United States Court of Appeals,
Fifth Circuit.
No. 94-40411.
Carlos Alberto CARBAJAL-GONZALEZ, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
March 27, 1996.
Petition for Review of Order of Immigration and Naturalization
Service.
Before JOLLY, DUHÉ and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
We reverse the INS order of deportation in this case.
An immigration judge ordered Carlos Alberto Carbajal-Gonzalez
deported to Mexico for violations of the Immigration and
Nationality Act (the "Act"). The Board of Immigration Appeals
affirmed the deportation order. Concluding that, as a matter of
law, Carbajal-Gonzalez did not "enter" the United States within the
meaning of the Act, we reverse.1
I
Carbajal-Gonzalez was granted lawful permanent resident status
in the United States on November 27, 1991. He is a twenty-five
year old native and citizen of Mexico. He lives in El Paso, Texas.
His wife is a United States citizen. He teaches folk dancing in
Ciudad Juarez, Mexico, and has crossed the U.S.-Mexican border many
1
Because we reverse the deportation order on the ground that
there was no "entry" under the Act, we do not address Carbajal-
Gonzalez's remaining arguments.
1
times by presenting his valid immigration document.
On October 29, 1992, Carbajal-Gonzalez and his wife went to a
party in a bar after a dance recital in Juarez. Jorge Rodriguez-
Alvidrez was a student in Carbajal-Gonzalez's dance class. He was
also at the party. Carbajal-Gonzalez decided that he wanted to buy
more beer. Because of the late hour, he believed that he could
only do so in the United States. Rodriguez-Alvidrez offered to
help Carbajal-Gonzalez in purchasing the beer. At first, Carbajal-
Gonzalez declined the offer, but he then acquiesced. Rodriguez-
Alvidrez was not a United States citizen, and that night he carried
no documentation on his person that would allow him to enter the
United States legally. It is unclear whether Rodriguez-Alvidrez
did, in fact, possess such documents. Carbajal-Gonzalez's wife
drove the two men to the Bridge of the Americas Port of Entry, and
she kept her husband's immigration document. The two men, both
inebriated, got out of the car and walked across the bridge on the
side opposite to the inspection facilities. Neither man passed
through inspection. Carbajal-Gonzalez's wife drove across the
bridge and picked up her husband and Rodriguez-Alvidrez on the U.S.
side. Shortly thereafter, the border patrol arrested the two men.
An Order to Show Cause issued, which charged Carbajal-Gonzalez
with entry without inspection under 8 U.S.C. § 1251(a)(1)(B) and
smuggling aliens under 8 U.S.C. § 1251(a)(1)(E)(i).2 After finding
2
Specifically, the pertinent portions of the statute provide:
§ 1251. Deportable aliens
(a) Classes of deportable aliens
2
that the charges in the Order to Show Cause were supported by
clear, unequivocal and convincing evidence, the immigration judge
(the "IJ") ordered that Carbajal-Gonzalez be deported. The Board
of Immigration Appeals (the "Board") affirmed the order and
dismissed Carbajal-Gonzalez's appeal. Carbajal-Gonzalez now
petitions this court for review.
II
On appeal, Carbajal-Gonzalez argues that the evidence of an
entry without inspection and of smuggling is insufficient to meet
Any alien (including an alien crewman) in the United
States shall, upon the order of the Attorney General, be
deported if the alien is within one or more of the
following classes of deportable aliens:
(1) Excludable at time of entry or of adjustment of
status or violates status
...
(B) Entered without inspection
Any alien who entered the United States without
inspection or at any time or place other than as
designated by the Attorney general or is in the
United States in violation of this chapter or any
other law of the United States is deportable.
...
(E) Smuggling
(i) In general
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) 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.
8 U.S.C.A. § 1251(a)(1)(B), (E)(i) (West Supp.1995)
3
the required burden of clear, unequivocal and convincing evidence.
