United States Court of Appeals

For the First Circuit

Nos. 13-1550

13-2013

MILENA BOGDANOVA DIMOVA,

Petitioner,

v.

ERIC H. HOLDER JR., Attorney General,

Respondent.

PETITIONS FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Thompson, and Kayatta,

Circuit Judges.

Craig R. Shagin, with whom Rakhee Vemulapalli was on brief,

for petitioner.

Yedidya Cohen, Trial Attorney, Office of Immigration

Litigation, with whom Stuart F. Delery, Assistant Attorney General,

Civil Division, and David V. Bernal, Assistant Director, Office of

Immigration Litigation, were on brief, for respondent.

April 3, 2015
THOMPSON, Circuit Judge. Sometimes one ill-considered

decision is all it takes. Unfortunately, this is so for our

petitioner, Milena Dimova ("Dimova"). Dimova seeks review of a

decision from the Board of Immigration Appeals ("BIA") finding her

removable under the alien smuggling provisions of the Immigration

and Nationality Act, and ordering her removed to her native

Bulgaria. Although the record indicates Dimova was put in a very

difficult position by someone she trusted, it also leaves no doubt

that she nevertheless knowingly and voluntarily assisted her

friends as they attempted to cross illegally from Canada into the

United States. We must, therefore, deny Dimova's petition for

review.

I. BACKGROUND

The facts are not disputed. Dimova is a native and

citizen of Bulgaria. She emigrated to the United States in the

summer of 2002 after she "won a green card lottery,"1

 and settled

in the Raleigh, North Carolina area. Her husband and young son are

United States citizens. Since coming to the United States, Dimova

1 A colloquialism. Dimova meant that she had been awarded a

"diversity visa." Diversity visas "are made available to citizens

of countries that have been under-represented within the annual

pool of immigrants entering the United States. The visas are

distributed by means of an annual lottery held by the Department of

State." United States v. Mensah, 737 F.3d 789, 792 n.1 (1st Cir.

2013) (internal citations and quotation marks omitted). 

Individuals who go on to receive visas through this program become

eligible to apply for citizenship. See Gebre v. Rice, 462

F.Supp.2d. 186, 187 (D.Mass. 2006).

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has worked for a utility company and as an emergency medical

technician.

One of Dimova's co-workers, Milan Mihaylov, also happened

to be a neighbor of hers in North Carolina. Although it is not

clear from the record whether Dimova gave any thought to Mihaylov's

legal status when they first met, she testified during removal

proceedings that, if she "had to make an assumption back then," she

would have assumed he was a legal resident. This is because, she

explained, her own immigration status had been checked by their

employer, so she assumed Mihaylov's status would have been checked,

too, especially since he worked as a nurse. Moreover, Mihaylov had

been able to buy a house, which Dimova took as another sign that he

was in the country legally. But appearances can be deceiving: 

unbeknownst to Dimova, Mihaylov did not have legal status in the

United States.

Mihaylov relocated (voluntarily) from Raleigh to Canada

in March of 2007, but he continued to stay in touch with Dimova

after the move. A few months later, Mihaylov asked Dimova if she

could meet him in Canada and drive his car (with Mihaylov, his

wife, and their young daughter inside) to North Carolina. He told

Dimova that he needed her help because he was a bad driver, it was

a 16-hour drive to North Carolina, and he couldn't drive for too

long due to a back problem. Dimova agreed. Mihaylov prepared two

notarized documents, one of which authorized Dimova to drive his

-3-
car across the Canada-U.S. border, while the other allowed Dimova

to take his three-year-old child with her as well.

Mihaylov bought Dimova a one-way plane ticket to

Montreal, where they planned to begin their trip, and Dimova

arrived there on July 25, 2007. After meeting up with the

Mihaylovs, they all piled into the car, with Dimova taking the

wheel and driving south towards Vermont. As evening came on and

they approached the border, Mihaylov instructed Dimova to turn off

the highway, then directed her onto a dirt road in a remote area.

