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

of International Trade, sitting by designation. 06-0804 Chambers v. Gonzales UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 August Term, 2006 3 (Argued: April 25, 2007 Decided: July 13, 2007) 4 Docket No. 06-0804-ag 5

------------------------------------- 6 Michelle A. Chambers, 7 Petitioner, 8

- v - 9 Office of Chief Counsel, Department of Homeland Security, Alberto 10 R. Gonzales, United States Attorney General, 11 Respondents . 12

------------------------------------- 13 Before: McLAUGHLIN, SACK, Circuit Judges , and POGUE, Judge . * 14 Judge Pogue dissents in a separate opinion. 15 Petition for review of a decision by the Board of 16 Immigration Appeals ordering removal on the grounds that the 17 petitioner knowingly assisted the attempted entry of an illegal 18 alien. 19 Petition denied. 20 Victor Schurr, Pelham, NY, for 21 Petitioner
. 22 Ari Nazarov, Trial Attorney, Office of 23 Immigration Litigation, United States 24 Department of Justice (Peter D. Keisler, 25 Assistant Attorney General, and Alison 262 M. Igoe, Senior Litigation Counsel, on 1 the brief), Washington, DC, for 2 Respondents . 3 SACK, Circuit Judge : 4 Michelle Chambers, a Jamaican native, petitions for 5 review of a decision by the Bureau of Immigration Appeals ("BIA") 6 ordering her removal pursuant to 8 U.S.C. § 1182(a)(6)(E)(i). In 7 re Michelle A. Chambers , No. A 56 034 092 (B.I.A. Jan. 24, 2006), 8 aff'gNo. A 56 034 092 (Immig. Ct. Buffalo Aug. 26, 2004). She 9 contends that the BIA erred in finding that she knowingly 10 assisted her former boyfriend's attempted illegal entry into the 11 United States and that irrespective of whether she knew he could 12 not legally enter the United States, her actions were 13 insufficient to constitute an affirmative act of assistance 14 within the meaning of the statute. We disagree and therefore 15 deny the petition. 16 BACKGROUND 17 Chambers was, at all relevant times, a lawful permanent 18 resident of the United States residing in Hempstead, Long Island, 19 New York. In February 2003, she traveled by automobile with her 20 brother, a United States citizen, to Ontario, Canada, to visit 21 relatives. In 1990, her former boyfriend, Christopher Woolcock, 22 a resident of Jamaica, had been deported by the United States 23 after being convicted of a drug-related felony. He was also in 24 Ontario at the time of Chambers's visit, allegedly to attend his 25 uncle's wedding. Prior to Chambers's and Woolcock's trips to 26 Ontario, they agreed during the course of a telephone 273

conversation to meet there and return together to the United 1 States. 2 On February 23, 2003, with Chambers's brother driving, 3 she, her brother, and Woolcock traveled from Ontario headed for 4 the United States in an automobile with Georgia license plates. 5 Chambers was in the front passenger seat and Woolcock was in the 6 back seat. At the border crossing, Chambers's brother handed 7 United States customs officials his passport, his sister's travel 8 documents, and a green card issued in Woolcock's name. Because 9 the customs database revealed that Woolcock had previously been 10 deported, the three were referred to immigration offices for 11 further examination. 12 During subsequent questioning by an immigration 13 inspector, Chambers repeatedly said that Woolcock lived in Long 14 Island and that he had traveled to Canada with her and her 15 brother. She also denied having Woolcock's passport. Moments 16 later, however, she retrieved it from underneath a seat cushion 17 in the area where she had been waiting to be interviewed. 18 Following her interview, Chambers gave a sworn statement to the 19 inspector in which she admitted (1) lying about Woolcock's 20 residence; (2) having previously agreed with Woolcock to 21 accompany him at the Canadian border as he tried to enter the 22 United States; (3) that prior to that conversation, "[h]e was 23 going to come some other way through Kennedy airport"; (4) that 24 she thought Woolcock had last been in the United States seven 25 years before; (5) that she was aware he had been deported 261Woolcock, as an alien deported for commission of an