On the other hand, the Immigration and Naturalization Service (the
"INS") argues that substantial evidence supports the order of
deportation. More specifically, the INS urges that Carbajal-
Gonzalez's own admissions prove that he aided and abetted an
alien's illegal entry into the United States; therefore, within
the meaning of the Act, Carbajal-Gonzalez's return to the United
States was an "entry" without inspection, and his assistance of
Rodriguez-Alvidrez constituted a smuggling. The INS further argues
that this court's review of the Board's decision is limited by the
substantial evidence standard. Therefore, we may reverse the
deportation order only if the evidence compels the conclusion that
the Board's decision was wrong.
We shall first discuss the applicable standard of review, then
briefly review the body of relevant United States Supreme Court and
Fifth Circuit case law, and finally turn to the merits of this
appeal.
III
A
Generally, in immigration cases, we review only the decision
of the Board, not that of the IJ. Ogbemudia v. I.N.S., 988 F.2d
595, 598 (5th Cir.1993) (footnote omitted). The Board conducts a
de novo review of the administrative record, and we consider the
errors of the IJ only to the extent that they affect the Board's
decision. Id. We sustain an order of deportation if it is
supported by "reasonable, substantial, and probative evidence on
4
the record considered as a whole." 8 U.S.C. § 1105a(a)(4); see
also Woodby v. I.N.S., 385 U.S. 276, 281-82, 87 S.Ct. 483, 486, 17
L.Ed.2d 362 (1966). The substantial evidence standard "requires
only that the Board's conclusion be based upon the evidence
presented and that it be substantially reasonable." Wilson v.
I.N.S., 43 F.3d 211, 213 (5th Cir.1995) quoting Animashaun v.
I.N.S., 990 F.2d 234, 237 (5th Cir.1993), cert. denied, --- U.S. --
--, 114 S.Ct. 557, 126 L.Ed.2d 458 (1993). We review factual
conclusions of the Board for substantial evidence. Ozdemir v.
I.N.S., 46 F.3d 6, 7 (5th Cir.1994), citing Silwany-Rodriguez v.
I.N.S., 975 F.2d 1157, 1160 (5th Cir.1992). We will affirm the
Board's decision unless the evidence compels a contrary conclusion.
Ozdemir, 46 F.3d at 8. In other words, the alien must show that
the evidence was so compelling that no reasonable factfinder could
conclude against it. Chun v. I.N.S., 40 F.3d 76, 78 (5th Cir.1994)
citing I.N.S. v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 817,
117 L.Ed.2d 38 (1992); Silwany-Rodriguez, 975 F.2d at 1160. This
court reviews conclusions of law de novo (although with the usual
deference to the Board's interpretations of ambiguous provisions of
the Act in accordance with Chevron U.S.A. Inc. v. Natural Resources
Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694
(1984)).
As noted, we may review actions of the IJ only when they have
some impact on the Board's decision. Chun v. I.N.S., 40 F.3d 76,
78 (5th Cir.1994) citing Adebisi v. I.N.S., 952 F.2d 910, 912 (5th
Cir.1992). In the instant case, the IJ failed to apply properly
5
the Supreme Court doctrine set forth in Rosenberg v. Fleuti, 374
U.S. 449, 462, 83 S.Ct. 1804, 1812, 10 L.Ed.2d 1000 (1963), as that
doctrine has been developed by this circuit's precedent discussed
below. This failure resulted in an evidentiary proceeding and
legal decision that focused upon isolated events occurring after
Carbajal-Gonzalez left the United States to the exclusion of all
other relevant factors. See Rivas-Martinez v. I.N.S., 997 F.2d
1143, 1146 (5th Cir.1993). Rather than correct this error, the
Board adopted the IJ's misapplication of the doctrine and failed to
perform the proper weighing of critical factors and circumstances
that our precedent requires. Because the substantial evidence
standard of review implicitly presumes that the Board performed the
proper legal analysis, that standard cannot apply to our review of
this appeal. Id. Instead, we review de novo the Board's
interpretation and application of our precedent. Id.
