PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICARDO PAZ RAMOS; BERTA A.
PAZ; AMAGAILIS PAZ; TERESA DE
JESUS PAZ MANSILLA; MELVIN
RICARDO PAZ; BERTA ALICIA PAZ,
Petitioners,
No. 08-1271
v.
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
Argued: September 22, 2011
Decided: October 27, 2011
Before WILKINSON, WYNN, and FLOYD, Circuit Judges.
Petition denied by published opinion. Judge Wilkinson wrote
the opinion, in which Judge Wynn and Judge Floyd joined.
COUNSEL
ARGUED: Aaron Robert Caruso, ABOD & CARUSO, LLC,
Rockville, Maryland, for Petitioners. Kathryn L. DeAngelis,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
2 RAMOS v. HOLDER
ton, D.C., for Respondent. ON BRIEF: Tony West, Assistant
Attorney General, Civil Division, Terri J. Scadron, Assistant
Director, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.
OPINION
WILKINSON, Circuit Judge:
Ricardo Paz Ramos entered the United States illegally from
Guatemala in 1989, and his wife Berta and their four children
followed. Each child’s arrival in the United States involved a
similar sequence of events—Ricardo and Berta sent several
thousand dollars to the child at a hotel in Mexico, who arrived
illegally in the United States promptly thereafter. The Immi-
gration Judge ("IJ") and Board of Immigration Appeals
("BIA") both determined that Ricardo’s and Berta’s monetary
assistance amounted to "alien smuggling" pursuant to section
212(a)(6)(E) of the INA, and that they thus lacked the "good
moral character" necessary for cancellation of removal.
Because the IJ and BIA properly interpreted and applied the
"alien smuggling" provision, we deny the petition for review.
I.
Ricardo Paz Ramos, his wife Berta Paz, and their four chil-
dren, Amagailis, Teresa, Melvin and Berta Alicia, are natives
and citizens of Guatemala. They all entered the United States
without admission or parole over the past several decades,
beginning with Ricardo in May 1989.
Ricardo’s four children arrived in the United States
between 1997 and 2001. The arrival of each child followed
the same pattern. Amagailis was the first to enter the United
States. In 1997, she called Ricardo from a hotel in Mexico
RAMOS v. HOLDER 3
and asked him to send money. She arrived in the United
States shortly after Ricardo sent $3,500. In 1999, Melvin did
the same; he called Ricardo from a hotel in Mexico to request
money and entered the United States not long after receiving
$3,500 from Ricardo. Also in 1999, Teresa called Ricardo
from a hotel in Mexico with a similar request for funds.
Ricardo sent $3,000 and Teresa then arrived in the United
States. Finally, in 2001, Berta Alicia called Ricardo from a
hotel in Mexico to ask for money and promptly arrived in the
United States after receiving $4,000 from Ricardo.
According to Ricardo’s testimony in Immigration Court
proceedings, the money he sent to the hotels in Mexico was
intended to enable his children to travel to the United States.
Asked what the money he sent to the children was to be used
for, Ricardo answered: "So they could arrive" and "[t]o go
through—to go to this side." With respect to Amagailis,
Ricardo testified, "I sent her money so she could come" and
"she was at the hotel and . . . we just sent the money, so she
could just cross." Berta confirmed that the money was sent to
help her children reach the United States. She testified that
she and Ricardo jointly decided to send the children money in
Mexico and that she knew the money was to be used "[t]o
cross the border" and that it was sent "so they could come
over here, cross the border." Ricardo admitted that he was
aware his children did not have the necessary papers to come
to the United States. He testified: "I think I was violating the
law . . . . [t]o help my children to enter into this country ille-
gally."
II.
A.
Ricardo’s and Berta’s testimony was offered in Immigra-
tion Court proceedings pertaining to Ricardo’s application on
June 23, 2000 for Special Rule Cancellation of Removal
under the Nicaraguan Adjustment and Central American
4 RAMOS v. HOLDER
Relief Act, Pub. L. No. 105-100, 111 Stat. 2160, 2196 (1997)
("NACARA").1
Congress enacted NACARA to amend the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996
("IIRIRA"), which replaced suspension of deportation relief
with cancellation of removal—the latter a more demanding
standard for those seeking to block their deportation from this
country. See 8 U.S.C. § 1229b(b)(1). NACARA reduced the
prospect of massive deportations of long-term U.S. residents
from several countries, including Guatemala, as a result of
IIRIRA’s passage. Section 203 of NACARA permits aliens
who satisfy specific criteria to apply for pre-IIRIRA suspen-
sion of deportation relief, instead of the more stringent post-
IIRIRA cancellation of removal, even if they were charged
with removability or inadmissibility after the effective date of
IIRIRA. NACARA § 203(f). Section 203 also covers the
spouse or children of a qualifying alien. See 8 C.F.R.
