dissenting.
I disagree with the majority’s conclusion that Tapucu did not “knowingly ... assist ] ... [an] alien ... to enter the United States in violation of law,” under 8 U.S.C. § 1182(a)(6)(E)(i). The majority relies on Tapucu’s testimony that he thought Deveci could lawfully reenter the country, and concludes the anti-smuggling statute requires something more than openly presenting an alien to border officials with accurate identification and citizenship papers. I believe that substantial evidence does support the IJ’s conclusion that Tapucu was excludable from the U.S. and would affirm the decision of the Board.
First, the evidence in this case, both direct and circumstantial, supports the conclusion that Tapucu knew Deveci could not lawfully enter the U.S. See Sanchez-Marquez v. U.S. INS, 725 F.2d 61, 63 (7th Cir.1984)(allowing proof by circumstantial evidence that petitioner knowingly assisted seven aliens to enter the U.S.). In Vasquez-Araujo v. Ashcroft, 107 Fed.Appx. *744155 (9th Cir.2004), the court upheld a Board decision to exclude petitioner where petitioner drove his alien-cousin over the border and petitioner knew his cousin could not legally enter the U.S. Tapucu arguably provided more assistance to De-veci than the smuggler in Vasquez.1 Ta-pucu drove the van in an attempt to take Deveci, who he knew to be living in the U.S. illegally, over the border. If driving is not assistance under the smuggling statute, one is left to wonder what assistance means.
A person seeking admission as a visitor who intends to reside in the U.S. and who does not have a residence abroad is inadmissible to the U.S. See INA § 101(a)(15)(B), 8 U.S.C. § 1101(a)(15)(B). An alien must reside in a foreign country and not intend to abandon that residence to be admitted under this section. Id.
Tapucu knew that Deveci could not enter the U.S. lawfully as a visitor when his intent was to remain in the U.S. permanently. In response to an officer’s question regarding how he expected Deveci to re-enter (the U.S.) lawfully, Tapucu responded that “[h]e did it before.” The majority seemingly states that “it” modifies “lawfully,” and therefore, Tapucu thought Deveci had the right to enter the U.S. lawfully and was not knowingly assisting his entry in violation of law. However, Tapucu’s next statement, “I don’t know how, but he did it,” supports the IJ’s conclusion. Tapucu’s second statement tends to show that he knew Deveci had crossed the border unlawfully in the past and that Tapucu did not know how Deveci did it, or that he did not know how he thought Deveci would sneak past immigration officials on that occasion as well. Furthermore, following the majority’s reasoning, any alien who drives another alien openly to the border, without compensation, and claims that he thought the alien could enter the U.S. legally could escape scot-free.
The majority correctly states that a mistaken belief regarding Deveci’s entry to the U.S. would be a defense to ineligibility for a suspected smuggler. See 9 U.S. Department of State Foreign Affairs Manual § 40.65 n. 4 (1995)(interpreting “knowingly” under the smuggling statute). Under the facts of this case, it is clear that any “belief’ Tapucu had pertaining to Deveci’s entry being legal was at best objectively unreasonable. While Tapucu’s knowledge of Deveci’s illegal U.S. residence and his periodic employment of Deveci may not prove his intent by itself, it does tend to make it more likely that any belief regarding the legality of Deveci’s entry into the U.S. would be unreasonable.
Second, the majority’s conclusion that Tapucu must have committed a “compen-sable” act is unwarranted. The statute once required that an alien provide assistance “knowingly and for gain,” but Congress deleted the “for gain” language from the statute with the passage of the Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat. 4978; see also, Matter of Compean-Guevara, 21 I. & N. Dec. 51, 52-55 (BIA 1995). The words of the statute are clear; there is no requirement that petitioner commit a “compensable” act. In stating that petitioner must commit a “compensable” act, the majority seems to read a requirement into the statute that Congress specifically removed.
Third, while Tapucu may not fit the stereotypical image of an alien “smuggler,” *745the fact that Tapucu took no steps to conceal Deveci is not relevant in determining whether Tapucu was excludable. See 8 U.S.C. § 1182(a)(6)(E)(i); see also, Compean-Guevara, 21 I. & N. Dec. 51, 52-55. Tapucu had to knowingly commit one of the acts listed in the statute. While the majority cites Webster’s Third New International Dictionary for the proposition that Tapucu was not a smuggler because he did not attempt to get Deveci into the U.S. secretly or illicitly, the words of the statute are clear. There is no requirement that one do anything “secretly” or “illicitly,” in order to be convicted under the statute. Id; see also De Jesus v. INS, 312 F.3d 155, 161 (5th Cir.2002)(recognizing that one need not smuggle surreptitiously or by evading inspection to be excluded under the statute). Furthermore, Webster’s Third New International Dictionary also defines smuggling as “bringfing] into or tak[ing] out of a country contrary to law and with a fraudulent intent.” Webster’s Third New International Dictionary 2153 (2003). Tapucu attempted to do exactly what Webster’s defines as smuggling as he drove Deveci to the border hoping Deveci would enter the U.S. illegally. Id.
Fourth, I do not agree with the majority’s interpretation of United States v. Perez-Gonzalez, 307 F.3d 443, 445 (6th Cir.2002)(interpreting the criminal alien smuggling statute). In affirming the district court’s refusal to grant defendant an acquittal, the court looked at all the credible evidence available. Id. True, the court did find that the defendant hid passengers in his car and was compensated for his services. However, the court in Perez-Gonzalez did not hold that something more than driving is required to be guilty under the criminal-alien-smuggling statute. Rather, the court reiterated its prior holding in United States v.1982 Ford Pick-Up, 873 F.2d 947 (6th Cir.1989), stating that it is necessary to look at all credible evidence in discerning intent.
While I recognize this is a close case, I believe substantial evidence supports the IJ’s conclusion that Tapucu knowingly assisted Deveci’s attempted illegal entry into the U.S. Tapucu never stated that he thought it was legal for Deveci to cross the border. Tapucu attempted to drive Deveci across the border, knowing he did not have a legal right to live in the U.S., and knowing Deveci was seeking entry as a temporary visitor when he had no intention of returning to Canada. Tapucu employed Deveci and sent the checks to Deveci’s mother in her name. Tapucu failed to reveal Deveci’s status as an illegal immigrant to the officers in hopes of helping him enter the U.S., a fact of which Tapucu was admittedly aware. All the evidence in this case, when viewed together, supports the conclusion that Tapucu knowingly assisted Deveci’s attempted entry into the U.S. within the meaning of 8 U.S.C. § 1182(a)(6)(E)(i). Therefore, because I believe that substantial evidence supports the IJ’s conclusion that Tapucu is excluda-ble from the U.S., I respectfully dissent.