasoning,' and since our

17 conclusion is the same regardless of which decision we review,

18 'we will consider both the IJ's and the BIA's opinions.'" Lewis

19 v. Gonzales, 481 F.3d 125, 129 (2d Cir. 2007) (quoting Wangchuck

20 v. Dep't of Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006))

21 (brackets in original).

22 We review the IJ's and BIA's factual findings for

23 substantial evidence, and we consider questions of law and

24 applications of law to fact de novo. Secaida-Rosales v. INS, 331

25 F.3d 297, 306-07 (2d Cir. 2003). The BIA's findings of fact "are
3 Aliens such as Chambers who have achieved lawful permanent

resident status in the United States are regarded as seeking

admission to the United States if they have "engaged in illegal

activity after having departed the United States." 8 U.S.C.

§ 1101(a)(13)(C)(iii) ("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.").

7

1 conclusive unless any reasonable adjudicator would be compelled

2 to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). The

3 petitioner's knowledge at the time in question is a question of

4 fact. See, e.g., Farmer v. Brennan, 511 U.S. 825, 842 (1994);

5 Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996); see

6 also Locurto v. Guliani, 447 F.3d 159, 177 n.6 (2d Cir. 2006)

7 ("[T]he defendants' intent is a factual question . . . .").

8 II. Chambers Acted Knowingly

9 Section 212(a)(6)(E)(i) of the Immigration and

10 Naturalization Act provides that an alien is not admissible into

11 the United States if he or she "at any time knowingly has

12 encouraged, induced, assisted, abetted, or aided any other alien

13 to enter or try to enter the United States in violation of the

law." 8 U.S.C. § 1182(a)(6)(E)(i).3 14 Chambers argues that the

15 circumstances surrounding her stop at the border compel the

16 conclusion that she did not act "knowingly." Specifically, she

17 contends that her behavior was consistent with the acts of
8

1 someone who thought she was participating in a legal act: her

2 brother readily handed over Woolcock's green card to the customs

3 officer; no subterfuge in the form of fraudulent documents or

4 hidden compartments was used; and Chambers complied with all of

5 the various officers' requests. She argues further that her

6 misstatements were not only immaterial to the charge of aiding

7 illegal alien entry, but also were later recanted. 

8 But Chambers does not contest that she lied at the

9 border regarding Woolcock's residency and the whereabouts of his

10 passport. The nature of these misstatements plainly supports the

11 inference drawn by the IJ and the BIA that Chambers knew Woolcock

12 could not legally enter the United States. For example, her

13 statements that Woolcock lived in Long Island and drove with her

14 and her brother to Canada could reasonably be construed as an

15 attempt by Chambers to convince officials that Woolcock then

16 resided in the United States lawfully. Such an inference would

17 in turn support the corollary inference that Chambers wanted

18 border officials to think Woolcock was a legal resident of the

19 United States because she knew he would otherwise not be

20 permitted to enter in light of his immigration status. These

21 inferences, taken together with Chambers's admissions that she

22 and Woolcock planned the means and method of his return to the

23 United States and that she knew that he had been deported
9

1 previously, constitute substantial evidence to support the IJ's

2 and BIA's findings that Chambers acted knowingly to assist

3 Woolcock's attempted illegal entry. See Siewe v. Gonzales, 480

4 F.3d 160, 168 (2d Cir. 2007) ("So long as there is a basis in the

5 evidence for a challenged inference, we do not question whether a

6 different inference was available or more likely."); see also id.

7 ("[W]e will reject a deduction made by an IJ only when there is a

8 complete absence of probative facts to support it . . . ."). 

9 To be sure, the IJ and BIA appear to have ascribed

10 misplaced significance to the fact that Chambers professed to

11 believe both that Woolcock had been in the United States within

12 the past seven years and that an immigration officer had told

13 Woolcock he could reenter after ten years. These two assertions

14 are not inherently contradictory. Assuming that Chambers had

15 believed Woolcock's assertion that he could reenter the United

16 States ten years after his deportation in 1990, nothing about the

17 statement would compel Chambers to think that the ten-year clock

18 restarted each time Woolcock entered the United States, as the IJ

19 and BIA seemed to believe. Nevertheless, neither the IJ nor the

20 BIA relied solely -- or, in the case of the IJ, substantially --

21 on this reasoning in finding that Chambers knowingly assisted

22 Woolcock's attempted illegal entry. Instead, each expressly and

23 additionally relied on Chambers's repeated misstatements and the
10

1 reasonable inferences drawn therefrom. We therefore conclude

2 that the record contains substantial evidence in support of the

3 agency's finding that Chambers acted with the requisite knowledge

4 and that, were we to remand, the agency would reach the same

5 result even absent the likely error that we have identified. See

6 Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 401 (2d Cir.