§ 1240.61(a)(4).
It is undisputed that as a national of Guatemala who first
entered the United States before October 1, 1990, Ricardo
was eligible to apply for NACARA cancellation of removal.
See id. § 1240.60-61. At that point, in order to obtain relief
Ricardo was required to demonstrate, among other things, that
he had been continually present in the United States for at
least seven years before his application date and that he had
been a person of "good moral character" during that seven
year period. See 8 C.F.R. § 1240.66(b).
Under the INA’s general definition provision, a person is
per se ineligible to be "regarded as, or found to be, a person
of good moral character" if, inter alia, that person is an alien
"smuggler" described in section 212(a)(6)(E) of the INA, 8
1
Petitioners also sought asylum and withholding of removal, but the
decisions adverse to petitioners on these issues are not the subject of this
appeal.
RAMOS v. HOLDER 5
U.S.C. § 1182(a)(6)(E). 8 U.S.C. § 1101(f)(3). Section
212(a)(6)(E) of the INA, entitled "Smugglers," applies to
"[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." 8 U.S.C.
§ 1182(a)(6)(E). The burden of proof is on the applicant for
NACARA cancellation to establish his qualification—
including good moral character—by a preponderance of the
evidence. See 8 C.F.R. § 240.64(a).
B.
Ricardo’s application for NACARA cancellation of
removal was referred to an IJ on August 31, 2004 by the
United States Citizenship and Immigration Services, which
found evidence that Ricardo failed to establish "good moral
character" because "[d]uring the preceding seven years [he]
knowingly encouraged, induced, aided and assisted [his] four
children to illegally enter the United States in violation of
immigration laws." On the same day, all six Paz family mem-
bers received Notices to Appear in Immigration Court on the
charge of inadmissibility pursuant to section 212(a)(6)(A)(i)
of the INA for having entered the United States without
admission or parole. They conceded removability as charged.
The IJ denied petitioners’ application for NACARA cancel-
lation on April 13, 2006.2 She determined that Ricardo and
Berta failed to establish the good moral character necessary to
receive relief under NACARA because they had violated sec-
tion 212(a)(6)(E) of the INA by knowingly assisting their
children to illegally enter the United States. In reliance on
2
Berta was a derivative beneficiary on Ricardo’s application and
claimed independent eligibility for NACARA cancellation as well. Melvin
and Berta Alicia are dependents on Ricardo’s and Berta’s claims. The IJ
found that Amagailis did not qualify as a dependent because she was over
21 years old and entered the United States after October 1, 1990. See 8
C.F.R. § 1240.61(a)(5). The IJ additionally found that Teresa did not qual-
ify as a dependent because she is married and entered after 1990.
6 RAMOS v. HOLDER
Ricardo’s and Berta’s testimony, the IJ concluded that
Ricardo and Berta "sent money jointly to enable their children
to come in through the U.S.-Mexican border." According to
the IJ, the testimony established that Ricardo and Berta were
both "aware that their children had no documentation that
would enable them to cross into the United States legally";
that Ricardo "had knowledge that [his children] could, or
actually would, engage the assistance of smugglers"; and that
Berta knew "that absent assistance from smugglers, her chil-
dren would not have been able to enter the U.S." Upon con-
ducting an independent review of the record, the BIA upheld
the IJ’s decision on appeal. This petition for review followed.
III.
The determination that an alien is per se ineligible to estab-
lish the good moral character necessary for cancellation of
removal "is essentially a legal determination involving the
application of law to factual findings." Jean v. Gonzales, 435
F.3d 475, 482 (4th Cir. 2006).
We also begin our review of the decision below mindful of
the deference owed the agency’s determination in this area.
