UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 95-60456
Summary Calendar
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CUTBERTO IBARRA-PINEDO,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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Petition for Review of
Order of Immigration and Naturalization Service
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June 14, 1996
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Cutberto Ibarra-Pinedo petitions for review of the Board of
Immigration Appeals (BIA) order finding him deportable and denying
his requests for suspension of deportation. We deny the petition.
I.
Petitioner, a Mexican citizen, was granted lawful permanent
residence status in the United States in 1990. He lives in Lufkin,
Texas with his family and works at a local factory. Two of his
children are United States citizens but his wife Amelia and his
daughter Griselda are not. However, Amelia and Griselda have
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
obtained permission to live in the United States through the Family
Fairness Program. See Section 301(a) of the Immigration Act of
1990.
On January, 16, 1993, a Saturday, Ibarra traveled from Lufkin
to the border and crossed into Mexico. He intended to return the
next day with his daughter, a United States citizen, so that she
could attend school on Monday. Ibarra’s daughter and his wife had
been in Mexico for fifteen days, tending to his wife's father who
was dying.
Upon arriving in Mexico, Ibarra learned that his wife had
arranged to illegally re-enter the United States that night and had
found two men to help her across the Rio Grande. Apparently, she
had left the United States too suddenly to make arrangements for a
legal return. When Ibarra saw that the men she had found to
accompany her were drunk, he tried to dissuade her from going with
them. But she refused to stay in Mexico alone. Petitioner
testified that he then decided to help her across the river himself
because he was afraid of what the men might do to her. Leaving his
daughter in Mexico, Ibarra crossed the river with his wife and was
arrested by border patrol agents on January 17, 1993.
On January 18, 1993, the Immigration and Naturalization
Service (INS) issued an Order to Show Cause why Petitioner should
not be deported as an alien who had entered the United States
without inspection, a violation of 8 U.S.C. § 1251(a)(1)(b). The
Immigration Judge (IJ) found that Ibarra had entered illegally by
not presenting himself for inspection and that he was deportable on
this charge. She also determined that Petitioner was entitled to
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neither suspension of deportation, under 8 U.S.C. § 1254(a), nor
voluntary departure, under § 1254(e), because he had assisted his
wife in entering the United States illegally.1 He therefore lacked
the “good moral character” required under both provisions.
Ibarra appealed to the Board of Immigration Appeals (BIA). He
argued that he had not made an "entry" because his departure was
brief, casual, and innocent and did not interrupt his permanent
residence. He further argued that the IJ's determination that he
had knowingly aided his wife in illegally entering the United
States was not supported by clear and convincing evidence.
Finally, even if he had entered the United States and had assisted
his wife in doing so, Ibarra contended that, under 8 U.S.C. §
1182(d)(11), he was eligible for a waiver of the application of §
1182(a)(6)(E)(I), the provision rendering him excludable for alien
smuggling. This waiver, in turn, functioned as a waiver of the
finding of lack of good moral character under § 1101(f)(3).
Therefore, argued Ibarra, he was statutorily eligible for
suspension of deportation.
The BIA dismissed Ibarra's appeal. It determined that Ibarra
had made an illegal entry within the meaning of § 1101(a)(3)
because, by aiding his wife to illegally enter the United States,
he had meaningfully interrupted his permanent residence. Moreover,
by meaningfully interrupting his residence, Petitioner could not
establish the seven years of continuous physical presence in the
1
Having concluded that Ibarra was statutorily ineligible
for suspension of deportation, the IJ declined to address whether
the Petitioner had made an "entry" in violation of the Immigration
and Nationality Act.
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United States required to qualify for statutory suspension of
deportation under § 1254(a). Finally, the BIA concluded that
Ibarra was not eligible for a § 1254(e) voluntary departure because
he had admitted to helping his wife illegally cross the Rio Grande.
The BIA rejected Ibarra's argument that a waiver under §
1182(d)(11) applied to waive a finding of lack of good moral
character under § 1101(f).