Mihaylov told Dimova that he wanted her to drop him and his wife

off there, by the side of the road. He implored Dimova to take the

car and their daughter into the United States.

Dimova was "very surprised" by this turn of events, as

she had assumed they would all be making the crossing together. 

She told Mihaylov he was "crazy" and demanded to know why he was

doing this and why he was involving her. Mihaylov said that it

would be "better for us" this way. When Dimova stopped the car,

Mihaylov and his wife got out, taking "one or two backpacks with

them." Mihaylov told her that the papers she'd need to get their

car and their daughter across the border were in the glove

compartment.

He also gave Dimova a map of the vicinity, which allowed

her to find her way back to the highway on the Canadian side of the

border. In addition, the map showed where the Mihaylovs planned to

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cross the border and where they would be waiting to get picked up

once they made it into the United States. Mihaylov pointed these

locations out to Dimova.2

An argument ensued, with Dimova telling him "I don't want

to have nothing to do with this, I am not coming back for, for you

or your wife, I don't care." She also told him, "if I take your

car from here right now . . . I'm going straight back to Raleigh,

North Carolina." While they were arguing, Mihaylov's daughter

"started being fussy," so Mihaylov decided that his family should

stay together after all.

Finally, Dimova told Mihaylov he was "too crazy," and she

took their car and left. It was approximately 8:00 p.m. and still

light out, and Dimova drove directly to the border crossing

station. Although she made it to the border okay, Dimova noticed

the border patrol agents got suspicious when they looked in the

glove compartment, found the documents allowing Dimova to take

Mihaylov's car and child across the border, and saw that Dimova was

by herself. Nevertheless, they allowed Dimova through, and she

continued south towards North Carolina for several hours, planning

to drive all the way there without turning back.

As Dimova put distance between herself and the border,

she "remember[ed] the child," who had been out in the woods all

2

 A border patrol agent testified that the drop-off area is

"well known . . . as a location where aliens and narcotics are

smuggled into the United States."

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night, and "just had to make a judgment call" on what to do next. 

After some introspection, she opted to turn around out of concern

for the Mihaylovs' child, who she knew was stranded in the woods. 

She did this even though she now realized the Mihaylovs had likely

crossed into the United States illegally. By the time she found

the waiting Mihaylovs (at the place Mihaylov indicated on the map),

it was "early dawn . . . starting to get light out."3

 Dimova and

the Mihaylovs were subsequently apprehended by border patrol agents

in Vermont, and Dimova was ultimately charged, in immigration

court, as removable for having engaged in alien smuggling.4

Dimova appeared for trial before an immigration judge

("IJ"). After finding Dimova's testimony credible, the IJ found

that, prior to this misadventure, Dimova "reasonably believed that

[Mihaylov] and his family had legal status in the United States,

due to his profession, visibility in the workplace, and his

ownership of a home in North Carolina." Further, he explicitly

found Mihaylov "lied to and took advantage of" Dimova to secure her

help.

3 Mihaylov testified that he was going to "give her" about ten

hours to come back and pick up his family. He also stated that he

had begun to think that Dimova was not going to come back for them

since it was "almost seven or eight hours until she, she came

back."

4

 The Government informs us that this matter was referred to

the U.S. Attorney's Office, but it declined to prosecute Dimova

criminally.

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The IJ found as a fact that Dimova traveled to Canada "to

meet with [Mihaylov] and his family to assist them in driving to

North Carolina in [Mihaylov's] vehicle." He also found "it was not

[Dimova's] intention to help [the Mihaylovs] illegally enter the

United States until after several hours of deliberation and [she]

only returned to ensure the safety of the young child." Thus, the

IJ found that Dimova did not have any knowledge that the Mihaylovs

lacked legal status, nor did she have any intent to assist an

illegal crossing at any time while she was in Canada.

Nevertheless, he determined that Dimova was removable

because, by coming back for and picking up the Mihaylovs, she

"knowingly . . . encouraged, induced, assisted, abetted, or aided

any . . . alien to enter or try to enter the United States in

violation of law." This was so, he found, because Dimova "knew at

the time that she returned to pick the family up that they had

entered [the] country illegally."

