FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NEFTALI URZUA COVARRUBIAS, 

Petitioner, No. 03-74661

v. Agency No.  A70-912-560 ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 7, 2006—Pasadena, California

Filed May 29, 2007

Before: Harry Pregerson, Barry G. Silverman, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman;

Dissent by Judge Pregerson

6351
COUNSEL

Xavier Rosas, Law Office of Enrique Arevalo, Pasadena, California, for the petitioner. 

URZUA v. GONZALES 6353
John C. Cunningham, Senior Litigation Counsel, Office of

Immigration Litigation, Civil Division, Washington, D.C., for

the respondent. 

OPINION

TALLMAN, Circuit Judge: 

Neftali Urzua Covarrubias (“Urzua”) petitions for review

of an order of the Board of Immigration Appeals (“BIA”) dismissing Urzua’s appeal from the denial of his application for

suspension of deportation under 8 U.S.C. § 1254(a) (repealed

1996).1 The BIA agreed with the Immigration Judge (“IJ”)

and found Urzua statutorily barred from showing good moral

character, see 8 U.S.C. § 1101(f)(3), because Urzua “knowingly . . . encouraged, induced, assisted, abetted[ ] or aided”

his brother in unlawfully entering the United States under 8

U.S.C. § 1182(a)(6)(E)(i). We cannot say that the record compels a contrary result as substantial evidence supports the

BIA’s factual finding. See INS v. Elias-Zacarias, 502 U.S.

478, 481 n.1 (1992). We therefore deny the petition for

review. 

1The Immigration & Naturalization Service (“INS”) initiated deportation proceedings on January 24, 1997. Because this case is governed by

the transitional rules of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), see Kalaw v. INS, 133 F.3d 1147,

1150 (9th Cir. 1997), Urzua could pursue suspension of deportation under

pre-IIRIRA law, see Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 376-77

(9th Cir. 2003) (en banc). To qualify for suspension of deportation, Urzua

must show: (1) physical presence in the United States for a continuous

period of at least seven years; (2) good moral character for the duration

of that period; and (3) the deportation would result in extreme hardship to

the alien or spouse, parent, or child who is a citizen or lawful permanent

resident of the United States. 8 U.S.C. § 1254(a)(1). 

6354 URZUA v. GONZALES
I

Urzua, a native and citizen of Mexico, entered the United

States without inspection on August 30, 1989. He filed an

application for asylum on May 3, 1994. During his interview

with an INS asylum officer on January 10, 1997, Urzua

admitted to making several incorrect statements in his asylum

application. On January 24, 1997, the INS filed an order to

show cause charging Urzua as being deportable under 8

U.S.C. § 1251(a)(1)(B) (1996). 

On March 26, 1997, Urzua conceded deportability through

counsel. He then withdrew his application for asylum and

indicated that he would seek suspension of deportation under

§ 1254(a), or, alternatively, voluntary departure under

§ 1254(e). He designated Mexico as the country of deportation. 

During the merits hearing held on October 26, 2000, INS

counsel questioned Urzua about his brother, Louis. In

response, Urzua made several damaging admissions: 

Q: How about your, how about your brother,

Louis, where does he live? 

A: Louis lives in Mexico with my parents. 

Q: Does Louis work? 

A: Over there, yes, he works in construction. 

Q: Do you support Louis? 

A: He was here last year and because of his immigration status, he was only able to work maybe

one or two days per week. He would either do

yards or anyone that would ask him to come

and help them out, and he was with me for

URZUA v. GONZALES 6355
about eight or nine months, during which time

I supported him. 

Q: And h[e] was in an illegal status when he was

staying with you? 

A: Yes. 

Q: When did he enter the United States? 

A: About in March. 

Q: Of which year? 

A: 1999. 

Q: And when he entered, how did he enter? 

A: He came through [Nogales] as an illegal like

many of us do when we cross the border. 

Q: Well, did you know he was coming to stay with

you? 

A: Well, yes, he did, he told us he was coming and

we helped him out, paying his crossing. 

Q: Could you explain exactly what arrangements

you made to pay his crossing? 

IJ to URZUA: 

Q: Where did [Louis] come from? 