aggravated felon, is permanently ineligible to gain entry. See8 U.S.C. § 1182(a)(9)(A)(i). 4 previously; and (6) that Woolcock was planning to stay with her 1 at her home upon entering the United States. 2 Chambers was charged with knowingly aiding or assisting 3 the illegal entry of another alien under 8 U.S.C. 4 § 1182(a)(6)(E)(i), and given a notice to appear at removal 5 proceedings. That removal hearing was held before Immigration 6 Judge ("IJ") Philip J. Montante, Jr. Chambers testified that she 7 thought Woolcock was permitted to enter the United States because 8 he had shown her a green card (with his "much younger" picture on 9 it) and had told her that an immigration officer at the time of 10 his deportation in 1990 had informed him that he could return to 11 the United States after ten years. 1She again admitted having 12 lied to immigration officers both when she told them that 13 Woolcock was a Long Island resident and when she said that she 14 did not know the whereabouts of Woolcock's passport. And she 15 admitted that she had also lied when she told the immigration 16 inspector during her interview that Woolcock was going to live 17 with her when they returned to Long Island. In fact, Chambers 18 testified, he was to live with his mother. 19 Chambers explained her misstatements by saying she was 20 frightened because she had been told she would be deported. 21 Asked on cross-examination why she had never decided to visit her 222There is no indication that Chambers received compensation

for assisting Woolcock's attempted entry into the United States. 5 family in Canada until the weekend that Woolcock was also in 1 Canada, Chambers answered, "Well, we just decided." 2 2 At the conclusion of the hearing, the IJ issued an oral 3 decision concluding that Chambers had knowingly aided the illegal 4 entry of another alien. The IJ noted Chambers's several 5 misstatements at the Canadian border and found that "she lied to 6 the Court today." In re Michelle A Chambers , A 56 034 092, at 9. 7 Relying on these misstatements and Chambers's sworn statement 8 that she and Woolcock had planned the trip across the border, the 9 IJ concluded that Chambers knew that Woolcock could not legally 10 enter the United States and that her actions "were an attempt to 11 induce and to encourage" Woolcock's illegal entry. Id.at 9-13. 12 The IJ also noted that he perceived Chambers's testimony that 13 Woolcock told her that he could reenter the United States ten 14 years after his deportation to be inconsistent with Chambers's 15 statement to the immigration inspector that Woolcock was last in 16 the United States seven years prior to the 2003 incident at the 17 border. Id.at 11 ("Well, if he had been in the United States 18 seven years ago, doesn't that fly in the face of her statement 19 that [Woolcock] told her allegedly that he could return after 10 20 years and here it was seven years ago that he was in the United 21 States."). 22 On January 24, 2006, the BIA affirmed in a short 23 opinion that closely followed the IJ's reasoning. First, the BIA 246