B
The government brought two charges against Carbajal-Gonzalez:
illegal entry without inspection and alien smuggling. 8 U.S.C. §
1251(a)(1)(B), (E)(i). A prerequisite to both charges is that
Carbajal-Gonzalez must have made an "entry" into the United States
as defined in 8 U.S.C. § 1101(a)(13). Contrary to the ordinary use
of the word "entry," the requirement of an "entry" under the Act is
a term of art in judicial parlance, which must be understood in the
context of the resident alien's subjective intent at the time of
departure from the United States. Fleuti, 374 U.S. at 461-63, 83
S.Ct. at 1812; see also, e.g., Vargas-Banuelos v. I.N.S., 466 F.2d
6
1371, 1372-74 (5th Cir.1972). We look to the alien's intent
because, for purposes of the Act, a lawful permanent resident alien
does not make an "entry" (actually re-entry) into the United States
if "the alien proves to the satisfaction of the Attorney General
that his departure ... was not intended...." 8 U.S.C. §
1101(a)(13). Because a review of the "judicial gloss" that now
surrounds this term of art will facilitate a better understanding
of our holding in this case, we begin by revisiting the standard
announced by the Supreme Court in Fleuti and by examining the Fifth
Circuit progeny that has followed.
C
Under what has come to be known as "the Fleuti doctrine," the
United States Supreme Court held that a resident alien does not
effect an "entry" for the purposes of 8 U.S.C. § 1101(a)(13) when
he returns from an "innocent, casual, and brief excursion" outside
the United States; instead, such an alien effects an entry only if
he intended to depart in a manner "meaningfully interruptive" of
the alien's permanent residence. Fleuti, 374 U.S. at 462, 83 S.Ct.
at 1812, explained in Molina v. Sewell, 983 F.2d 676, 679 (5th
Cir.1993). Rejecting as contrary to congressional intent a
"woodenly construed" entry doctrine, the Supreme Court set forth
three factors to be considered in determining whether an alien had
the requisite intent to effect a meaningful interruption of
permanent residence status: (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,
7
with an emphasis on whether the purpose was contrary to immigration
policy. Fleuti, 374 U.S. at 461-62, 83 S.Ct. at 1811-12. The
Court indicated, however, that its list of factors was not
exhaustive and remained to be developed by judicial inclusion and
exclusion. Id. at 462, 83 S.Ct. at 1812.
This circuit first applied the Fleuti doctrine in Yanez-
Jacquez v. I.N.S., 440 F.2d 701 (5th Cir.1971). In that case, a
resident alien, who was armed with an ice pick, made a short trip
into Juarez for the stated purpose of avenging an assault and
robbery that had been committed against him. We concluded, under
Fleuti, that Yanez-Jacquez had not "entered" the United States when
he discovered a few hours after his departure that he had forgotten
his alien registration card and waded back across the river to
retrieve it. In reaching this result, the court weighed the Fleuti
factors (i.e., his "less than salutory purpose" in departing versus
the brief duration of his trip, the numerous short round-trip
visits that he habitually made between Mexico and the United States
and his possession of a Border Crossing Identity Card, which he
failed to carry on the occasion in question). On balance, we
concluded that the latter factors outweighed Yanez-Jacquez's
illicit purpose upon departure and that he did not intend to
"interrupt in any meaningful manner his status as a permanent
resident alien." Id.
A more straight-forward set of facts arose in Solis-Davila v.
I.N.S., 456 F.2d 424 (5th Cir.1972), a case that we decided on
summary calendar. The petitioner, Solis-Davila, left the United
8
States with the express intent of smuggling Mexican aliens into
this country. He executed the crime and then reentered the United
States, where he received payment for his work. Solis-Davila pled
guilty to alien smuggling and was sentenced. His guilty plea was
corroborated by the overwhelming sworn testimony of third-parties.
Looking to Fleuti, we easily distinguished Solis-Davila's criminal
intent and conduct, which permeated his trip southward, from the
short, innocent trip abroad that was made by the petitioner in
Fleuti. Id. at 426-27. A unanimous panel affirmed the deportation
order.