A: He came from (indiscernible) Jalisco, Mexico.

Q: And where did he enter the United States? 

6356 URZUA v. GONZALES
A: Nogales, Mexico, crossing into Nogales, Arizona. 

Q: And how did he get to Nogales, did he drive,

did he take a train, what did he do? 

A: A person that lives here had a station wagon or

pickup truck and he went down there, and when

he came back, he gave him a ride to Nogales.

Q: And how did he get from Nogales to Los Angeles? 

A: We paid a person to cross the border, to cross

him across the border and drive him to Los

Angeles. 

. . . 

INS counsel to Urzua: 

Q: How much money did you pay the person to

cross him across the border into Nogales? 

A: $1200. 

. . . 

Q: How many times have you helped your brother

Louis enter the United States illegally? 

A: That was the only time. 

Soon after listening to Urzua’s testimony, the IJ concluded

the hearing by warning Urzua’s counsel that “[she thought

Urzua], unfortunately, ha[d] a statutory bar[ ] to good moral

character.” The IJ elaborated further on the effect of Urzua’s

sworn admissions, stating, “I do believe that [Urzua] is statuURZUA v. GONZALES 6357
torily ineligible to establish good moral character because of

having helped his brother enter the United States illegally. I

think part of the problem is that he, [Urzua], is such a[n] honest person, that he just volunteered a little too much information.” The IJ then reset the hearing to allow Urzua and his

counsel to reconsider the issue. The IJ asked counsel to be

prepared to discuss the statutory bar at the next hearing. 

On April 26, 2002, the IJ held a second hearing on the merits. During this hearing, Urzua now testified that he had never

asked his brother to come to the United States and that he did

not know of his brother’s plans until after his mother contacted him by telephone. Urzua stated that the day after he

spoke with his mother, Louis called him from Nogales to ask

for money. Urzua now claimed he did not know whether

Louis called from the Mexican or United States side of the

border. Louis asked Urzua for $1200, and although his

brother did not specify why, Urzua stated that he believed

Louis needed the money to pay the smuggler who helped him

cross the border. 

Urzua modified his prior sworn testimony to claim that he

did not know the smuggler and that he made no arrangements

to have the smuggler help Louis cross the border. Urzua testified that after Louis called him from Nogales, Urzua had

arranged to get the money from other family members in the

United States. Louis then called from a Wal-Mart parking lot

on the United States side of the border to tell Urzua he had

arrived. Urzua testified that, at this point, the smuggler took

the phone from Louis and told Urzua to bring the money to

the Wal-Mart parking lot alone. Urzua stated that he complied

with the smuggler’s request. He testified that, once he got out

of his car in the parking lot, the smuggler approached him and

asked if he was Louis’s brother. Urzua responded, “Yes,” but

told the smuggler that he would not give him the money until

he saw his brother. Urzua stated that, once he saw Louis, he

handed Louis the money, and Louis then turned and gave the

money to the smuggler. Although Urzua claimed to have

6358 URZUA v. GONZALES
never met the smuggler before, he testified that he believed

the unidentified individual was “[t]he person that had been

helping [Louis] cross.” 

Upon further questioning, Urzua admitted that he knew

Louis had decided to come to the United States three to five

months prior to the actual smuggling incident. However,

Urzua testified that he told Louis to wait to come to the

United States. Urzua explained his brother’s decision to

ignore his earlier advice and come to the United States prevented Urzua from refusing to give Louis the money when his

brother called from Nogales. “[Louis] had already made the

decision to [come to the United States,] and one way or the

other, he was going to do it.” Moreover, Urzua testified that

he feared that his brother would be in danger if he did not provide the money to the smuggler. Although he had no basis to

question the smuggler’s intent, Urzua testified that “[he]

could have killed someone, killed the boy. I was afraid.” 

In a written decision and order, the IJ denied Urzua’s application for suspension of deportation and his application for

voluntary departure. Because both parties agreed that Urzua

had established the requisite period of continuous physical

presence, and that his deportation would result in extreme

hardship to himself and his United States citizen child, the

sole remaining issue was whether Urzua could establish good

moral character. The IJ concluded that, because Urzua had

knowingly encouraged, induced, assisted, abetted or aided in

his brother’s unlawful entry into the United States, Urzua was

precluded under § 1101(f)(3) from establishing the requisite

good moral character. 

