10-2143-ag
Arellano-Zapien v. Holder
BIA
Rocco, IJ
A075 407 392
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23rd day of September, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PETER W. HALL,
9 GERARD E. LYNCH,
10 Circuit Judges.
11
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13
14 EFRAIN ARELLANO-ZAPIEN,
15 Petitioner,
16
17 v. 10-2143-ag
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
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23
24 FOR PETITIONER: Anne E. Doebler
25 Buffalo, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Lyle D. Jentzer, Senior
1 Litigation Counsel; Edward J. Duffy,
2 United States Department of Justice,
3 Civil Division, Office of Immigration
4 Litigation
5 Washington, D.C.
6
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED, that the petition for review
11 is DENIED.
12 Efrain Arellano-Zapien (“Petitioner”), a native and
13 citizen of Mexico, seeks review of a May 13, 2010, decision
14 of the BIA, which affirmed a decision of an Immigration
15 Judge (“IJ”) denying his application for cancellation of
16 removal. We assume the parties’ familiarity with the
17 underlying facts, the procedural history, and the issues
18 presented for review.
19 As the BIA adopted the decision of the IJ and
20 supplemented that decision, we review the IJ’s decision as
21 supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d
22 268, 271 (2d Cir. 2005). We review the agency’s factual
23 findings under the substantial evidence standard, and
24 questions of law de novo. See Aliyev v. Mukasey, 549 F.3d
25 111, 115 (2d Cir. 2008).
26
2
1 The BIA and IJ ruled that Petitioner was precluded from
2 satisfying the “good moral character” requirement for
3 cancellation of removal because he knowingly assisted his
4 wife’s two illegal entries into the United States in 2003.
5 Because Petitioner is not a lawful permanent resident, to
6 establish eligibility for cancellation of removal he must
7 demonstrate, inter alia, that during the “10 years
8 immediately preceding the date of [his] application . . .
9 [he] has been a person of good moral character.” 8 U.S.C.
10 § 1229b(b)(1). The Immigration and Nationality Act (“INA”)
11 provides that “[n]o person shall be regarded as, or found to
12 be, a person of good moral character who, during the period
13 for which good moral character is required to be
14 established, is, or was . . . a member of one or more of the
15 classes of persons, whether inadmissible or not, described
16 in [8 U.S.C. § 1182(a)(6)(E)] . . . if the offense described
17 therein, for which such person was convicted or of which he
18 admits the commission, was committed during such period.”
19 Id. § 1101(f)(3). Section 1182(a)(6)(E), in turn,
20 designates as inadmissible for smuggling “[a]ny alien who at
21 any time knowingly has encouraged, induced, assisted,
22 abetted, or aided any other alien to enter or to try to
3
1 enter the United States in violation of law.” Id.
2 § 1182(a)(6)(E)(i).
3 We have “yet to set forth anything approaching a
4 bright-line test as to the nature of the actions that will
5 or will not suffice to support a finding that an alien has
6 encouraged, induced, assisted, abetted, or aided another in
7 illegally entering the United States.” Chambers v. Office
8 of Chief Counsel, 494 F.3d 274, 279 (2d Cir. 2007) (internal
9 quotation marks omitted). However, under any plausible
10 reading of the statute, Petitioner’s actions constitute
11 smuggling. At his hearing, Petitioner admitted that he had
12 made arrangements with smugglers for his wife’s two illegal
13 entries into the United States in 2003. With regard to his
14 wife’s first entry, Petitioner paid a smuggler approximately
15 $6,000 to lead his wife across the border, to lead
16 Petitioner across three hours later, and to reunite them at
17 a location in the United States. As to his wife’s second
18 entry, Petitioner again hired a smuggler to take both him
19 and his wife across the border. Based on these facts as
20 admitted by Petitioner, there is substantial evidence in the
21 record to support the agency’s conclusion that Petitioner
22 admitted assisting his wife’s illegal entries into the
23 United States for purposes of 8 U.S.C. § 1182(a)(6)(E)(i).
24 See Chambers, 494 F.3d at 279-80.
4
1 Petitioner argues that the agency erred in designating
2 him as both a smuggler and a smugglee. As the BIA observed,
3 nothing in Section 1182(a)(6)(E) suggests that the
4 categories of smugglees and smugglers are mutually
5 exclusive. Petitioner argues that Congress did not intend
6 to include smugglees as possible smugglers under 8 U.S.C.