We examined the "entry" doctrine with closer scrutiny in
Vargas-Banuelos v. I.N.S., 466 F.2d 1371 (5th Cir.1972). In
Vargas-Banuelos, a resident alien traveled to Juarez, Mexico, to
pay a condolence call on a family member. While in Juarez, four
Mexicans asked Vargas-Banuelos to help them enter illegally into
the United States and then travel to Chicago. Vargas-Banuelos
agreed to help them, accepted payment, and arranged for someone to
meet and assist the four illegal aliens in El Paso, Texas. Vargas-
Banuelos was arrested in Texas and convicted in a federal district
court of aiding and abetting alien smuggling. The Board later
ordered Vargas-Banuelos deported, and this court reversed. In our
review of the Board's decision, we first examined Fleuti and its
application in Yanez-Jacquez and Solis-Davila. Weighing factors
such as Vargas-Banuelos's brief trip, his lawful return into the
United States and his innocent state of mind at the time of his
departure against the criminal activity in which he eventually
9
engaged, we reasoned that "[u]nder Fleuti and its progeny in this
circuit, the failure of the Government to show a criminal purpose
prior to petitioner's departure is fatal to its case." Vargas-
Banuelos, 466 F.2d at 1373-1374.
A few years later, in Laredo-Miranda v. I.N.S., 555 F.2d 1242
(5th Cir.1977), we once again examined the Fleuti doctrine and its
evolution in Fifth Circuit precedent. We observed that, standing
alone, neither (1) the act of returning to the United States by
wading across a river rather than by way of an authorized
checkpoint; nor (2) a post-departure formation of intent to aid
illegal aliens followed by a return through a proper checkpoint,
renders a resident alien's departure "meaningfully interruptive" of
his residence so as to constitute an "entry." Laredo-Miranda, 555
F.2d at 1245-46, discussing Yanez-Jacquez v. I.N.S., 440 F.2d at
701 and Vargas-Banuelos, 466 F.2d at 1371. The particular facts of
Laredo-Miranda fell between these two developing principles.
In Laredo-Miranda, a lawful resident alien crossed the border
into Juarez, Mexico, to have a meal with his girlfriend and her
family. He traveled with a companion who intended to smuggle a
group of illegal aliens into the United States. Laredo-Miranda,
however, had no such criminal intention upon leaving the United
States. When returning, Laredo-Miranda discovered that he had
forgotten his alien registration card. Rather than explain his
mistake to the border officials, Laredo-Miranda decided to wade
across the river with the group of illegal aliens. He first waded
solo into the river—presumably to "test the waters" for the
10
presence of the border patrol. When no authorities appeared, he
returned to the Mexican riverbank and, leading the group of five
aliens, waded across a second time. Laredo-Miranda proceeded to
guide the group of illegal aliens across the border at an
unauthorized location.
Under Fleuti, we weighed Laredo-Miranda's short visit to
Mexico and his innocent intentions upon leaving the United States
against his wholly voluntary and active ferrying of a group of
illegal aliens into the United States. We concluded that a
meaningful interruption in his permanent residence status had
occurred. In reaching this conclusion, we factually distinguished
the case from Vargas-Banuelos:
Vargas-Banuelos crossed into Mexico and recrossed legally;
apparently neither the duration of his visit nor the manner of
his return were affected by his extra-territorially acquired
intention to commit a crime upon his return, and he committed
no act in furtherance of the conspiracy into which he had
entered while in Mexico until after his wholly lawful return
to the United States.
Laredo-Miranda, on the other hand, was an active and most
essential participant in bringing illegal aliens into this
country at the precise time of his covert crossing by way of
the river.... We can conceive of little which would be more
indicative of an alien's intent to disrupt his status as a
lawful resident than a fully consummated intent, even if
formed after departure from this country, to participate
actively in bringing illegal aliens into the United States
while himself coming in by the same illicit route.
Laredo-Miranda, 555 F.2d at 1245-46.
Although we upheld the order of deportation in Laredo-Miranda,
we declined to adopt the bright-line rule proposed by the INS at
oral argument: namely, that any resident alien who crosses into
the United States without presenting himself at a border checkpoint
11
makes an "entry" under the Act. We observed that the holding of
Yanez-Jacquez bound us to a less rigorous interpretation of the
Act. Id. at 1245 n. 6.