The IJ found that substantial facts in the record demonstrated that Urzua knowingly engaged in the alien smuggling

scheme. “[Urzua] testified that he spoke to his brother telephonically several months before the smuggling incident,”

and, “[a]t that time, his brother had indicated his desire to

come to the United States.” Although Urzua “strongly

URZUA v. GONZALES 6359
opposed his brother’s wishes and advised him not to travel

illegally to the United States,” Urzua collected the $1200 fee,

believing that the money would go to the person that was

helping Louis cross the border. The IJ concluded that,

“[w]hen examined cumulatively[,] these facts demonstrate

that a reasonable person in [Urzua’s] circumstances would

conclude that the brother was attempting an illegal entry into

the United States and [Urzua] was aware that the money was

to be used for the smuggling fee.” Moreover, although Urzua

testified that “he felt obligated to provide the smuggling fee”

out of fear for his brother’s safety, the IJ concluded that she

was “nonetheless . . . compelled to find that [Urzua] played

a role in assisting with the illegal entry of another” because

“[Urzua] collected the smuggling fee from his siblings and

agreed to meet his brother to provide him with the fee.” 

In a per curiam order filed November 20, 2003, the BIA

affirmed the IJ and dismissed Urzua’s appeal. Noting that

Urzua had the burden to show good moral character, the BIA

relied, in part, on that fact that when Urzua agreed to pay the

$1200 fee he was not concerned with whether Louis had

already crossed the border. “[Urzua] was apparently willing to

pay the smuggler in either event.” Furthermore, “[Urzua]

clearly knew his brother beforehand, and knew that his

brother wished to cross the border illegally, as [Urzua] himself had done some time ago.” And “[Urzua] admittedly

arranged payment to the smuggler[,] . . . collected the needed

money from siblings[,] . . . agreed to a meeting place with the

smuggler and then presented the money.” Urzua then “transported [Louis] from that meeting place to his own home

where the brother stayed for months.” 

The BIA also addressed Urzua’s argument that alien

smuggling—as defined by § 1182(a)(6)(E)(i)—ends once the

alien crosses the border. Citing United States v. Angwin, 271

F.3d 786 (9th Cir. 2001), overruled in United States v. Lopez,

No. 05-50415, 2007 WL 1309689 (9th Cir. May 7, 2007) (en

banc), and 8 U.S.C. § 1234(a)(1)(A)(v)(i), the BIA concluded

6360 URZUA v. GONZALES
that “it does not necessarily matter here whether the brother

had actually crossed into the United States when [Urzua] first

agreed to pay the smuggler.” Therefore, notwithstanding the

IJ’s “reasonable person” language, the BIA found that Urzua

knowingly encouraged, induced, assisted, abetted or aided

Louis to unlawfully enter the United States. 

II

We have jurisdiction to review the BIA’s denial of eligibility for suspension of deportation based on a finding that petitioner is statutorily barred from showing good moral

character. See 8 U.S.C. § 1105a(a) (Supp. II 1996), amended

by IIRIRA § 309(c)(4)(E), 110 Stat. 3009-626; Kalaw v. INS,

133 F.3d 1147, 1151 (9th Cir. 1997). Whether Urzua falls into

one of the per se categories listed in § 1101(f) presents a question of fact that we review for substantial evidence. Id. 

Urzua carries the burden to prove that he meets the statutory requirements for suspension of deportation and that he

merits a favorable exercise of discretion. Ordonez v. INS, 137

F.3d 1120, 1123 (9th Cir. 1998). “To reverse the BIA[‘s] finding[,] we [would have to] find that the evidence not only supports that conclusion, but compels it.” Elias-Zacarias, 502

U.S. at 481 n.1. 