7 § 1182(a)(6)(E) because smugglees are inadmissible under a
8 separate subsection, § 1182(a)(6)(A)(i). However, an alien
9 may be found inadmissible under multiple provisions of the
10 INA. Cf. 8 U.S.C. § 1182(d)(11) (providing a waiver of
11 inadmissibility under Section 1182(a)(6)(E)(i) only if the
12 alien is “otherwise admissible”). Furthermore, although
13 Congress expressly excluded from the purview of
14 Section 1182(a)(6)(E) certain aliens who would otherwise be
15 considered smugglers, no such exception is made for
16 smugglees. See 8 U.S.C. § 1182(a)(6)(E)(ii); United States
17 v. Smith, 499 U.S. 160, 167 (1991) (“Where Congress
18 explicitly enumerates certain exceptions to a general
19 prohibition, additional exceptions are not to be implied, in
20 the absence of evidence of a contrary legislative intent.”
21 (internal quotation marks omitted)).
22 Finally, Petitioner argues that the family unity waiver
23 of inadmissibility (provided for in Section
5
1 1182(a)(6)(E)(iii) as set forth in Section 1182(d)(11))
2 applies in the context of determining whether an alien is
3 precluded from establishing good moral character for
4 cancellation of removal purposes. We need not consider that
5 question because, in any event, Petitioner does not qualify
6 for such a waiver. Section 1182(d)(11) provides in
7 pertinent part that:
8 The Attorney General may, in his discretion for
9 humanitarian purposes, to assure family unity, or when
10 it is otherwise in the public interest, waive
11 application of clause (i) of subsection (a)(6)(E) in
12 the case of any alien lawfully admitted for permanent
13 residence who temporarily proceeded abroad voluntarily
14 and not under an order of removal, and who is
15 otherwise admissible to the United States as a
16 returning resident . . . and in the case of an alien
17 seeking admission or adjustment of status as an
18 immediate relative or [family-sponsored] immigrant . .
19 ., if the alien has encouraged, induced, assisted,
20 abetted, or aided only an individual who at the time
21 of such action was the alien’s spouse, parent, son, or
22 daughter (and no other individual) to enter the United
23 States in violation of law.
24
25 8 U.S.C. § 1182(d)(11). Petitioner is not eligible for a
26 waiver under the plain terms of this provision because he is
27 neither a lawful permanent resident nor an alien seeking
28 admission or adjustment of status as an immediate relative
29 or family-sponsored immigrant. See, e.g., Lamie v. U.S.
30 Trustee, 540 U.S. 526, 534 (2004) (noting the well-
31 established rule that courts must enforce a statute
32 according to its terms if its language is plain).
6
1 Petitioner asserts--and the government does not
2 dispute--that he is a steady worker and family man with no
3 criminal record or history of drug abuse, and that he has
4 been found to lack “good moral character” only because he
5 handled the arrangements for his wife, as well as himself,
6 to be smuggled back into the United States after a visit to
7 her dying parents in Mexico. If these assertions are true
8 (something about which we can have no opinion, and that in
9 any event is irrelevant to the legal issues before us), the
10 government might well want to consider whether the continued
11 prosecution of this case is consistent with recently
12 announced guidelines for the exercise of prosecutorial
13 discretion in deportation cases. See Memorandum from John
14 Morton, Director, U.S. Immigration and Customs Enforcement,
15 to All Field Office Directors et al. (June 17, 2011),
16 available at http://www.ice.gov/doclib/secure-
17 communities/pdf/prosecutorial-discretion-memo.pdf.
18 We have considered Petitioner’s remaining arguments and
19 we find them to be without merit. For the foregoing
20 reasons, the petition for review is DENIED. As we have
21 completed our review, any stay of removal that the Court
7
1 previously granted in this petition is VACATED, and any
2 pending motion for a stay of removal in this petition is
3 DISMISSED as moot.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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