Dimova appealed to the BIA, which issued a written

opinion from a single board member setting forth its own analysis

and affirming the IJ's removal order. The BIA considered and

rejected Dimova's argument that she could not have assisted the

Mihaylovs with their entry into the United States because they had

crossed the border hours before she went back for them. The BIA

concluded that Dimova, although she did not initially wish to help

the Mihaylovs with their crossing, nevertheless "had the requisite

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intent when she knowingly travelled [sic] to the designated pick-up

point, to aid the family in their entry into the United States." 

The BIA further noted that it was immaterial that the Mihaylovs had

already entered the United States and that they did not cross the

border with any assurance of Dimova's help because, ultimately, her

coming back for them was a knowing, affirmative act of assistance. 

It concluded that had the group not been apprehended, Dimova's

"affirmative act would have led to the [Mihaylovs'] successful

entry into the United States." Dimova filed a Petition for Review

with this Court.

Concurrently, Dimova filed a motion for reconsideration

with the BIA, in which she sought to have her appeal considered by

a panel rather than a single member. Dimova did not attempt to

introduce any new evidence, instead arguing that the BIA's original

decision was incorrect as a matter of law because there was no

prearranged plan with the Mihaylovs, and their entry was complete

by the time she picked them up. In denying her motion, the same

BIA member who penned the denial of her appeal stated that, "[t]he

fact that the illegal entrants may have already crossed the border

by the time she [i.e., Dimova] returned is not important to our, or

the Immigration Judge's decision." What the BIA found dispositive

was that Dimova "took affirmative steps" to aid what she knew by

that time was the Mihaylovs' illegal entry: she "turned her car

around, arrived at the prearranged meeting spot and picked up the

-8-
[Mihaylovs] to drive them back to North Carolina." In so doing,

the BIA found, Dimova "intended to follow through with their entry

as originally discussed in Canada."

Following this latest setback, Dimova filed a petition

for review with this Court.5 We consolidated both petitions, and

ordered oral argument. That having been completed, this matter is

now ripe for resolution.

II. STANDARD OF REVIEW

The IJ issued a written decision finding Dimova

removable, and the BIA authored its own opinion "adopt[ing] and

affirm[ing]" the IJ's factual findings and reasoning. The BIA also

set forth its own additional analysis. Accordingly, we review both

decisions, Rashad v. Mukasey, 554 F.3d 1, 4 (1st Cir. 2009),

"focus[ing] our review on the BIA's decision rather than the IJ's,"

Lima v. Holder, 758 F.3d 72, 78 (1st Cir. 2014) (citing López v.

Holder, 740 F.3d 207, 210 (1st Cir. 2014)); Lin v. Mukasey, 521

F.3d 22, 26 (1st Cir. 2008) ("Where the BIA adopts the IJ's ruling,

but also engages in discussion of its own, we review the decisions

of both together.").

5 Interestingly, rather than a straight-out reversal, Dimova

wants us to "remand[] to a panel of the BIA for further proceedings

to determine if an actual agreement between Ms. Dimova and the

aliens was entered into before the aliens entered the United

States," and direct it to terminate proceedings against her if such

an agreement is not supported by the record. Because we ultimately

conclude that the BIA did not err, we have no need to consider the

appropriateness of a remand.

-9-
The Government has never contested Dimova's story about

what happened and why she did what she did. And no one takes issue

with any of the IJ's factual findings on appeal.6

 Accordingly,

though we remain primarily concerned with the BIA's decision, we

are required to determine whether the uncontested facts render

Dimova removable under the alien smuggling provision of the

Immigration and Nationality Act. This presents a question of law,

which we review de novo. Lima, 758 F.3d at 78 (applying de novo

review to "the BIA's conclusion that a noncitizen's criminal

conviction constitutes grounds for removal"); see also Altamirano

v. Gonzales, 427 F.3d 586, 591 (9th Cir. 2005) (determining that,

where a petitioner "offers no objections to the IJ's findings of

fact, th[e] case presents a legal question we review de novo")

6 Dimova does, however, assert the BIA made improper factual

findings not made by the IJ in the first instance, namely, that

Dimova and the Mihaylovs had a "group arrangement" and a

"prearrangement" to meet in the United States. See 8 C.F.R.