III

On appeal, Urzua contends that substantial evidence does

not support the BIA’s finding that he “knowingly” aided or

abetted Louis in unlawfully entering the United States

because, at the time he agreed to give Louis the $1200 smuggling fee, he did not know whether his brother had already

crossed the border and entered the United States, and one cannot aid or abet in a completed offense.2

 Urzua bases his argu2Urzua contends that the IJ failed to properly define the term “knowingly,” and that this is evidenced by the fact that the IJ found that “a reasonURZUA v. GONZALES 6361
ment on the premise that alien smuggling ends once the alien

crosses the border. That is not the case. In light of our recent

en banc decision in United States v. Lopez, No. 05-50415,

2007 WL 1309689 (9th Cir. May 7, 2007), where we

addressed the criminal alien smuggling statute in 8 U.S.C.

§ 1324(a)(2) (2000), we now hold that alien smuggling as

defined in 8 U.S.C. § 1182(a)(6)(E)(i) also continues until the

initial transporter who brings the aliens to the United States

ceases to transport the aliens. 

[1] Lopez declared that the “brings to” offense in

§ 1324(a)(2)3 is a continuing offense that does not end once

each element of the crime has occurred. Lopez, 2007 WL

1309689, at *1. We reasoned that the “brings to” offense

“proscribes an act that is not a static or an instantaneous

occurrence, geographically or temporally.” Id., at *5. It “requires transporting [aliens] over a period of time and distance

and thus does not occur at one particular moment or location.”

Id. Moreover, the federal venue statute, 18 U.S.C. § 3237

(2000), provides that 

[a]ny offense involving . . . transportation in interstate or foreign commerce, or the importation of an

object or person into the United States is a continuing offense and . . . may be inquired of and prosecuted in any district from, through, or into which

such commerce . . . or imported object or person

moves. 

able person in [Urzua’s] circumstances would conclude that the brother

was attempting an illegal entry into the United States and [Urzua] was

aware that the money was to be used for the smuggling fee.” However,

when the BIA conducts a de novo review and issues its own decision, we

review the BIA’s decision rather than the IJ’s. Hernandez-Guadarrama v.

Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005). 

3

“Any person who, knowing or in reckless disregard of the fact that an

alien had not received prior official authorization to come to . . . the

United States, brings to or attempts to bring to the United States in any

manner whatsoever” is guilty of the “brings to” offense. Id. 

6362 URZUA v. GONZALES
In other words, any offense involving the importation of a

person or object into the United States is a continuing offense

for venue purposes. See Lopez, 2007 WL 1309689, at *6. 

[2] We have no reason to define the alien smuggling provision set forth in § 1182(a)(6)(E)(i) differently from its criminal counterpart in § 1324(a)(2). As we stated in HernandezGuadarrama v. Ashcroft, 394 F.3d 674 (9th Cir. 2005),4

 Congress intended the civil alien smuggling statute to apply to a

broad range of conduct.5Id. at 679. There, we held that “[a]n

individual may knowingly encourage, induce, assist, abet, or

aid with illegal entry, even if he did not personally hire the

smuggler and even if he is not present at the point of illegal

entry.” Id.; see also Soriano v. Gonzales, 2007 WL 1020462,

*2 (5th Cir. April 5, 2007) (citing Hernandez-Guadarrama

and holding that an alien is inadmissible under § 1182 “regardless of whether the assisting individual was present at the

border crossing”).6 And, similar to the criminal “brings to”

offense, the civil alien smuggling provision in § 1182 does

not describe acts that constitute static or instantaneous occurrences. Rather, these are acts that occur over a period of time

and distance, and do not occur at one particular moment or

location. See Lopez, 2007 WL 1309689, at *5. Therefore, we

4Hernandez-Guardarrama discussed 8 U.S.C. § 1227(a)(1)(E)(i) rather

than § 1182(a)(6)(E)(i). However, as the Supreme Court has made clear,

identical words used in different parts of the same act are intended to have

the same meaning. Sullivan v. Stroop, 496 U.S. 478, 484 (1990). 

5Under § 1227(a)(1)(E)(i), “[a]ny alien who . . . 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 deportable.” 