We review the BIA's factual conclusions for substantial
evidence and will affirm its decision unless the evidence compels
a contrary conclusion. Carbajal-Gonzalez, 78 F.3d at 197. Its
legal conclusions we review de novo. Id. However, we accord
deference to the BIA's interpretation of immigration statutes. Id.
II.
Ibarra presents two general arguments in his appeal. He
contends that he is not eligible for deportation because, on
January 17, 1993, he did not effect an "entry" into the United
States within the meaning of 8 U.S.C. § 1101(a)(13) and Rosenberg
v. Fleuti, 374 U.S. 449 (1963). In the alternative, he claims that
the BIA erred when it declared him statutorily ineligible for
suspension of deportation on grounds that his participation in
alien smuggling precluded the Board from finding him to possess the
good moral character required for this relief. Ibarra challenges
the denial of suspension of deportation in three ways. First, he
argues that the BIA's finding that he assisted his wife to enter
the United States in violation of 8 U.S.C. § 1182(a)(6)(E)(I) is
not supported by substantial evidence. He next contends that he
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could not have been found in violation of 8 U.S.C. §
1182(a)(6)(E)(I) because he was never charged with the offense in
a charging document. Therefore, he had no notice of the charge.
Finally, Petitioner argues that the BIA erred in ruling that a
waiver under 8 U.S.C. § 1182(d)(11) does not remove a finding of
lack of good moral character. We address each in turn.
A.
An alien who enters the United States without inspection is
deportable under 8 U.S.C. § 1251(a)(1)(B). This provision,
however, requires that a resident alien do more than simply cross
the border without inspection. He must make an "entry" within the
meaning of 8 U.S.C. § 1101(a)(3). Carbajal- Gonzalez, 78 F.3d at
197. Ibarra argues that he did not effect such an "entry."
Therefore, he is not deportable.
The Supreme Court has held that a resident alien only effects
an "entry" under § 1101(a)(3) if "he intended to depart in a manner
'meaningfully interruptive'" of his permanent residence. Rosenberg
v. Fleuti, 374 U.S. 449 (1963)). To determine whether a meaningful
interruption has occurred, Fleuti requires that we carefully
balance several factors, among them "(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, with an emphasis on whether the purpose was contrary to
immigration policy." Carbajal-Gonzalez, 78 F.3d at 197 (citing
Fleuti, 374 U.S. at 461-62). These factors, however, are not
exhaustive. Id. More recently, we have recognized that a resident
alien's fully consummated intent to actively engage in alien
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smuggling is an extremely important consideration. See id. at 200
(explaining Laredo-Miranda v. I.N.S., 555 F.2d 1242 (5th Cir.
1977)). That this intent is formed after the alien's departure
from the United States is irrelevant. Id.
Although a number of these factors weigh in Ibarra favor, the
BIA did not err in dismissing his appeal. Petitioner planned only
a short trip to Mexico; he intended to stay there just one night.
The record, moreover, contains no evidence that he was required to
obtain travel documents. On the other hand, the record clearly
demonstrates a fully consummated intent to engage in alien
smuggling. Ibarra testified that he knew his wife could not cross
the border legally and that to assist her in doing so he would have
to break the law. Under our decision in Laredo-Miranda, therefore,
Ibarra effected an "entry" within the meaning of § 1101(a)(3). See
Laredo-Miranda, 555 F.2d at 1245-46 (holding that a lawful resident
alien who had crossed the border to dine with his girlfriend and
who decided to wade the Rio Grande only upon discovering he had
forgotten his green card meaningfully interrupted his permanent
residence status when he assisted a group of aliens who were
attempting to cross the river at the same point); see also
Carbajal-Gonzalez, 78 F.3d at 199-200. The BIA did not err in
holding him deportable under § 1251(a)(1)(B).
B.
Ibarra also challenges the BIA's ruling that he is not
eligible for suspension of deportation under § 1254(a). That
provision requires an alien to establish that he is a "person of
good moral character." Section 1101(f) defines "good moral
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character." In relevant part it states:
For purposes of this chapter . . . No person shall be
regarded as, or found to be, a person of good moral
character who, during the period for which good moral
character is required to be established, is, or was . .