§ 1003.1(d)(3)(iv) ("[T]he [BIA] will not engage in factfinding in

the course of deciding appeals."). Having reviewed both of the

BIA's written decisions, we disagree. The BIA explicitly indicated

in its first decision that it was adopting the IJ's findings, and

we see nothing undercutting this statement in its denial of

Dimova's motion for reconsideration. No one--not DHS, the IJ, or

the BIA--has ever said that Dimova had any intent to assist in an

illegal crossing at any time prior to the Mihaylovs' physical

crossing. To the extent the BIA referenced a prearrangement, we

take this as a reference to the uncontested facts that Mihaylov

told Dimova where he and his family would wait for her, Dimova

eventually decided to go back there, and she found the Mihaylovs

waiting at that very spot. These facts, taken together, lead to

the logical conclusion that the pick-up point was prearranged, even

though Dimova's agreement to the arrangement was belated.

-10-
(internal quotation marks omitted).7 Nonetheless, we generally

give "some deference to the [BIA's] reasonable interpretation of

statutes and regulations that fall within its purview." Pan v.

Gonzales, 489 F.3d 80, 85 (1st Cir. 2007); see also Fustaguio Do

Nascimento v. Mukasey, 549 F.3d 12, 15 (1st Cir. 2008) (saying that

we give "due deference" in that regard).

III. DISCUSSION

The Government contends Dimova is removable pursuant to

INA § 237(a)(1)(E)(i), 8 U.S.C. § 1227(a)(1)(E)(i). That section

provides:

Any alien who (prior to the date of entry, at

the time of any entry, or within 5 years of

the date of any entry) [1] knowingly has [2]

encouraged, induced, assisted, abetted, or

aided any other alien [3] to enter or to try

to enter the United States in violation of law

is deportable.

INA § 237(a)(1)(E)(i), 8 U.S.C. § 1227(a)(1)(E)(i). The BIA

concluded that by returning for and picking up the Mihaylovs, all

the while knowing they had entered the United States illegally,

Dimova affirmatively assisted the Mihaylovs' illegal entry and

thereby became removable. On appeal, Dimova raises several grounds

7

 There is one additional wrinkle, easily ironed out. The BIA

issued not one, but two written decisions, one affirming the IJ,

and the second denying Dimova's motion for reconsideration. 

Technically, we review the BIA's denial of the motion for

reconsideration for abuse of discretion only, Martinez-Lopez v.

Holder, 704 F.3d 169, 171 (1st Cir. 2013), but because we

ultimately conclude from our de novo review that the BIA did not

err in affirming the IJ, we need not separately address the motion

for reconsideration.

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to support her position that the uncontested facts are insufficient

to conclude that she assisted an illegal entry. Although her brief

tends to mush her various arguments together instead of spelling

them out separately, we have unpacked them and placed them in

chronological order, beginning with Dimova's time in Canada and

ending with her apprehension in Vermont. We'll address them in

this order.

First, Dimova says that she did not render any assistance

or encouragement prior to the Mihaylovs' physical crossing into the

United States. This is because she believed the Mihaylovs had

legal status in the United States when she flew to Canada. And,

when she eventually found out that they did not and were going to

try to get in illegally, Dimova absolutely refused to help. Dimova

points to this refusal as demonstrating that she did nothing to

cause or encourage the crossing. And furthermore, Dimova says, she

had no affirmative duty to report the Mihaylovs' plan to evade

inspection when she herself went through the border crossing, so

her silence in this regard doesn't count as an act of assistance

either. Thus, in her view, there is no evidence in the record that

allows a finding that she did anything to assist, aid, or encourage

the Mihaylovs' illegal entry at any time she was in Canada or

crossing the border herself.