6There is no basis to distinguish these two statutes through their mens

rea requirement. See 8 U.S.C. § 1324(a)(2) (requiring a mens rea of

“knowing or in reckless disregard”); Id. § 1182(a)(6)(E)(i) (stating a mens

rea requirement of “knowingly”). We are concerned with the scope of the

alien smuggling provisions, not with an offender’s mental state when committing the offense. Our holding that § 1182(a)(6)(E)(i) is a continuing

offense does not affect the civil provision’s mens rea requirement of

“knowingly.” 

URZUA v. GONZALES 6363
hold here that alien smuggling under § 1182 continues until

the initial transporter ceases to transport the alien. 

[3] Given the broad scope of the statute, we simply cannot

say that the evidence in this record compels a result contrary

to that reached by the IJ and the BIA. During the October 26,

2000, hearing, Urzua admitted that he knew his brother had

planned on crossing the border illegally, and that, along with

other members of his family, he had “helped [Louis] out, paying his crossing.” Even if Urzua had not agreed to pay the

smuggler until after his brother had crossed the border, the

evidence shows that Urzua agreed to pay before the “initial

transporter” ceased transporting Louis. Therefore, Urzua’s

participation took place prior to the completion of the alien

smuggling venture. Moreover, by collecting the needed

money from his siblings and arranging payment to the smuggler, Urzua knowingly aided and abetted the venture by providing “an affirmative act of help, assistance, or

encouragement” in his brother’s effort to illegally enter the

United States. See Altamirano v. Gonzales, 427 F.3d 586, 592

(9th Cir. 2005); see also Khourassany v. INS, 208 F.3d 1096,

1101 (9th Cir. 2000) (upholding the IJ’s and BIA’s finding

that petitioner fell within the alien smuggler provision

because “he admitted that in 1995 he paid a smuggler to bring

his wife and child into the United States illegally from Mexico”). 

IV

[4] The BIA did not abuse its discretion by failing to comply with the procedural safeguards set forth in Matter of J, 2

I&N Dec. 286, 1945 WL 5557 (BIA 1945), for obtaining

admissions. See Pazcoguin v. Radcliffe, 292 F.3d 1209, 1215

(9th Cir. 2002) (stating that we review the BIA’s interpretation of its case law for an abuse of discretion). Those procedural safeguards “[were] adopted for the purpose of insuring

that the alien would receive fair play and to preclude any possible later claim . . . that he had been unwittingly entrapped

6364 URZUA v. GONZALES
into admitting the commission of a crime involving moral turpitude.” Matter of K, 7 I&N Dec. 594, 597, 1957 WL 10581

(BIA 1957). Here, Urzua was being questioned under oath, in

the presence of his attorney. Moreover, the BIA did not find

that Urzua had admitted to committing acts constituting the

essential elements of a crime involving moral turpitude.

Rather, the BIA concluded that Urzua was statutorily ineligible to prove good moral character because he had engaged in

alien smuggling under § 1182(a)(6)(E)(i). The record supports

that factual finding. 

PETITION DENIED.

PREGERSON, Circuit Judge, Dissenting: 

I disagree with the majority’s characterization of the facts

in this case. The evidence in the record compels a result contrary to the BIA’s holding. Accordingly, I dissent. 

Urzua is a citizen of Mexico. He has been residing in the

United States since he entered the country illegally in 1989.

The INS commenced deportation proceedings against Urzua

in 1997. Urzua conceded deportability, but applied for suspension of deportation. To qualify for the discretionary relief

of suspension of deportation Urzua must (1) have been physically present in the United States for a continuous period of

seven years, (2) be a person of good moral character, and (3)

demonstrate that deportation would result in extreme hardship

to himself or to his U.S. citizen son. 8 U.S.C. § 1254(a)(1).1

1Under the Illegal Immigration Reform and Immigrant Responsibility

Act (IIRIRA), Congress eliminated suspension of deportation, INA

§ 212(c). Congress replaced it with “cancellation of removal,” INA

§ 240A; 8 U.S.C. § 1229b , which retained similar standards for relief. See

Pablo v. INS, 72 F.3d 110, 113 (9th Cir. 1995). 