determined that "if [Chambers] believed that Mr. Woolcock could 1 only reenter the United States after having been absent for 10 2 years after his deportation, [Chambers] would have had knowledge 3 that Mr. Woolcock would not have been able to reenter the United 4 States after the passage of only 7 years." In re Michelle A. 5 Chambers, A 56 034 092, at 2. Second, it concluded that in light 6 of Chambers's numerous admitted and deliberate misrepresentations 7 to customs officials at the border, the IJ did not err in finding 8 Chambers's testimony at the hearing incredible or in "finding 9 that her deception at the border reflected guilty knowledge." 10 Id. 11 Chambers petitions for review. 12 DISCUSSION 13 I. Standard of Review 14 "Since the BIA affirmed the IJ's order in a 'brief 15 opinion [that] closely tracks the IJ's reasoning,' and since our 16 conclusion is the same regardless of which decision we review, 17 'we will consider both the IJ's and the BIA's opinions.'" Lewis 18 v. Gonzales, 481 F.3d 125, 129 (2d Cir. 2007) (quoting Wangchuck 19 v. Dep't of Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006)) 20 (brackets in original). 21 We review the IJ's and BIA's factual findings for 22 substantial evidence, and we consider questions of law and 23 applications of law to fact de novo . Secaida-Rosales v. INS, 331 24 F.3d 297, 306-07 (2d Cir. 2003). The BIA's findings of fact "are 253Aliens 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 conclusive unless any reasonable adjudicator would be compelled 1 to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). The 2 petitioner's knowledge at the time in question is a question of 3 fact. See, e.g. , Farmer v. Brennan, 511 U.S. 825, 842 (1994); 4 Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996); see 5 also Locurto v. Guliani, 447 F.3d 159, 177 n.6 (2d Cir. 2006) 6 ("[T]he defendants' intent is a factual question . . . .")
. 7 II. Chambers Acted Knowingly 8 Section 212(a)(6)(E)(i) of the Immigration and 9 Naturalization Act provides that an alien is not admissible into 10 the United States if he or she "at any time knowingly has 11 encouraged, induced, assisted, abetted, or aided any other alien 12 to enter or try to enter the United States in violation of the 13 law." 8 U.S.C. § 1182(a)(6)(E)(i). 3Chambers argues that the 14 circumstances surrounding her stop at the border compel the 15 conclusion that she did not act "knowingly." Specifically, she 16 contends that her behavior was consistent with the acts of 178

someone who thought she was participating in a legal act: her 1 brother readily handed over Woolcock's green card to the customs 2 officer; no subterfuge in the form of fraudulent documents or 3 hidden compartments was used; and Chambers complied with all of 4 the various officers' requests. She argues further that her 5 misstatements were not only immaterial to the charge of aiding 6 illegal alien entry, but also were later recanted. 7 But Chambers does not contest that she lied at the 8 border regarding Woolcock's residency and the whereabouts of his 9 passport. The nature of these misstatements plainly supports the 10 inference drawn by the IJ and the BIA that Chambers knew Woolcock 11 could not legally enter the United States. For example, her 12 statements that Woolcock lived in Long Island and drove with her 13 and her brother to Canada could reasonably be construed as an 14 attempt by Chambers to convince officials that Woolcock then 15 resided in the United States lawfully. Such an inference would 16 in turn support the corollary inference that Chambers wanted 17 border officials to think Woolcock was a legal resident of the 18 United States because she knew he would otherwise not be 19 permitted to enter in light of his immigration status. These 20 inferences, taken together with Chambers's admissions that she 21 and Woolcock planned the means and method of his return to the 22 United States and that she knew that he had been deported 239

previously, constitute substantial evidence to support the IJ's 1 and BIA's findings that Chambers acted knowingly to assist 2 Woolcock's attempted illegal entry. See Siewe v. Gonzales , 480 3 F.3d 160, 168 (2d Cir. 2007) ("So long as there is a basis in the 4 evidence for a challenged inference, we do not question whether a 5 different inference was available or more likely."); see also id. 6 ("[W]e will reject a deduction made by an IJ only when there is a 7 complete absence of probative facts to support it . . . ."). 8 To be sure, the IJ and BIA appear to have ascribed 9 misplaced significance to the fact that Chambers professed to 10 believe both that Woolcock had been in the United States within 11 the past seven years and that an immigration officer had told 12 Woolcock he could reenter after ten years. These two assertions 13 are not inherently contradictory. Assuming that Chambers had 14 believed Woolcock's assertion that he could reenter the United 15 States ten years after his deportation in 1990, nothing about the 16 statement would compel Chambers to think that the ten-year clock 17 restarted each time Woolcock entered the United States, as the IJ 18 and BIA seemed to believe. Nevertheless, neither the IJ nor the 19 BIA relied solely -- or, in the case of the IJ, substantially -- 20 on this reasoning in finding that Chambers knowingly assisted 21 Woolcock's attempted illegal entry. Instead, each expressly and 22 additionally relied on Chambers's repeated misstatements and the 2310

