*Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 95-60456

Summary Calendar

___________________________

CUTBERTO IBARRA-PINEDO,

Petitioner,

VERSUS

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

___________________________________________________

Petition for Review of 

Order of Immigration and Naturalization Service 

____________________________________________________

June 14, 1996

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

Cutberto Ibarra-Pinedo petitions for review of the Board of

Immigration Appeals (BIA) order finding him deportable and denying

his requests for suspension of deportation. We deny the petition.

I.

Petitioner, a Mexican citizen, was granted lawful permanent

residence status in the United States in 1990. He lives in Lufkin,

Texas with his family and works at a local factory. Two of his

children are United States citizens but his wife Amelia and his

daughter Griselda are not. However, Amelia and Griselda have
2

obtained permission to live in the United States through the Family

Fairness Program. See Section 301(a) of the Immigration Act of

1990. 

On January, 16, 1993, a Saturday, Ibarra traveled from Lufkin

to the border and crossed into Mexico. He intended to return the

next day with his daughter, a United States citizen, so that she

could attend school on Monday. Ibarra’s daughter and his wife had

been in Mexico for fifteen days, tending to his wife's father who

was dying. 

Upon arriving in Mexico, Ibarra learned that his wife had

arranged to illegally re-enter the United States that night and had

found two men to help her across the Rio Grande. Apparently, she

had left the United States too suddenly to make arrangements for a

legal return. When Ibarra saw that the men she had found to

accompany her were drunk, he tried to dissuade her from going with

them. But she refused to stay in Mexico alone. Petitioner

testified that he then decided to help her across the river himself

because he was afraid of what the men might do to her. Leaving his

daughter in Mexico, Ibarra crossed the river with his wife and was

arrested by border patrol agents on January 17, 1993.

 On January 18, 1993, the Immigration and Naturalization

Service (INS) issued an Order to Show Cause why Petitioner should

not be deported as an alien who had entered the United States

without inspection, a violation of 8 U.S.C. § 1251(a)(1)(b). The

Immigration Judge (IJ) found that Ibarra had entered illegally by

not presenting himself for inspection and that he was deportable on

this charge. She also determined that Petitioner was entitled to
 

1 Having concluded that Ibarra was statutorily ineligible

for suspension of deportation, the IJ declined to address whether

the Petitioner had made an "entry" in violation of the Immigration

and Nationality Act.

3

neither suspension of deportation, under 8 U.S.C. § 1254(a), nor

voluntary departure, under § 1254(e), because he had assisted his

wife in entering the United States illegally.1 He therefore lacked

the “good moral character” required under both provisions. 

Ibarra appealed to the Board of Immigration Appeals (BIA). He

argued that he had not made an "entry" because his departure was

brief, casual, and innocent and did not interrupt his permanent

residence. He further argued that the IJ's determination that he

had knowingly aided his wife in illegally entering the United

States was not supported by clear and convincing evidence.

Finally, even if he had entered the United States and had assisted

his wife in doing so, Ibarra contended that, under 8 U.S.C. §

1182(d)(11), he was eligible for a waiver of the application of §

1182(a)(6)(E)(I), the provision rendering him excludable for alien

smuggling. This waiver, in turn, functioned as a waiver of the

finding of lack of good moral character under § 1101(f)(3).

Therefore, argued Ibarra, he was statutorily eligible for

suspension of deportation.

The BIA dismissed Ibarra's appeal. It determined that Ibarra

had made an illegal entry within the meaning of § 1101(a)(3)

because, by aiding his wife to illegally enter the United States,

he had meaningfully interrupted his permanent residence. Moreover,

by meaningfully interrupting his residence, Petitioner could not

establish the seven years of continuous physical presence in the
4

United States required to qualify for statutory suspension of

deportation under § 1254(a). Finally, the BIA concluded that

Ibarra was not eligible for a § 1254(e) voluntary departure because

he had admitted to helping his wife illegally cross the Rio Grande.

The BIA rejected Ibarra's argument that a waiver under §

1182(d)(11) applied to waive a finding of lack of good moral

character under § 1101(f).