What is clear from the precedent in this circuit, including
our analysis in Laredo-Miranda, is that a careful balancing of the
Fleuti factors (as modified by our precedent and any peculiar facts
of the case at hand) must be performed in deciding whether an
"entry" under the Act has occurred. The holding of Laredo-Miranda
cannot be construed to liberate us from this analysis. To the
contrary, our decision in Laredo-Miranda actually expands upon this
balancing process by suggesting a new factor for our consideration:
a resident alien's fully consummated intent to participate actively
in alien smuggling, whether formed prior to or after departure from
the United States. Accordingly, in line with Fleuti and its Fifth
Circuit progeny, we turn to balance the factors critical to this
case so that we might determine whether Carbajal-Gonzalez intended
to bring about a meaningful interruption in his permanent resident
status.
IV
The evidence in the record before us consists primarily of
Carbajal-Gonzalez's sworn statement to a border patrol agent at the
time of his arrest and the deportation hearing testimony of
Carbajal-Gonzalez, his wife, and mother-in-law. At the hearing,
Carbajal-Gonzalez appeared pro se and required an interpreter to
translate from English to Spanish during the proceeding. The
evidence pertinent to our analysis under Fleuti reveals that
12
Carbajal-Gonzalez maintained his home in El Paso, Texas, with his
wife, a United States citizen. Carbajal-Gonzalez taught classes at
a dance school in Juarez, Mexico, and entered many times into the
United States by showing his immigration card. According to his
deportation hearing testimony, he was, on the night in question,
with his wife at a party and a dance in Juarez. The government
does not challenge that the purpose of his visit to Mexico was
purely social. Carbajal-Gonzalez left the party in Juarez with his
wife and one of his dance students, Rodriguez-Alvidrez, to buy more
beer in the United States. The testimony indicates that both
Carbajal-Gonzalez and his wife believed Rodriguez-Alvidrez to be a
documented alien, although without documents on his person at the
time. The government neither rebutted this testimony nor offered
any evidence regarding Rodriguez-Alvidrez's status for immigration
purposes. The hearing testimony indicates that the two men were
inebriated and intended to cross the border into the United States,
buy beer and return to the party in Juarez.3 Carbajal-Gonzalez's
wife drove them to the bridge at the border. She argued with her
husband and kept his "papers." The two men got out of the car and
walked across the bridge without going through inspection.
In sharp contrast to the evidence of a fully consummated
intent to commit a crime and the ensuing criminal conduct in
Laredo-Miranda and Solis-Davila, the case here presents a set of
3
Carbajal-Gonzalez's arrest statement indicates that they
planned to ride around after buying the beer. At his deportation
hearing, he corrected this statement as an inaccuracy in the sworn
statement and stressed that they intended to buy the beer and
return to the party in Juarez.
13
facts that could hardly be less prosecution-worthy. The IJ's error
in his legal analysis, under a misguided interpretation of Laredo-
Miranda, was his disregard of the full panoply of Fleuti factors.
Ignoring any positive factors presented by Carbajal-Gonzalez in his
pro se defense, the IJ focused solely on concluding that Carbajal-
Gonzalez was guilty of alien smuggling. See Rodriguez-Gutierrez v.
INS, 59 F.3d 504, 508-09 (5th Cir.1995) (Board abused its
discretion by failing to give meaningful weight to the positive
equities in the case and by improperly characterizing the negative
equities). Compounding this error, the Board also failed to
perform the careful balancing of the Fleuti factors that our
precedent requires. Instead, the Board rigidly relied upon two
"admissions" that Carbajal-Gonzalez gave in response to the IJ's
questioning at the deportation hearing:
Q: And did you assist [Rodriguez-Alvidrez] in entering the
United States?4
A: Yes.
. . . . .
Q: ... I'm also satisfied that the reason you entered was to
be with this .. [sic] to be with Jorge. You have a card.
That card would entitle you to enter the United States
any time you wanted to. So the only reason you entered
without inspection was so .. [sic] to be with Jorge, to
help him in, correct?
4
As previously noted, Carbajal-Gonzalez testified at the
deportation hearing with the help of an English/Spanish
interpreter. Because we are struck by the number of legal terms of
art that appear in this transcript and are sensitive to the
difficulty of fully comprehending such terms in translation without
the assistance of counsel, we must observe that a verb such as
"assist" when translated into the Spanish may be understood to mean
nothing more than "to accompany." CASSELL'S SPANISH DICTIONARY
(Funk & Wagnalls 1968).