reasonable inferences drawn therefrom. We therefore conclude 1 that the record contains substantial evidence in support of the 2 agency's finding that Chambers acted with the requisite knowledge 3 and that, were we to remand, the agency would reach the same 4 result even absent the likely error that we have identified. See 5 Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 401 (2d Cir. 6 2005) ("Certainly if the IJ explicitly adopts an alternative and 7 sufficient basis for her determination, no remand is required."); 8

see also Siewe, 480 F.3d at 166-67; Li Zu Guan v. INS, 453 F.3d 9 129, 137-38 (2d Cir. 2006). 10 III. Chambers's Actions Are Sufficient to Constitute 11 Assistance Under Section 212(a)(6)(E)(i) 12 13 As an alternative basis for granting her petition, 14 Chambers argues that her actions do not as a matter of law rise 15 to the requisite affirmative assistance that § 212(a)(6)(E)(i) 16 requires. In support, she cites cases in which divided panels of 17 the Sixth and Ninth Circuits have held that the anti-smuggling 18 statute requires an affirmative act of assistance or 19 encouragement beyond either "openly presenting an alien to border 20 officials with accurate identification and citizenship papers," 21 Tapucu v. Gonzales , 399 F.3d 736, 737 (6th Cir. 2005), or "mere 22 presence in [a] vehicle with knowledge of [a] plan" to smuggle an 2311

alien into the United States, Altamirano v. Gonzales , 427 F.3d 1 586, 596 (9th Cir. 2005). 2 Our Circuit has yet to set forth anything approaching a 3 bright-line test as to the nature of the actions that will or 4 will not suffice to support a finding that an alien has 5 "encouraged, induced, assisted, abetted, or aided" another in 6 illegally entering the United States. 8 U.S.C. 7 § 1182(a)(6)(E)(i). We need not do so here. Chambers did not 8 present agents at the border with accurate information, as did 9 the petitioner in Tapucu, and she was not "mere[ly] presen[t] in 10 the vehicle" in which her brother drove Woolcock across the 11 border like the petitioner in Altamirano . She does not qualify 12 as an innocent bystander on any reading of the facts. The fact 13 that no fraudulent documents were used and no payments by 14 Woolcock were made does not overcome the ample evidence to 15 support the IJ's and BIA's findings that Chambers personally 16 arranged to provide transportation for Woolcock into the United 17 States and purposefully deceived customs officials at the time of 18 his attempted entry. Chambers traveled to Canada with the pre19 planned intent to bring Woolcock across the border in her car 20 upon her return, and she actively sought to mislead customs 21 officials about Woolcock's residency status in a way that, if 22 believed, would have made it easier for him to enter the United 2312

States. There is thus sufficient evidence from which the IJ and 1 the BIA could conclude that she assisted, abetted, or aided 2 Woolcock in his attempt illegally to enter the United States. 3 Section 212(a)(6)(E)(i) requires no more. 4 CONCLUSION 5 For the foregoing reasons, Chambers's petition for 6 review is denied. 7

813 Pogue, Judge dissenting: 1 The majority opinion correctly states that the BIA’s 2 conclusion that Ms. Chambers violated the alien-smuggling statute 3 is based on the agency’s finding that Ms. Chambers had knowledge 4 of Woolcock’s illegal scheme. The majority opinion also 5 acknowledges – and I agree - that the BIA improperly concluded 6 that Ms. Chambers must have known that Woolcock’s reentry was 7 illegal based on her stated belief that he had been in the 8 country within the last seven years. As the majority notes, if 9 Ms. Chambers believed that Woolcock could reenter the country any 10 time after ten years had passed since his 1990 deportation, 11 whether Woolcock had previously violated the imagined ten-year 12 period says nothing about what Ms. Chambers necessarily believed 13 or knew regarding the propriety of his entry in 2003. 14 I depart from the majority’s opinion, however, 15 because the BIA’s decision also makes it clear that the agency’s 16 erroneous finding - that Ms. Chambers had knowledge of Woolcock’s 17 possible prior reentry - was the major ground for its decision. 18 While the BIA also “found no clear error” in the IJ’s finding 19 that Ms. Chambers’ “deception at the border reflected guilty 20 knowledge,” the BIA did not state that Ms. Chambers’ 21 misrepresentations provided an alternative basis for its 22 decision. Based on this record, therefore, I believe we should 23 review the decision on its stated grounds. SEC v. Chenery Corp. , 24 332 U.S. 194, 196 (1947) (“a reviewing court, in dealing with a 25 determination or judgment which an administrative agency alone is 2614