With respect to her actions once in the United States,

Dimova asserts that she did not assist an illegal entry because the

-12-
Mihaylovs had already entered the United States when she returned

for them. Thus, even if she knowingly rendered some sort of

assistance to them, she did so only after their entry was complete

and, therefore, she may not be punished under the alien smuggling

statute.8

Failing that, Dimova argues that to be removable under

the statute, she must have acted with the intent to assist the

Mihaylovs' illegal entry. This intent is absent, she says, because

the IJ specifically found, and the Government does not contest,

that she returned for the Mihaylovs out of a humanitarian concern

for their young child who had been outside in the woods overnight,

not out of any desire to help them get away with an illegal border

crossing. Thanks to this finding, Dimova contends that she did not

possess the necessary mens rea to support a finding of alien

smuggling.

The Government, not surprisingly, sees things in a

different light and characterizes Dimova's view of what constitutes

8

 Dimova suggests that it would have been more appropriate for

the Government to proceed against her pursuant to a separate

statute that prohibits knowingly transporting individuals who have

entered illegally. See INA § 274(a)(1)(A)(ii), 8 U.S.C.

§ 1324(a)(1)(A)(ii) (providing criminal penalties for an individual

who "knowing or in reckless disregard of the fact that an alien has

come to, entered, or remains in the United States in violation of

law, transports . . . such alien within the United States"). 

Because the Government has only proceeded against Dimova on the

basis of the alien smuggling charge, it is irrelevant to this

appeal whether her conduct may satisfy an offense defined in a

different statute.

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alien smuggling as "cramped." The Government urges us to adopt the

reasoning of the other circuits that have "rejected a narrow

interpretation" of the alien smuggling statute.

According to the Government, it is immaterial whether

Dimova "induced or encouraged" the Mihaylovs to enter the country,

nor does it matter whether anything she did caused the Mihaylovs to

cross the border or even whether there was a prearrangement. 

Neither does it matter that Dimova may have ultimately been

motivated by a concern for the Mihaylovs' young child, rather than

a desire to help them get to North Carolina undetected by border

patrol. What does matter, the Government says, is that Dimova

"knowingly aided the Mihaylovs in advancing their scheme by

returning to a designated spot and driving them toward their

destination, whether out of humanitarian concern or not."

Having sufficiently dressed the stage, we can now raise

the curtain on our analysis.

1. Dimova's Actions in Canada

Beginning with Dimova's time in Canada, the Government

does not even contend that any of her actions there rendered her

removable. We agree with the parties that, based upon the

statute's plain language, she did nothing in Canada to encourage,

induce, assist, aid, or abet the Mihaylovs' crossing. Indeed, it

is uncontested that Dimova believed the Mihaylovs had the legal

right to enter the United States when she flew to Canada and began

-14-
driving south. And when the Mihaylovs told her what they intended,

the record shows that Dimova outright refused to help, going so far

as to tell them that if she drove away in their car, she wouldn't

be back for them.

In addition, the Government does not contend that Dimova

had any duty to report the Mihaylovs' intent as she herself crossed

the border. Any potential argument along these lines has,

therefore, been waived. United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990).

Accordingly, we conclude that none of Dimova's actions

while she was in Canada or during her own border crossing

constitute alien smuggling.

2. Actions in the United States

Next, we must determine whether Dimova's actions taken on

the United States side of the border, namely, returning for and

picking up the Mihaylovs, render her removable. We consider first

her argument that the Mihaylovs had already completed their entry

when she went back for them.

i. "Entry"

Dimova's position implicates the meaning of "entry"

within the context of the alien smuggling statute. We have not

often had cause to interpret the INA's alien smuggling provisions,

and we have not yet passed upon the meaning of its phrase "to enter

-15-
or to try to enter." Nevertheless, we do not write on a blank

slate: the BIA has already given its own definition.

According to the BIA, "an 'entry' requires: (1) a

crossing into the territorial limits of the United States, i.e.,

physical presence; (2)(a) an inspection and admission by an

immigration officer, or (b) an actual and intentional evasion of

inspection at the nearest inspection point; and (3) freedom from

official restraint." Matter of Martinez-Serrano, 25 I. & N. Dec.

