dissenting:
There is no doubt that the facts underlying this case are unfortunate. It is not even a stretch to call them unfair. Modes-ta’s father, the mastermind and driving force behind the alien smuggling for which Modesta was charged, was ultimately granted cancellation of removal and allowed to stay in the United States. Modesta, who reluctantly participated in the smuggling at the insistence of her father, was ineligible for such relief and found removable. However, we are not free to stretch the law to avoid results that we do not like. In my view, the majority has done so here and I respectfully dissent.
In one respect, the facts of this case nearly mirror those of Altamirano v. Gonzales, 427 F.3d 586 (9th Cir.2005). There, we held that a petitioner’s mere presence in a vehicle with knowledge of a plan to smuggle an undocumented alien across the border in the trunk of the vehicle did not constitute alien smuggling under INA § 212(a)(6)(E)®. Id. at 595-96. We held that INA § 212(a)(6)(E)® is not violated absent “an affirmative act of assistance or encouragement.” Id. at 596. Like the petitioner in Altamirano, Modesta was present in a vehicle and had knowledge of her father’s plan to smuggle two undocumented infants across the border. Modes-ta even sat between the infants. This alone, however, was undoubtedly insufficient to constitute alien smuggling. Id.
However, this case presents facts that Altamirano did not. In addition to her presence in the vehicle, Modesta allowed her father to use her son’s birth certificate to smuggle the undocumented infants. The majority characterizes this agreement as a “reluctant acquiescence” and ultimately holds that acquiescence is not an affirmative act, as required for alien smuggling under Altamirano. I disagree.
I do not necessarily disagree with the majority that acquiescence is not an affirmative act. Legally, acquiescence is defined as “[a] person’s tacit or passive acceptance” or a person’s “implied consent to *1210an act.” Black’s Law Dictionary (8th ed.2004). This definition fits squarely with Altamirano’s holding that mere presence in a vehicle is not an affirmative act even if the petitioner has knowledge of the smuggling. This makes sense. Mere presence in a vehicle with knowledge of alien smuggling is “tacit or passive acceptance” or “implied consent” to the smuggling, but nothing more.
I part ways with the majority, however, at the point at which they characterize Modesta’s actions as “reluctant acquiescence.” Under this definition, Modesta did not “merely” acquiesce to her father’s use of her son’s birth certificate. If, for example, Modesta had seen her father take her son’s birth certificate and said nothing, we could properly characterize her actions as acquiescence because her consent would have been passive or implied. However, that is not what occurred. Modesta actively assisted her father by explicitly agreeing that he could use her son’s birth certificate. Indeed, her father’s repeated requests demonstrate that, for whatever reason, he felt that he could not simply take the birth certificate and leave Modesta out of his plan altogether. Rather, he needed Modesta’s explicit permission before he could use the birth certificate for purposes of alien smuggling. Thus, although the majority’s opinion does not explicitly say so, by holding that Modesta did not commit an affirmative act as required by Altamirano, the majority implies that an oral statement alone can never be an affirmative act. I disagree.
Our analysis in Altamirano focused heavily on the meaning of aiding and abetting because INA § 212(a)(6)(E)(i) “imported] this concept from criminal law and because the alien smuggling provisions of the INA have been generally analyzed as aiding and abetting statutes.” See 427 F.3d at 594. We noted that “[t]he prosecution must prove that the defendant was a participant, and not merely a knowing spectator” and that a person “cannot be convicted of aiding and abetting absent an affirmative act of assistance in the commission of the crime.” Id. at 594-95 (internal quotation marks and citations omitted). We did not, however, hold that an oral statement could never constitute an affirmative act of assistance.
Boiled down, aiding and abetting merely requires that the defendant “engaged in some affirmative conduct designed to aid in the success” of the commission of a crime with “knowledge that his actions would assist the perpetrator.” United States v. Smith, 832 F.2d 1167, 1171-72 (9th Cir.1987) (quoting United States v. Cowart, 595 F.2d 1023, 1031 (5th Cir.1979)). The majority’s holding that this affirmative conduct can never take the form of an oral statement will open a pandora’s box of absurd results. For example, a defendant who says “yes, you can use my house to produce methamphetamine, but I will not open the door for you or participate” would not be guilty of aiding and abetting the manufacture of drugs. Likewise, the defendant who says “yes, you can borrow my shotgun and car so that you can rob a bank” would not be guilty of aiding and abetting as long as he also says “the gun is in the closet and the keys are on the counter — get them yourself.”
Here, Modesta engaged in affirmative conduct (allowing her father to use her son’s birth certificate) designed to assist her father in smuggling undocumented infants into the United States. She did so with the knowledge that her conduct would assist her father. Thus, in my view, Modesta’s agreement that her father could use her son’s birth certificate was “an affirmative act of assistance” sufficient to constitute alien smuggling under INA § 212(a)(6)(E)(i) and Altamirano. The *1211fact that she was “reluctant” to do so and agreed only to avoid disappointing her father does not change this result. I maintain the view that, although it is sometimes difficult, we are not free to adjust the tune of the law any time it does not harmonize with that of our heartstrings.
Because the majority decides as a matter of law that Modesta’s actions did not constitute alien smuggling, it does not reach the question of whether the Immigration Judge’s (IJ) factual findings were supported by substantial evidence. See Ckebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001) (stating standard of review). Because the administrative record contains an offer of proof in which Modesta admits that she agreed to allow her father to use her son’s birth certificate knowing that it would be used for alien smuggling, “any reasonable adjudicator” would not be “compelled to conclude to the contrary” of the IJ’s findings. 8 U.S.C. § 1252(b)(4)(B). Thus, I would deny Modesta’s petition for review.