We review the BIA's factual conclusions for substantial

evidence and will affirm its decision unless the evidence compels

a contrary conclusion. Carbajal-Gonzalez, 78 F.3d at 197. Its

legal conclusions we review de novo. Id. However, we accord

deference to the BIA's interpretation of immigration statutes. Id.

 

II.

Ibarra presents two general arguments in his appeal. He

contends that he is not eligible for deportation because, on

January 17, 1993, he did not effect an "entry" into the United

States within the meaning of 8 U.S.C. § 1101(a)(13) and Rosenberg

v. Fleuti, 374 U.S. 449 (1963). In the alternative, he claims that

the BIA erred when it declared him statutorily ineligible for

suspension of deportation on grounds that his participation in

alien smuggling precluded the Board from finding him to possess the

good moral character required for this relief. Ibarra challenges

the denial of suspension of deportation in three ways. First, he

argues that the BIA's finding that he assisted his wife to enter

the United States in violation of 8 U.S.C. § 1182(a)(6)(E)(I) is

not supported by substantial evidence. He next contends that he
5

could not have been found in violation of 8 U.S.C. §

1182(a)(6)(E)(I) because he was never charged with the offense in

a charging document. Therefore, he had no notice of the charge.

Finally, Petitioner argues that the BIA erred in ruling that a

waiver under 8 U.S.C. § 1182(d)(11) does not remove a finding of

lack of good moral character. We address each in turn.

A.

An alien who enters the United States without inspection is

deportable under 8 U.S.C. § 1251(a)(1)(B). This provision,

however, requires that a resident alien do more than simply cross

the border without inspection. He must make an "entry" within the

meaning of 8 U.S.C. § 1101(a)(3). Carbajal- Gonzalez, 78 F.3d at

197. Ibarra argues that he did not effect such an "entry."

Therefore, he is not deportable.

The Supreme Court has held that a resident alien only effects

an "entry" under § 1101(a)(3) if "he intended to depart in a manner

'meaningfully interruptive'" of his permanent residence. Rosenberg

v. Fleuti, 374 U.S. 449 (1963)). To determine whether a meaningful

interruption has occurred, Fleuti requires that we carefully

balance several factors, among them "(1) the length of the alien's

absence from the United States; (2) whether the alien had to

procure travel documents for the trip; and (3) the purpose of the

visit, with an emphasis on whether the purpose was contrary to

immigration policy." Carbajal-Gonzalez, 78 F.3d at 197 (citing

Fleuti, 374 U.S. at 461-62). These factors, however, are not

exhaustive. Id. More recently, we have recognized that a resident

alien's fully consummated intent to actively engage in alien
6

smuggling is an extremely important consideration. See id. at 200

(explaining Laredo-Miranda v. I.N.S., 555 F.2d 1242 (5th Cir.

1977)). That this intent is formed after the alien's departure

from the United States is irrelevant. Id. 

Although a number of these factors weigh in Ibarra favor, the

BIA did not err in dismissing his appeal. Petitioner planned only

a short trip to Mexico; he intended to stay there just one night.

The record, moreover, contains no evidence that he was required to

obtain travel documents. On the other hand, the record clearly

demonstrates a fully consummated intent to engage in alien

smuggling. Ibarra testified that he knew his wife could not cross

the border legally and that to assist her in doing so he would have

to break the law. Under our decision in Laredo-Miranda, therefore,

Ibarra effected an "entry" within the meaning of § 1101(a)(3). See

Laredo-Miranda, 555 F.2d at 1245-46 (holding that a lawful resident

alien who had crossed the border to dine with his girlfriend and

who decided to wade the Rio Grande only upon discovering he had

forgotten his green card meaningfully interrupted his permanent

residence status when he assisted a group of aliens who were

attempting to cross the river at the same point); see also

Carbajal-Gonzalez, 78 F.3d at 199-200. The BIA did not err in

holding him deportable under § 1251(a)(1)(B).

B.

Ibarra also challenges the BIA's ruling that he is not

eligible for suspension of deportation under § 1254(a). That

provision requires an alien to establish that he is a "person of

good moral character." Section 1101(f) defines "good moral
7

character." In relevant part it states:

For purposes of this chapter . . . No person shall be

regarded as, or found to be, a person of good moral

character who, during the period for which good moral

character is required to be established, is, or was . .