151, 153 (B.I.A. 2009) (internal quotation marks omitted) (emphasis

removed). The BIA has also determined that "the act of entry may

include other related acts that occurred either before, during, or

after a border crossing, so long as those acts are in furtherance

of, and may be considered to be part of, the act of securing and

accomplishing the entry." Id. at 154 (citing Altamirano, 427 F.3d

586; Urzua Covarrubias v. Gonzales, 487 F.3d 742, 748 (9th Cir.

2007); Larios-Mendez v. INS, 597 F.2d 144 (9th Cir. 1979))

(emphasis added). 

The BIA's interpretation of the statutory term does not

strike us as "arbitrary, capricious, or clearly contrary to law." 

Da Silva Neto v. Holder, 680 F.3d 25, 28 (1st Cir. 2012). To the

contrary, it is logical and makes eminent good sense. Accordingly,

we should defer to the BIA's interpretation of the term, "entry,"

and we do so here. Cf. id. at 33 ("[W]e must defer to the BIA's

conclusion that a crime involves moral turpitude if that conclusion

-16-
is neither arbitrary nor contrary to law.") (internal quotation

marks omitted).9

Nevertheless, Dimova believes we should view "entry"

narrowly to conclude that the Mihaylovs completed theirs upon

physically crossing from Canada to the United States. A major

problem with her argument, however, is that the cases she cites to

back up this proposition are easily distinguishable. Unlike here,

where only hours elapsed between the physical crossing and Dimova's

return, each of Dimova's cases involved a passage of time on the

order of days, or even weeks, between the illegal crossing and the

act of assistance, leading to the conclusion that the illegal entry

had been completed. See Parra-Rojas v. Att'y Gen. U.S., 747 F.3d

164, 170 (3d Cir. 2014) (finding petitioner, whose "conduct was

strictly limited to picking up the aliens once they had already

crossed the border and transporting them from one area in the

9

 Citing I.N.S. v. St. Cyr, 533 U.S. 289, 320 n.45 (2001),

Dimova urges us not to defer to the BIA's definition because such

deference is only warranted when the statute is ambiguous, and, in

her view, the alien smuggling statute is not. Yet, Dimova does not

bring our attention to any statutory definition of "entry," and we

have previously said that "[w]here Congress has not spoken directly

to the issue, the interpretation given by the BIA is entitled to

deference unless arbitrary, capricious, or manifestly contrary to

the statute." Cabral v. I.N.S., 15 F.3d 193, 194 (1st Cir. 1994). 

Furthermore, the other case Dimova relies on, I.N.S. v. CardozaFonseca, 480 U.S. 421 (1987), cuts against her, as the Supreme

Court indicated there that, in general, we are to follow the BIA's

lead where Congress inserts into a statute a term that "can only be

given concrete meaning through a process of case-by-case

adjudication." Id. at 447-48. It seems to us that "entry," as

used in the alien smuggling act, is just such a term.

-17-
United States to another" did not violate alien smuggling

provisions where petitioner did not know the aliens before they

entered the country and the illegal crossings took place "several

days" before the petitioner picked them up); Matter of I.M., 7

I. & N. Dec. 389, 390-91 (B.I.A. 1957) (concluding that respondent

who transported several aliens did not aid or abet their illegal

entries where the respondent did not provide transportation until

days or weeks after each individual physically entered the United

States). Accordingly, we find them of little persuasive value

given the facts in this record.10 Furthermore, even these cases do

not find that the illegal entry was complete at the moment the

individual illegally crossed into the United States.

We believe "entry" should be given a broader meaning than

the one Dimova urges. We agree with the Ninth Circuit that entry

into the United States "requires more than mere physical presence

within the country." United States v. Gonzalez-Torres, 309 F.3d

594, 598 (9th Cir. 2002). "To 'enter,' an alien must cross the

United States border free from official restraint." Id. 