7 2005) ("Certainly if the IJ explicitly adopts an alternative and

8 sufficient basis for her determination, no remand is required.");

9 see also Siewe, 480 F.3d at 166-67; Li Zu Guan v. INS, 453 F.3d

10 129, 137-38 (2d Cir. 2006).

11 III. Chambers's Actions Are Sufficient to Constitute

12 Assistance Under Section 212(a)(6)(E)(i)

13

14 As an alternative basis for granting her petition,

15 Chambers argues that her actions do not as a matter of law rise

16 to the requisite affirmative assistance that § 212(a)(6)(E)(i)

17 requires. In support, she cites cases in which divided panels of

18 the Sixth and Ninth Circuits have held that the anti-smuggling

19 statute requires an affirmative act of assistance or

20 encouragement beyond either "openly presenting an alien to border

21 officials with accurate identification and citizenship papers,"

22 Tapucu v. Gonzales, 399 F.3d 736, 737 (6th Cir. 2005), or "mere

23 presence in [a] vehicle with knowledge of [a] plan" to smuggle an
11

1 alien into the United States, Altamirano v. Gonzales, 427 F.3d

2 586, 596 (9th Cir. 2005).

3 Our Circuit has yet to set forth anything approaching a

4 bright-line test as to the nature of the actions that will or

5 will not suffice to support a finding that an alien has

6 "encouraged, induced, assisted, abetted, or aided" another in

7 illegally entering the United States. 8 U.S.C.

8 § 1182(a)(6)(E)(i). We need not do so here. Chambers did not

9 present agents at the border with accurate information, as did

10 the petitioner in Tapucu, and she was not "mere[ly] presen[t] in

11 the vehicle" in which her brother drove Woolcock across the

12 border like the petitioner in Altamirano. She does not qualify

13 as an innocent bystander on any reading of the facts. The fact

14 that no fraudulent documents were used and no payments by

15 Woolcock were made does not overcome the ample evidence to

16 support the IJ's and BIA's findings that Chambers personally

17 arranged to provide transportation for Woolcock into the United

18 States and purposefully deceived customs officials at the time of

19 his attempted entry. Chambers traveled to Canada with the pre20 planned intent to bring Woolcock across the border in her car

21 upon her return, and she actively sought to mislead customs

22 officials about Woolcock's residency status in a way that, if

23 believed, would have made it easier for him to enter the United
12

1 States. There is thus sufficient evidence from which the IJ and

2 the BIA could conclude that she assisted, abetted, or aided

3 Woolcock in his attempt illegally to enter the United States. 

4 Section 212(a)(6)(E)(i) requires no more.

5 CONCLUSION

6 For the foregoing reasons, Chambers's petition for

7 review is denied.

8
13

1 Pogue, Judge dissenting: 

2 The majority opinion correctly states that the BIA’s

3 conclusion that Ms. Chambers violated the alien-smuggling statute

4 is based on the agency’s finding that Ms. Chambers had knowledge

5 of Woolcock’s illegal scheme. The majority opinion also

6 acknowledges – and I agree - that the BIA improperly concluded

7 that Ms. Chambers must have known that Woolcock’s reentry was

8 illegal based on her stated belief that he had been in the

9 country within the last seven years. As the majority notes, if

10 Ms. Chambers believed that Woolcock could reenter the country any

11 time after ten years had passed since his 1990 deportation, 

12 whether Woolcock had previously violated the imagined ten-year

13 period says nothing about what Ms. Chambers necessarily believed

14 or knew regarding the propriety of his entry in 2003. 