14
A: Yes.
Record at 4-5, 38, 43.
What the IJ, the Board, and the INS have overlooked are, among
other things: Carbajal-Gonzalez's length of absence from the
United States, the purpose of his junket to Juarez, his stated
intent to buy beer in the United States and return with Rodriguez-
Alvidrez to Juarez, his belief (corroborated by his wife) that
Rodriguez-Alvidrez was a documented alien, the absence of any
evidence that Carbajal-Gonzalez formed a fully consummated criminal
intent to secrete illegal aliens into the United States, and highly
probative portions of Carbajal-Gonzalez's testimony at the
deportation hearing such as:
Q: Is it true that about October the 30th, 1992, you knowingly
encouraged, induced, assisted, aided, and abetted Jorge
Rodriguez-Avidres (phonetic sp.), an alien, to enter the
United States in violation of law?
A: I didn't induce. We were .. [sic] I just met him and we
were talking and we crossed together.
Record at 37.
Having considered the record in its entirety and having had
the benefit of hearing and questioning counsel at oral argument, we
are left with the firm conviction that the resident alien's conduct
in this case is poles apart from that manifested in Laredo-Miranda.
The conduct in Laredo-Miranda was susceptible to only one
interpretation: Laredo-Miranda fully intended to smuggle
undocumented aliens into this country, aliens who intended to
remain and reside in the United States illegally. Laredo-Miranda
then executed upon his criminal intent in an active leadership
15
role. Here, on this record, Carbajal-Gonzalez's senseless conduct
can be viewed as hardly more than a foolish lark, walking a drunk
friend across the wrong side of the Bridge of the Americas without
inspection. Although we certainly do not condone Carbajal-
Gonzalez's failure to carry the proper papers and his attempt to
evade inspection at the border, it is impossible for us to conclude
that this drunken imprudence gave rise to a meaningful interruption
of his permanent residence in this country. We hold, therefore,
that Carbajal-Gonzalez did not "enter" the United States on October
29, 1993, within the meaning of 8 U.S.C. § 1101(a)(13). It follows
that, because there was no "entry" under the Act (an essential
element to both charges levied against Carbajal-Gonzalez), there
was neither an 8 U.S.C. § 1251(a)(1)(B) entry without inspection
nor a smuggling pursuant to 8 U.S.C. § 1251(a)(1)(E)(i).5
5
Although our reversal of the deportation order against
Carbajal-Gonzalez on the ground that there was no "entry" is
dispositive of this appeal, we also observe that the INS has
pursued simultaneously a charge of alien smuggling against
Carbajal-Gonzalez. An alien is excludable pursuant to Section
1251(a)(1) and therefore deportable who "... prior to the date of
entry, at the time of any entry, or within 5 years of the date of
any entry ... 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. § 1251(a)(1)(E)(i). On the
facts before us, there is insubstantial evidence that Carbajal-
Gonzalez knowingly smuggled an alien into the United States. In
other words, the necessary scienter element is missing in this
case.
On this record, what we see is one drunk helping another
drunk walk across the wrong side of the bridge at the border
in a late night search for more beer. Even the IJ conceded in
his decision that Carbajal-Gonzalez's motivation in "helping
Jorge enter the United States in violation of law is not
clear." Because there is a lack of evidence that Carbajal-
Gonzalez intended anything more than a round trip to the
supermarket to buy beer, we cannot accept on this record that
16
CONCLUSION
Under the Fleuti analysis and its Fifth Circuit progeny, the
evidence does not show that Carbajal-Gonzalez entered the United
States as required by 8 U.S.C. § 1251(a)(1). Therefore, as a
matter of law, neither of the Section 1251(a)(1) charges against
Carbajal-Gonzalez in the Order to Show Cause is supported by the
record. Accordingly, we VACATE the deportation order and REVERSE
the Board's decision.
VACATED and REVERSED.
Carbajal-Gonzalez was of the state of mind to formulate a
knowing plan to smuggle aliens, particularly in the light of
the fact that he believed his friend to be a documented (not
an illegal) alien.
17