In Gonzalez-Torres, our sister circuit dealt with an

allegation that an alien entered the United States without official

10 Because we find Parra-Rojas distinguishable on the facts,

we need not engage with the Government's contention that the Third

Circuit's opinion in that case is "in tension" with Fifth and Ninth

Circuit opinions. Neither do we need to address the Government's

implication that the Third Circuit improperly failed to defer to

the BIA's interpretation of "entry" with regards to alien

smuggling.

-18-
authorization in violation of the applicable statute. The

defendant there had been under constant surveillance from the time

he crossed the border until his arrest, leading the Ninth Circuit

to conclude he had "still not made an entry despite having crossed

the border . . . because he lack[ed] the freedom to go at large and

mix with the population." Id. (internal quotation marks omitted). 

The Court concluded that it is only when "an alien is not

discovered until some time after exercising his free will within

the United States, [that] he has entered free from official

restraint." Id.

Although there is no evidence showing the Mihaylovs were

under surveillance from the time they crossed the border to the

moment of their arrest mere hours later, the record demonstrates

the Mihaylovs did not exercise their free will in any meaningful

way after their physical crossing. The only thing the Mihaylovs

did in the United States was wait overnight, in a remote wooded

area, for Dimova to pick them up. All told, they were in the

United States for a matter of hours, just a walk from the border,

before Dimova rendered the assistance necessary for them to move

forward with their effort to enter the country without

apprehension. Cf. Soriano v. Gonzales, 484 F.3d 318, 320-21 (5th

Cir. 2007) (rejecting the petitioner's argument that he merely

transported aliens already within the United States, instead of

assisting that entry, where the petitioner met and picked up the

-19-
aliens at a McDonald's parking lot within hours of their physical

crossing into the United States). Moreover, the group's

apprehension occurred in Vermont, long before they arrived at their

planned end-destination in North Carolina. Accordingly, we can not

say on these facts that the Mihaylovs' entry was complete at the

time Dimova came back for them.

While we could conceive of different facts that might

have led us to conclude the Mihaylovs completed their entry before

Dimova picked them up, we need not engage in that academic exercise

here. This case does not require us to announce any bright-line

rule or a definitive definition of "entry" applicable in all cases. 

Wherever the line may fall, the facts here do not approach it.

ii. Assistance

Having determined that the Mihaylovs had not completed

their "entry" when Dimova picked them up, we must now determine

whether she "encouraged, induced, assisted, abetted, or aided"

their attempt. Dimova says that she did not render assistance

within the meaning of the statute because she did not act in

accordance with a prearranged plan, and because there was no causal

connection between her actions and the Mihaylovs' entry. 

As with entry, we have not previously ruled upon the

meaning of assistance within the context of the alien smuggling

statute. We again look to the decisions of other courts that have.

-20-
The Ninth Circuit--in a case involving identical

statutory language under a different section of the INA--observed

that "the plain meaning of this statutory provision requires an

affirmative act of help, assistance, or encouragement" for an

individual to have engaged in alien smuggling. Altamirano, 427

F.3d at 592; see also Tapucu v. Gonzales, 399 F.3d 736, 740 (6th

Cir. 2005) (holding that the alien smuggling provision "requires an

affirmative and illicit act of assistance in shepherding someone

across the border"). We agree.

We also agree with our sister circuits that an individual

need not be physically present at the time and place of the illegal

crossing to have assisted an illegal entry. Soriano, 484 F.3d at

321; Sanchez-Marquez v. I.N.S., 725 F.2d 61, 63 (7th Cir. 1984)

(finding that an individual who promised to meet and transport

seven individuals after their illegal entry had violated the INA's

alien smuggling provision). Had Congress intended to incorporate

such a physical presence requirement, it presumably would have said

so when it drafted the statute. Thus, we do not consider the fact

that Dimova was not physically present with the Mihaylovs when they

crossed from Canada to Vermont as inoculating her against the alien

smuggling charge.