First, we defer to the reasonable legal interpretations of the
BIA, which is entrusted to interpret and enforce the INA. See
INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) ("[J]udicial
deference to the Executive Branch is especially appropriate in
the immigration context where officials ‘exercise especially
sensitive political functions that implicate questions of foreign
relations.’") (quoting INS v. Abudu, 485 U.S. 94, 110 (1988)).
Second, as we are not the original fact finders, our review of
the agency’s factual determinations is necessarily limited and
we "must uphold the BIA’s decision if it is supported by sub-
stantial evidence from the record as a whole." See Huaman-
Cornelio v. BIA, 979 F.2d 995, 999 (4th Cir. 1992) (citing INS
v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
RAMOS v. HOLDER 7
A.
As noted above, section 212(a)(6)(E) of the INA applies to
"[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." 8 U.S.C.
§ 1182(a)(6)(E). Contrary to petitioners’ contentions, the
agency used the proper standard for evaluating the applicabil-
ity of section 212(a)(6)(E) and substantial evidence supports
the finding that Ricardo’s and Berta’s actions met this stan-
dard. We therefore defer to the agency’s reasoned conclusion
that Ricardo’s and Berta’s recurring attempts to financially
facilitate their children’s illegal entry into the United States
satisfied both the assistance and knowledge requirements of
the "alien smuggling" provision.
As to assistance, Ricardo and Berta provided the assistance
necessary for each child to illegally enter the United States by
sending thousands of dollars to a hotel in Mexico in answer
to each child’s request. As several of the children testified,
they needed money to pay their way across the border. Melvin
and Berta Alicia both testified that upon arrival at the border
between Mexico and the United States they paid someone to
aid them cross.
Each child’s payment to cross the border came on the heels
of his or her receipt of money from Ricardo and Berta. The
testimony confirmed what this sequence of events suggests.
Ricardo and Berta testified that the money they sent was
essential for their children to make the crossing. Ricardo
observed that Melvin "had to pay somebody to help [him]
cross the border because he was a child." And as Berta
acknowledged, the money was "so they could come over
here" because "in Mexico there [are] always people there . . .
offering that service [to cross the border]." The IJ thus had
substantial reason to find that the money from Ricardo and
Berta provided indispensible financial assistance for the ille-
gal crossings.
8 RAMOS v. HOLDER
With respect to knowledge, there was ample evidence to
conclude that Ricardo and Berta aided their children "know-
ingly" based on the pattern of assistance. The children’s
arrival in the United States followed a strikingly similar
sequence of events: after receiving a call from a hotel in Mex-
ico asking for money, Ricardo and Berta would send the
money and the caller would arrive in the United States shortly
thereafter. The nearly-identical arrival process provides con-
siderable reason to infer that at least by the time Ricardo and
Berta received their second, third, and fourth calls from Mex-
ico asking for money, they knew the money would be used to
pay for illegal passage to the United States.
Ricardo himself spelled out the obvious significance of
receiving a call from a transient hotel station near the United
States border. Asked if he knew why Teresa went to Mexico,
Ricardo answered: "Because in order to come here, she had
to go through Mexico and all of us, as we came here, we went
through Mexico." With respect to the money, when asked if
he knew how Melvin was going to use it, Ricardo responded
succinctly, "It was the same thing." Ricardo and Berta thus
knew the drill; they were well aware—from experience—both
of the purpose of the trip from Guatemala to Mexico and of
the intended use for the funds.
Furthermore, Ricardo’s and Berta’s testimony was reveal-
ing not only as to what they knew, but also as to what they
intended. Aware that his children did not have the necessary
papers to come to the United States and that he "was violating
the law," Ricardo nevertheless acknowledged that he endeav-
ored "[t]o help [his] children to enter into this country ille-
gally." Ricardo conceded that the money was to be used "[s]o
they [the children] could arrive" and "[t]o go through—to go
to this side." Berta likewise testified that she knew the money
was to be used "[t]o cross the border" and that it was sent "so
they could come over here, cross the border."
In light of Ricardo’s own admissions during the Immigra-
tion Court proceedings, we cannot accept petitioners’ after-
RAMOS v. HOLDER 9
the-fact contention that the "record is abundantly clear in this
case that [Ricardo] had no idea how the children would use
his money to come to the United States." Petitioners’ Br. at
13. Petitioners’ own testimony firmly established that Ricardo
and Berta provided monetary assistance knowing it would be
used for an illegal entry into the United States.
B.