authorized to make, must judge the propriety of such action 1 solely by the grounds invoked by the agency.”); see also Lin v. 2 U.S. Dep’t of Justice, 453 F.3d 99, 106 (2d Cir. 2006). 3 Moreover, Ms. Chambers corrected or recanted each 4 of her misrepresentations during the customs investigation, and 5 ultimately provided correct information at the border during the 6 investigation. Accordingly, it seems to me that this case is 7 more like the case cited by the majority, Li Zu Guan v. INS, 453 8 F. 3d 129 (2d Cir. 2006), where the court remanded because it 9 could not be “certain that the errors below did not play a role 10 in the decision to deny relief.” Id. at 141. As in Li Zu, the 11 agency’s error here played at least “a role in the decision to 12 deny relief.” Id. Furthermore, as the court in Tapucu 13 explained, there is nothing “illegal about driving a known 14 illegal alien with admittedly authentic papers to the American 15 border for examination by the border guards.” Tapucu v. 16 Gonzales, 399 F.3d 736, 739-40 (6thCir. 2005); see also Doe v. 17 Gonzales, 484 F.3d 445, 449-50 (7 thCir. 2007) (noting that 18 presence at the scene of persecution may not constitute 19 “assistance” in the absence of support or encouragement, and 20 further noting that aiding in a cover-up without advance 21 participation in planning such a cover-up also does not 22 constitute assistance in the actual scheme). As a result, I 23 cannot say with confidence that the BIA would have reached the 24 same result in the absence of error, and it seems to me that the 25 BIA should be given the opportunity to weigh the exculpatory 2615

evidence and make an initial error-free determination as to 1 whether relief is appropriate. 2 Finally, in order to support a conclusion that Ms. 3 Chambers actually assisted in an illegal entry in violation of 4 Section 212(a)(6)(E)(i), the majority relies on a hypothetical 5 finding – that “Chambers traveled to Canada with the pre-planned 6 intent to bring Woolcock across the border in her car upon her 7 return, and she actively sought to mislead customs officials 8 about Woolcock’s residency status in a way that, if believed, 9 would have made it easier for him to enter the United States.” 10 To find a violation of the statute, however, requires more than a 11 hypothetical finding that the petitioner’s actions “would have 12 made it easier;” it requires that the actions actually assisted, 13 abetted or aided. Perhaps more importantly, the agency made no 14 such finding. Rather, the BIA made the more nuanced and limited 15 conclusion, upon which it did not rely to find a violation of the 16 statute, that Ms. Chambers “arranged to meet with Mr. Woolcock, 17 an alien previously deported from the United States as an 18 aggravated felon, at her family's home in Canada so that he could 19 travel to the United States with her and her brother by car.” In 20 re Michelle A. Chambers , A 56 034 092, at 1-2. Similarly, with 21 regard to the majority’s claim of deception, the agency found 22 only that “... despite the respondent's alleged belief that the 23 [sic] Mr. Woolcock could legally enter the United States, the 24 record reflects that the respondent made several 25 misrepresentations to the immigration officials in secondary 2616

inspection . . . . Specifically . . . [Chambers] told [the Agent] 1 that all three of the passengers in the car had traveled to 2 Canada together and that they all lived together in Long Island, 3 New York.” Id.at 2. As noted above, Ms. Chambers later 4 corrected or recanted these statements and ultimately provided 5 correct information at the border during the investigation. It 6 does not seem to me that it is our role to expand the agency’s 7 findings in order to support its conclusion. 8