Dimova argues that she did not act in accordance with a

prearranged plan, noting in her reply brief that "[s]he was not

part of a conspiracy, plan, scheme or understanding that she was

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going to do anything in violation of the immigration laws of the

United States." Be that as it may, the statute does not predicate

liability on whether or not the individuals had a prearranged plan

before the illegal crossing or attempted crossing. All Dimova need

have done was knowingly provide some sort of affirmative assistance

to enable the Mihaylovs' (attempted) entry. And she did not even

need to be present at the time and place of the Mihaylovs' actual

crossing in order to be considered to have rendered assistance.

Further, and contrary to her view of the statute, Dimova

does not need to have "caused" the Mihaylovs to cross the border,

nor did she have to "encourage" or "induce" them to do so in order

to become removable under the alien smuggling statute. Neither

does the statute differentiate between assistance rendered before

or after the physical crossing. See Martinez-Serrano, 25 I. & N.

Dec. at 154 (recognizing that an individual may engage in alien

smuggling by rendering an act of assistance after a physical

crossing is made). To be removable, Dimova need only have

"assisted, abetted or aided" the Mihaylovs' attempted illegal

entry. Thus, what is determinative is whether Dimova somehow eased

or facilitated what she knew to be an attempted illegal entry.

The evidence in the record amply supports the BIA's

conclusion that Dimova's affirmative acts assisted the Mihaylovs'

attempted entry. As darkness approached on the evening preceding

her arrest, Dimova drove down a dirt road and reached a remote

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Canadian location where the Mihaylovs got out of their car. Dimova

left, knowing as she did so that she was driving away with their

only form of transportation (apart from their feet). She also knew

the Mihaylovs were relying on her to pick them up on the U.S. side

of the border. The record does not suggest that the Mihaylovs had

a back-up or alternative plan for evading apprehension just inside

the border should Dimova refuse to help them out. This is

corroborated by the fact that when Dimova returned for them

approximately eight hours later, the Mihaylovs were waiting right

where they said they would be (not to mention Mihaylov's testimony

that he planned to wait ten hours for her to return).

On this record, we have no trouble concluding that

Dimova's affirmative acts assisted the Mihaylovs' illegal entry. 

Dimova rendered invaluable assistance by plucking the Mihaylovs

from a remote location and allowing them to resume their southward

journey without detection. Without Dimova's help, for all

practical purposes the Mihaylovs would have been stranded in the

woods and, more likely, caught by border patrol. Her affirmative

actions clearly assisted the Mihaylovs' "actual and intentional

evasion of inspection" at the border. Martinez-Serrano, 25 I. & N.

Dec. at 153.

iii. Mens Rea - Humanitarian Concern

Dimova's final argument is that even if she assisted the

Mihaylovs in their illegal entry, still she did not engage in alien

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smuggling because, as the IJ found, she was motivated solely out of

concern for the Mihaylovs' child. In other words, she acted out of

humanitarian concern, and by picking up the Mihaylovs she intended

to help their child, not assist their illegal entry. This argument

is without merit.

Unfortunately for Dimova, the statute's plain language

does not contain an exception for assistance stemming in whole or

in part from humanitarian concern. And Dimova does not cite any

other authority providing for such an exception. As relevant to

the facts in this record, the statute requires nothing more than a

knowing act of assistance to an attempted illegal entry into the

United States.

At trial, Dimova admitted that she knew the Mihaylovs had

crossed the border illegally. And while we can only speculate as

to what would have happened to the Mihaylovs had Dimova not gone

back, it is safe to say that her actions made it easier for them to

avoid apprehension at the border. This is all the statute

requires, regardless of whether she was motivated (in whole or in

part) by humanitarian concern. 

IV. CONCLUSION

Time to sum up. Although Dimova's so-called friend lied

to and took advantage of her, Dimova nevertheless came to the

decision to affirmatively assist the Mihaylovs in their border

crossing. She then returned for and helped the Mihaylovs, knowing

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they were trying to get into the country illegally. Like the IJ

and the BIA, we do not question Dimova's humanitarian motivation. 

Nevertheless, the law is clear and unambiguous, and it does not

provide an exception to Dimova. While it gives us no pleasure, the

law brooks but one outcome here.

The petition for review is denied.

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