. a member of one or more of the classes of persons,
whether excludable or not, described in paragraphs . . .
(6)(E) . . . of section 1182(a) of this title . . . if
the offense described therein, for which such person was
convicted, or of which he admits the commission, was
committed during such period. . . . The fact that any
person is not within any of the foregoing classes shall
not preclude a finding that for other reasons such person
is or was not of good moral character.
Paragraph (6)(E) of section 1182(a) lists classes of "excludable
aliens." Among the excludable are "smugglers," described as "[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 is excludable." §
1182(a)(6)(E)(I).
Under this statutory scheme, Ibarra is not eligible for
suspension of deportation if he assisted his wife in illegally
entering the United States. He argues, therefore, that the BIA
finding that he participated in smuggling is not supported by
substantial evidence. As the IJ pointed out, however, the evidence
that Ibarra assisted his wife in illegally entering the United
States is "overwhelming." The Petitioner admitted to accompanying
her so that she would not be forced to rely on assistance from two
men whom he considered drunken and untrustworthy. Ibarra assisted
his wife in crossing the river, and assistance is all that is
required to violate § 1182(a)(6)(E)(I).
Ibarra also suggests that he should not have been found
excludable under § 1182(a)(6)(E)(I) because he was never charged
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with smuggling in a charging document. This argument is specious.
Section 1101(f) requires only that Petitioner admit to
participation in smuggling. More importantly, Ibarra failed to
present this argument to the BIA; therefore, it is not properly
before us. See Mamoka v. I.N.S., 43 F.3d 184, 187 (5th Cir. 1995).
Finally, Ibarra contends that, even if he is technically
excludable under § 1182(a)(6)(E)(I), he is eligible for a waiver of
this exclusion under § 1182(d)(11). This waiver provision
provides:
The Attorney General may, in his discretion for
humanitarian purposes, to assure family unity, or when it
is otherwise in the public interest, waive application of
clause (I) of subsection (a)(6)(E) of this section in the
case of any alien lawfully admitted for permanent
residence who temporarily proceeded abroad voluntarily
and not under an order of deportation, and who is
otherwise admissible to the United States as a returning
resident under section 1182(b) of this title and in the
case of an alien seeking admission or adjustment of
status as an immediate relative or immigrant under
section 1153(a) of this title (other than paragraph (4)
therefore) if the alien has encouraged, induced,
assisted, abetted, or aided only the alien's spouse,
parent, son, or daughter (and not other individual) to
enter the United States in violation of law.
§ 1182(d)(11). Petitioner argues that this provision waives a
finding of lack of good moral character under § 1101(f)(3) because
it "waives application" of § 1182(a)(6)(E)(I), thereby wiping out
all negative legal consequences of that provision. One of those
consequences is, of course, the requirement that INS consider all
individuals who admit to smuggling described in § 1182(a)(6)(E)(I)
as persons lacking in good moral character. See § 1101(f)(3).
Petitioner contends, therefore, that the BIA erred in ruling him
statutorily ineligible for suspension of deportation under §
1254(a) because it did not apply the waiver provision to extinguish
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the finding of lack of good moral character. The INS responds that
the waiver provision of § 1182(d)(11) does not affect a good moral
character determination under § 1101(f)(3).
The plain language of § 1101(f)(3) supports the BIA's
interpretation of the statute. Section 1101(f)(3) states that,
"whether excludable or not," no person who is described in §§
1182(a)(2)(D)(prostitution and commercialized vice),
6(E)(smuggling), and 9(A)(polygamy) "shall be regarded as . . . a
person of good moral character." The key words are "whether
excludable or not." The waiver under § 1182(d)(11) provides Ibarra
with a strong argument that he is not "excludable." However, under
the terms of § 1101(f)(3), that fact that he is not excludable does
not make him a person of good moral character and thereby eligible
for suspension of deportation. The BIA did not err in declaring
Petitioner ineligible for suspension of deportation.
III.
For these reasons, we dismiss the petition.
DISMISSED.
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