dissenting:
The majority opinion correctly states that the BIA’s conclusion that Ms. Chambers violated the alien-smuggling statute is based on the agency’s finding that Ms. Chambers had knowledge of Woolcock’s illegal scheme. The majority opinion also acknowledges — and I agree — that the BIA improperly concluded that Ms. Chambers must have known that Woolcock’s reentry was illegal based on her stated belief that he had been in the country within the last seven years. As the majority notes, if Ms. Chambers believed that Woolcock could reenter the country any time after ten years had passed since his 1990 deportation, whether Woolcock had previously violated the imagined ten-year period says nothing about what Ms. Chambers necessarily believed or knew regarding the propriety of his entry in 2003.
I depart from the majority’s opinion, however, because the BIA’s decision also makes it clear that the agency’s erroneous finding — that Ms. Chambers had knowledge of Woolcock’s possible prior reentry — was the major ground for its decision. While the BIA also “found no clear error” in the IJ’s finding that Ms. Chambers’ “deception at the border reflected guilty knowledge,” the BIA did not state that Ms. Chambers’ misrepresentations provided an alternative basis for its decision. Based on this record, therefore, I believe we should review the decision on its stated grounds. SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (“a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.”); see also Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 106 (2d Cir.2006).
Moreover, Ms. Chambers corrected or recanted each of her misrepresentations during the customs investigation, and ultimately provided correct information at the border during the investigation. Accordingly, it seems to me that this case is more like the case cited by the majority, Li Zu Guan v. INS, 453 F.3d 129 (2d Cir.2006), where the court remanded because it could not be “certain that the errors below did not play a role in the decision to deny relief.” Id. at 141. As in Li Zu, the agency’s error here played at least “a role in the decision to deny relief.” Id. Furthermore, as the court in Tapucu explained, there is nothing “illegal about driving a known illegal alien with admittedly authentic papers to the American border for examination by the border guards.” Tapucu v. Gonzales, 399 F.3d 736, 739-40 (6th Cir.2005); see also Doe v. Gonzales, 484 F.3d 445, 449-50 (7th Cir.2007) (noting that presence at the scene of persecution may not constitute “assistance” in the absence of support or encouragement, and further noting that aiding in a cover-up without advance participation in planning such a cover-up also does not constitute assistance in the actual scheme). As a result, I cannot say with confidence that the BIA would have reached the same result in the absence of error, and it seems to me that the BIA should be given the opportunity to weigh the exculpatory evidence and make an initial error-free determination as to whether relief is appropriate.
Finally, in order to support a conclusion that Ms. Chambers actually assisted in an illegal entry in violation of Section 212(a)(6)(E)®, the majority relies on a *281hypothetical finding — that “Chambers traveled to Canada with the pre-planned intent to bring Woolcock across the border in her car upon her return, and she actively sought to mislead customs officials about Wooleoek’s residency status in a way that, if believed, would have made it easier for him to enter the United States.” To find a violation of the statute, however, requires more than a hypothetical finding that the petitioner’s actions “would have made it easier;” it requires that the actions actually assisted, abetted or aided. Perhaps more importantly, the agency made no such finding. Rather, the BIA made the more nuanced and limited conclusion, upon which it did not rely to find a violation of the statute, that Ms. Chambers “arranged to meet with Mr. Woolcock, an alien previously deported from the United States as an aggravated felon, at her family’s home in Canada so that he could travel to the United States with her and her brother by car.” In re Michelle A. Chambers, A 56 034 092, at 1-2. Similarly, with regard to the majority’s claim of deception, the agency found only that “... despite the respondent’s alleged belief that the [sic] Mr. Woolcock could legally enter the United States, the record reflects that the respondent made several misrepresentations to the immigration officials in secondary inspection.... Specifically ... [Chambers] told [the Agent] that all three of the passengers in the car had traveled to Canada together and that they all lived together in Long Island, New York.” Id. at 2. As noted above, Ms. Chambers later corrected or recanted these statements and ultimately provided correct information at the border during the investigation. It does not seem to me that it is our role to expand the agency’s findings in order to support its conclusion.