. a member of one or more of the classes of persons,

whether excludable or not, described in paragraphs . . .

(6)(E) . . . of section 1182(a) of this title . . . if

the offense described therein, for which such person was

convicted, or of which he admits the commission, was

committed during such period. . . . The fact that any

person is not within any of the foregoing classes shall

not preclude a finding that for other reasons such person

is or was not of good moral character.

Paragraph (6)(E) of section 1182(a) lists classes of "excludable

aliens." Among the excludable are "smugglers," described as "[a]ny

alien who at any time 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 excludable." §

1182(a)(6)(E)(I). 

Under this statutory scheme, Ibarra is not eligible for

suspension of deportation if he assisted his wife in illegally

entering the United States. He argues, therefore, that the BIA

finding that he participated in smuggling is not supported by

substantial evidence. As the IJ pointed out, however, the evidence

that Ibarra assisted his wife in illegally entering the United

States is "overwhelming." The Petitioner admitted to accompanying

her so that she would not be forced to rely on assistance from two

men whom he considered drunken and untrustworthy. Ibarra assisted

his wife in crossing the river, and assistance is all that is

required to violate § 1182(a)(6)(E)(I).

Ibarra also suggests that he should not have been found

excludable under § 1182(a)(6)(E)(I) because he was never charged
8

with smuggling in a charging document. This argument is specious.

Section 1101(f) requires only that Petitioner admit to

participation in smuggling. More importantly, Ibarra failed to

present this argument to the BIA; therefore, it is not properly

before us. See Mamoka v. I.N.S., 43 F.3d 184, 187 (5th Cir. 1995).

Finally, Ibarra contends that, even if he is technically

excludable under § 1182(a)(6)(E)(I), he is eligible for a waiver of

this exclusion under § 1182(d)(11). This waiver provision

provides:

The Attorney General may, in his discretion for

humanitarian purposes, to assure family unity, or when it

is otherwise in the public interest, waive application of

clause (I) of subsection (a)(6)(E) of this section in the

case of any alien lawfully admitted for permanent

residence who temporarily proceeded abroad voluntarily

and not under an order of deportation, and who is

otherwise admissible to the United States as a returning

resident under section 1182(b) of this title and in the

case of an alien seeking admission or adjustment of

status as an immediate relative or immigrant under

section 1153(a) of this title (other than paragraph (4)

therefore) if the alien has encouraged, induced,

assisted, abetted, or aided only the alien's spouse,

parent, son, or daughter (and not other individual) to

enter the United States in violation of law.

§ 1182(d)(11). Petitioner argues that this provision waives a

finding of lack of good moral character under § 1101(f)(3) because

it "waives application" of § 1182(a)(6)(E)(I), thereby wiping out

all negative legal consequences of that provision. One of those

consequences is, of course, the requirement that INS consider all

individuals who admit to smuggling described in § 1182(a)(6)(E)(I)

as persons lacking in good moral character. See § 1101(f)(3).

Petitioner contends, therefore, that the BIA erred in ruling him

statutorily ineligible for suspension of deportation under §

1254(a) because it did not apply the waiver provision to extinguish
9

the finding of lack of good moral character. The INS responds that

the waiver provision of § 1182(d)(11) does not affect a good moral

character determination under § 1101(f)(3).

The plain language of § 1101(f)(3) supports the BIA's

interpretation of the statute. Section 1101(f)(3) states that,

"whether excludable or not," no person who is described in §§

1182(a)(2)(D)(prostitution and commercialized vice),

6(E)(smuggling), and 9(A)(polygamy) "shall be regarded as . . . a

person of good moral character." The key words are "whether

excludable or not." The waiver under § 1182(d)(11) provides Ibarra

with a strong argument that he is not "excludable." However, under

the terms of § 1101(f)(3), that fact that he is not excludable does

not make him a person of good moral character and thereby eligible

for suspension of deportation. The BIA did not err in declaring

Petitioner ineligible for suspension of deportation. 

III.

For these reasons, we dismiss the petition.

DISMISSED.