URZUA v. GONZALES 6365
There is no dispute that Urzua has met the requirements of

continuous presence and extreme hardship to himself and to

his son. Urzua has been in the United States for almost eighteen years. During this time, Urzua has worked for the same

employer and has paid taxes. He learned English and is active

in his church and in his community. He and his brother own

a house together. Urzua coaches a children’s soccer team, and

he is very close to his extensive family residing in California,

including four siblings, aunts, uncles, nieces, nephews, and

cousins. 

Urzua also plays an important role in the life of his elevenyear-old U.S.-born citizen son whom he supports emotionally

and financially. Although his son does not live with him,

Urzua spends part of nearly every day with his son, provides

him with medical insurance, and pays child support. 

Despite Urzua’s upstanding background, the BIA found

Urzua ineligible for suspension of deportation on the grounds

that Urzua lacks “good moral character.” Under section

101(f)(3) of the Immigration and Nationality Act, a person

lacks good moral character if that person is described in section 212(a)(6)(E). That section provides, in part, that an alien

who “knowingly has encouraged, induced, assisted, abetted or

aided any other alien to enter or to try to enter the United

States in violation of the law is inadmissible.” 8 U.S.C.

§ 1182(a)(6)(E) 

The BIA held that section 212(a)(6)(E) applied to Urzua.

The BIA held that the evidence demonstrated that Urzua “executed a step-by-step plan to help his brother illegally enter

. . . the United States.” This conclusion is not supported by the

evidence. 

The BIA relied on Matter of I-M-, 7 I&N Dec. 389 (BIA

1957), in determining that Urzua had executed a step-by-step

plan to help his brother Louis enter the United States illegally.

In Matter of I-M-, the BIA found that a person who drove ille6366 URZUA v. GONZALES
gal aliens (who were already in the United States) to Los

Angeles was not subject to deportation. The transporter did

not know the aliens beforehand, and the transportation was

not prearranged. Matter of I-M-, 7 I&N at 391. The BIA in

Matter of I-M- explained,

in all cases where we have ordered deportation

[based on alien smuggling,] the record shows that

the respondent knew the assisted aliens beforehand,

or contacted them while they were still in Mexico, or

knew a go-between who was arranging their entry

and there was some conversation or prearrangement

prior to the assisted alien’s entry.

Id.

Guided by the above statement from Matter of I-M-, the

BIA held Urzua to be an alien smuggler. The BIA explained

that Urzua (1) knew his brother Louis beforehand, (2) knew

Louis wished to cross illegally, (3) discussed illegal crossing

with Louis, (4) arranged payment to the smuggler, (5) agreed

to a meeting place with the smuggler, and (6) presented the

money to the smuggler. 

The BIA’s characterization of the facts is not supported by

the evidence. “Absent an explicit adverse credibility finding,

a witness’s testimony must be accepted as true.” LopezAlvarado v. Ashcroft, 381 F.3d 847, 851 (9th Cir. 2004).2

Although Urzua, of course, knew his brother beforehand and

knew that his brother wished to cross illegally, Urzua vehemently discouraged his brother from crossing. Urzua did not

offer assistance with the illegal crossing; in fact, Urzua told

Louis not to do it. Urzua did not know that Louis was going

to go against his advice and enter illegally until Louis was

already on his way to Los Angeles. Urzua’s upset mother cal2Not only did the IJ find Urzua credible, but she praised him for his

honesty. 

URZUA v. GONZALES 6367
led him from Jalisco, Mexico stating that Louis had decided

to travel to the United States illegally and was on his way to

Urzua. She expressed her worry over Louis. 

Louis later called Urzua from “Nogales” stating he was on

his way to Urzua and asking to borrow $1,200. Urzua did not

ask Louis what the money was for or how Louis was coming

to Los Angeles. Additionally, Urzua did not determine

whether Louis was in Nogales, Mexico or Nogales, Arizona.

Urzua was worried for his brother’s safety and agreed to lend

him the money he requested. Urzua pooled some of his

money with money from another sibling. Although Urzua suspected that some of the money might go to a smuggler, this

was not “arranging” payment. 