This application of Section 212(a)(6)(E) accords with deci-
sions in other circuits to have considered the question. In
Urzua Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. 2007),
the court held that the alien was statutorily barred from estab-
lishing the good moral character necessary for suspension of
deportation because he had collected money and arranged
payment for a smuggler to assist his sibling across the border.
The Ninth Circuit emphasized 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. at
748 (internal quotation marks omitted). The Fifth Circuit has
similarly concluded that the statute applies to "[a]ny alien
seeking admission to the United States who participates in a
scheme to aid other aliens in an illegal entry . . . regardless
of whether the assisting individual was present at the border
crossing." Soriano v. Gonzales, 484 F.3d 318, 321 (5th Cir.
2007).
These decisions lend support to the conclusion that physical
presence at the border is not a necessary condition to satisfy
section 212(a)(6)(E). Rather, as the plain language of the stat-
ute suggests, an affirmative act that facilitates the illegal
entry, such as financial assistance, may suffice.3
3
Petitioners’ heavy reliance on a Sixth Circuit case, Tapucu v. Gonzales,
399 F.3d 736 (6th Cir. 2005), is misplaced. Tapucu’s undisputed testi-
mony was that while he knew his friend Deveci was an illegal alien he
nonetheless thought Deveci could lawfully re-enter the United States.
10 RAMOS v. HOLDER
IV.
Arguing that the IJ and BIA applied the wrong standard,
petitioners suggest various ways to restrict the scope of the
"alien smuggling" statute, including adding a requirement that
the acts involve the "commission of a compensable" act or an
"illicit" act. They urge us, more generally, to articulate a uni-
form legal standard for making section 212(a)(6)(E) determi-
nations.
We decline, however, to add limitations absent from the
words of the statute. For example, the fact that Ricardo and
Berta did not themselves receive financial compensation or
commit an additional illicit act in the course of assisting the
unlawful crossing does not place them beyond the statute’s
reach as they contend. The statute’s language does not set
forth a set of conditions to knowing assistance, such as pres-
ence at the border, compensation for assistance, or illicit
activity. We have no cause to insert arbitrary limits into a stat-
ute, especially one that Congress "intended . . . to apply to a
broad range of conduct." Urzua Covarrubias, 487 F.3d at 748.
On the other hand, we are not suggesting that any financial
assistance to family members living outside the United States
constitutes alien smuggling. The altogether human impulse to
assist one’s family may in an appropriate case confirm "good
moral character," not undermine it. For example, Berta testi-
fied that she sent money monthly to her sister in Guatemala
to help pay for expenses such as food and clothing. Financial
assistance intended to improve quality of life in a foreign
country—without a proximate border crossing or evidence of
With respect to assistance, the relevant behavior was an omission—
Tapucu’s failure to correct Deveci’s misstatement to immigration officials
at the U.S.-Canadian border. Here, Ricardo and Berta testified that they
knew the children could not enter lawfully and affirmatively acted to aid
their entry. In all events, we have no reason to assess the correctness of
Tapucu here.
RAMOS v. HOLDER 11
intent to facilitate illegal entry—presents a different case from
the one before us here.
We therefore do not think it advisable either to place artifi-
cial limits on the statute or to delineate automatic qualifica-
tions for alien smuggling. Rather than script the contours of
the statute, we trust that the agency will "give[ ] concrete
meaning" to the statutory terms "through a process of case-
by-case adjudication." INS v. Cardoza-Fonseca, 480 U.S.
421, 448 (1987). What constitutes knowing assistance will
often depend on the totality of the circumstances, which the
individual fact finder is best equipped to take into account as
different factual circumstances arise.
What is clear, however, is that the agency was fully justi-
fied here in finding alien smuggling. The burden of proof was
on petitioners, as illegal aliens, to demonstrate their qualifica-
tion for cancellation of removal, including their good moral
character. Instead, an obvious pattern of financial aid resulting
in the children’s arrival in the United States strongly sug-
gested that Ricardo and Berta knowingly assisted illegal
entry. This determination was only strengthened by Ricardo’s
and Berta’s own testimony admitting intent to help their chil-
dren cross the border in violation of the law. As a result, we
have no reason to question the agency’s application of the rel-
evant law or to disturb the determination that petitioners lack
the requisite good moral character to be eligible for cancella-
tion of removal.
V.
For the foregoing reasons, the petition for review is denied.
PETITION DENIED