15 I depart from the majority’s opinion, however,

16 because the BIA’s decision also makes it clear that the agency’s

17 erroneous finding - that Ms. Chambers had knowledge of Woolcock’s

18 possible prior reentry - was the major ground for its decision.

19 While the BIA also “found no clear error” in the IJ’s finding

20 that Ms. Chambers’ “deception at the border reflected guilty

21 knowledge,” the BIA did not state that Ms. Chambers’

22 misrepresentations provided an alternative basis for its

23 decision. Based on this record, therefore, I believe we should

24 review the decision on its stated grounds. SEC v. Chenery Corp.,

25 332 U.S. 194, 196 (1947) (“a reviewing court, in dealing with a

26 determination or judgment which an administrative agency alone is
14

1 authorized to make, must judge the propriety of such action

2 solely by the grounds invoked by the agency.”); see also Lin v.

3 U.S. Dep’t of Justice, 453 F.3d 99, 106 (2d Cir. 2006). 

4 Moreover, Ms. Chambers corrected or recanted each

5 of her misrepresentations during the customs investigation, and

6 ultimately provided correct information at the border during the

7 investigation. Accordingly, it seems to me that this case is

8 more like the case cited by the majority, Li Zu Guan v. INS, 453

9 F. 3d 129 (2d Cir. 2006), where the court remanded because it

10 could not be “certain that the errors below did not play a role

11 in the decision to deny relief.” Id. at 141. As in Li Zu, the

12 agency’s error here played at least “a role in the decision to

13 deny relief.” Id. Furthermore, as the court in Tapucu

14 explained, there is nothing “illegal about driving a known

15 illegal alien with admittedly authentic papers to the American

16 border for examination by the border guards.” Tapucu v.

Gonzales, 399 F.3d 736, 739-40 (6th 17 Cir. 2005); see also Doe v.

Gonzales, 484 F.3d 445, 449-50 (7th 18 Cir. 2007) (noting that

19 presence at the scene of persecution may not constitute

20 “assistance” in the absence of support or encouragement, and

21 further noting that aiding in a cover-up without advance

22 participation in planning such a cover-up also does not

23 constitute assistance in the actual scheme). As a result, I

24 cannot say with confidence that the BIA would have reached the

25 same result in the absence of error, and it seems to me that the

26 BIA should be given the opportunity to weigh the exculpatory
15

1 evidence and make an initial error-free determination as to

2 whether relief is appropriate. 

3 Finally, in order to support a conclusion that Ms.

4 Chambers actually assisted in an illegal entry in violation of

5 Section 212(a)(6)(E)(i), the majority relies on a hypothetical

6 finding – that “Chambers traveled to Canada with the pre-planned

7 intent to bring Woolcock across the border in her car upon her

8 return, and she actively sought to mislead customs officials

9 about Woolcock’s residency status in a way that, if believed,

10 would have made it easier for him to enter the United States.” 

11 To find a violation of the statute, however, requires more than a

12 hypothetical finding that the petitioner’s actions “would have

13 made it easier;” it requires that the actions actually assisted,

14 abetted or aided. Perhaps more importantly, the agency made no

15 such finding. Rather, the BIA made the more nuanced and limited

16 conclusion, upon which it did not rely to find a violation of the

17 statute, that Ms. Chambers “arranged to meet with Mr. Woolcock,

18 an alien previously deported from the United States as an

19 aggravated felon, at her family's home in Canada so that he could

20 travel to the United States with her and her brother by car.” In

21 re Michelle A. Chambers, A 56 034 092, at 1-2. Similarly, with

22 regard to the majority’s claim of deception, the agency found

23 only that “... despite the respondent's alleged belief that the

24 [sic] Mr. Woolcock could legally enter the United States, the

25 record reflects that the respondent made several

26 misrepresentations to the immigration officials in secondary
16

1 inspection . . . . Specifically . . . [Chambers] told [the Agent]

2 that all three of the passengers in the car had traveled to

3 Canada together and that they all lived together in Long Island,

4 New York.” Id. at 2. As noted above, Ms. Chambers later

5 corrected or recanted these statements and ultimately provided

6 correct information at the border during the investigation. It

7 does not seem to me that it is our role to expand the agency’s

8 findings in order to support its conclusion.