As for the meeting place and presentation of money, the

circumstances do not demonstrate that Urzua planned or coordinated a step-by-step program to help his brother enter the

United States illegally. When Louis reached Los Angeles, he

called Urzua and announced “I’m Here.” Urzua asked Louis

where he was. At that point, a stranger took the phone and

told Urzua that his brother was in the parking lot at a nearby

Wal-Mart. That stranger also told Urzua that he should bring

the money for his brother to the Wal-Mart and he should go

alone. Urzua went to the Wal-Mart. He parked his car and

then looked around for his brother, whom he did not see. A

stranger approached Urzua and asked if he was Louis’s

brother. Urzua asked to see his brother. Louis then got out of

a car. After ensuring that Louis was unharmed, Urzua gave

the money to Louis who then used the money to pay the

stranger. Urzua and Louis then left. Urzua never confirmed

that the stranger was a smuggler. Urzua had not seen him

before, and he never saw him again. Urzua did not know the

man, and he never even learned the stranger’s name. He did

not make any arrangements with the smuggler. Urzua’s only

interaction with the smuggler was to learn his brother’s location in Los Angeles. 

6368 URZUA v. GONZALES
Urzua did not plan or execute the smuggling of his brother.

Urzua testified that at all times, he was solely concerned for

Louis’s safety. This is not evidence of Urzua executing a

“step-by-step plan” to smuggle Louis into the United States.

This is an older brother protecting a younger brother whom

the family believed to be in danger. 

Urzua’s actions further do not constitute aiding and abetting alien smuggling because the actions occurred after Louis

had entered the country. By the time Urzua loaned Louis

money, Louis was in Los Angeles. It is not even clear whether

Louis was in the United States or Mexico when Urzua agreed

over the telephone to loan Louis money. 

In United States v. Lopez, ___ F.3d ___, 2007 WL 1309689

(9th Cir. 2007) (en banc), we recently held that the offense of

smuggling an alien “to” the United States terminates when the

person transporting the alien brings the alien to a destination

within the United States. From the record, we can not determine when the crime was complete. If Louis called Urzua

from Nogales, Arizona, the crime of alien smuggling was

already completed at the time Urzua agreed to lend his brother

money. In such a situation, Urzua would, at most, be guilty

of accessory after the fact to alien transportation. If a smuggler transported Louis from Nogales, Mexico to the Wal-Mart

parking lot in Los Angeles, the crime was completed upon

reaching the parking lot — before Louis called his brother to

come meet him. 

Urzua’s agreement to lend his brother money is insufficient

to demonstrate that Urzua aided and abetted alien smuggling.

Regardless of which side of the border Louis was standing on

when asking his brother to lend him $1200, there is no substantial evidence that Urzua “willingly associated himself

with the venture and participated therein as something he

wished to bring about.” United States v. Zemek, 634 F.2d

1159, 1174 (9th Cir. 1980) (interpreting the federal aiding and

abetting statute). The Ninth Circuit Model Criminal Jury

URZUA v. GONZALES 6369
Instructions explain that to be found guilty of aiding and abetting, a defendant must have “knowingly and intentionally”

assisted in committing each element of the principal’s

offense. Ninth Circuit Model Criminal Jury Instructions § 5.1

(2005); see also Lopez, 2007 WL 1309689 at *11. The evidence here does not indicate that Urzua assisted in the formation of the underlying plan or in the commission of the act.

Urzua reluctantly agreed to lend his brother money out of

concern for his brother’s safety. He did so despite the fact that

he suspected the money would be used to pay an alien smuggler. Lending someone money, even where you suspect it will

be used to pay for illegal activities, does not (without more)

rise to the level of aiding and abetting the principal’s crime.

This is especially true where the money is lent after completion of the crime to pay off a debt. Would we consider loaning

a brother money to pay off an illegal gambling debt to be aiding and abetting in the crime of illegal gambling? At most,

such circumstances describe actions akin to accessory after

the fact. 

As Urzua testified, there was nothing he was able to say or

do to prevent his brother’s illegal entry. Urzua did not arrange

for Louis to enter the country illegally. He did not coordinate

with a smuggler or with Louis. He did not execute a step-bystep plan. Indeed, there is no evidence that Urzua knew anything of his brother’s plans before Louis called begging for

money. For the foregoing reasons, I dissent. I would grant

Urzua’s petition.

6370 URZUA v. GONZALES