United States v. Cuevas-Reyes

*1017COWEN, Circuit Judge,

dissenting

Because nothing in the text of 8 U.S.C. § 1324(a)(l)(A)(iii) requires that the shielding or concealing of an alien be for the purpose of enabling that alien to remain in the United States, I respectfully dissent. There is no reason that § 1324 cannot also prohibit individuals from assisting aliens fleeing the United States. The key is that the individual substantially assisted, or attempted to substantially assist, the alien in avoiding detection. Accordingly, I would find that the evidence supported the conviction and affirm the District Court’s judgment.

On its face, § 1324 prohibits the concealing, harboring, or shielding of any person known to be an alien from detection by the authorities.3 Thus, to establish a violation of the statute as it is written, the Government must only prove three things: (1) an alien entered or was present in the United States in violation of the law; (2) the defendant knew, or recklessly disregarded, the fact that the alien was unlawfully present in the United States; and (3) the defendant concealed, harbored, or shielded the alien from detection.4 In this case, there is no doubt that Dajer Cuevas-Reyes knew that the four women were unlawfully present in the United States. The only question is whether his attempt to smuggle them out of the country constituted concealing or shielding within the prohibitions of § 1324.5

As the majority has pointed out, this Court considered the meaning of concealing, harboring, and shielding in the context of § 1324 in United *1018States v. Ozcelik, 527 F.3d 88 (3d Cir. 2008), and concluded that the terms “encompass[ed] conduct tending to substantially facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting the alien’s unlawful presence.” Id. at 100 (citations and internal marks omitted). However, Ozcelik was decided under different factual circumstances, which inevitably shaped the Court’s holding, and therefore makes its application here somewhat incongruous.

In Ozcelik, the alien, Tuncer, had overstayed his student visa but had no desire to leave the United States. He was put in touch with Ozcelik, who worked for Customs and Border Protection, and was thought to be able to help resolve Tuncer’s immigration issues. The Court had to decide whether the advice that Ozcelik gave Tuncer substantially assisted Tuncer in avoiding detection, thereby enabling him to remain in the United States. Given this inquiry, it is understandable that the Court couched its holding in terms of remaining in the United States — because that is what the alien intended to do, and the only way to remain in the United States was to avoid detection.6

This case presents a different factual scenario than most prosecutions7 under § 1324 because the aliens here were not trying to remain in the *1019United States. But that does not mean that Cuevas-Reyes’s attempt to shield the aliens from detection did not also violate the statute. In this case, none of the four aliens expressed a desire to remain in the United States. Indeed, they were apprehended as Cuevas-Reyes and Eliud Gomez-Garcia were in the process of surreptitiously transporting them back to the Dominican Republic. Thus, it makes little sense to apply the portion of Ozcelik dealing with remaining to this case because the aliens here were leaving the United States, and remaining is not an element of the statute.

Putting aside the fact that in Ozcelik the alien wanted to remain in the United States, Ozcelik is properly read as describing shielding and concealing as conduct that tends to substantially assist an alien in avoiding detection by government authorities. Indeed, this is the correct reading of Ozcelik because nothing in the text of the statute suggests that the Government must prove that the assistance in avoiding detection occurred for the purpose of enabling the alien to remain in the United States. In order to avoid adding an element to the statute, Ozcelik must be understood as positing that an individual violates § 1324 when he provides substantial assistance to an alien in avoiding detection; whether the alien intends to remain or leave the United States is ancillary. Assistance in avoiding detection is sufficient to establish a violation of § 1324.

There is no question that Cuevas-Reyes substantially assisted these four women in avoiding detection by arranging to fly them to the Dominican Republic. Cuevas-Reyes instructed the women to meet him at the north ramp of the airfield because he intended to take them out of the country without clearing customs.8 Smuggling aliens out of the country is the ultimate way to assist them in avoiding detection. All of the elements *1020of the offense are present: Cuevas-Reyes knew that the four women were aliens who were unlawfully present in the United States and he attempted to shield them by “preventing] government authorities from detecting [their] unlawful presence.” Ozcelik, 527 F.3d at 100. This was sufficient evidence for the jury to find that Cuevas-Reyes violated § 1324(a)(l)(A)(iii). The fact that the women were attempting to leave the United States, as opposed to enter or remain, has no impact on the illegality of Cuevas-Reyes’s actions under the plain language of the statute. By inappropriately applying Ozcelik to this case, the majority inadvertently writes a fourth element into the statute and unnecessarily reverses a conviction that should be affirmed.

Section 1324 states that criminal penalties will be imposed on any person who:knowingly or in a reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or means of transportation.

8 U.S.C. § 1324(a)(l)(A)(iii).

Citing precedent from the Court of Appeal for the Fifth Circuit, the majority asserts that the Government must also prove a fourth element: that the defendant’s conduct tended to substantially facilitate the alien remaining in the United States. However, such an element is neither supported by the text of § 1324, nor Ozcelik, which set out to provide insight on what it means to conceal, harbor, or shield, see 527 F.3d at 100. Rather, it appears as if the majority has confused the common interpretation of what constitutes concealing, harboring, or shielding with an independent fourth element.

Harboring is generally understood to relate to providing shelter and is therefore not applicable here. See United States v. Acosta De Evans, 531 F.2d 428, 430 (9th Cir. 1976) (construing “harbor” to mean “afford shelter to”).

. All of the cases from the other Courts of Appeals and from which Ozcelik’s reasoning is drawn, are similar to Ozcelik in that the aliens who were being concealed or shielded wanted to stay in the United States. See, e.g., United States v. Kim, 193 F.3d 567 (2d Cir. 1999) (Defendant instructed his alien employees to file false documents with the INS after their names appeared on list of aliens who lacked proper work authorization.); United States v. Sanchez, 963 F.2d 152 (8th Cir. 1992) (Defendant provided illegal aliens with apartments and false immigration papers.); United States v. Rubio-Gonzalez, 674 F.2d 1067 (5th Cir. 1982) (Defendant warned alien co-workers that immigration officials were at their job site.); United States v. Varkonyi, 645 F.2d 453 (5th Cir. 1981) (Defendant provided employment and lodging to two aliens, and forcibly interfered with INS agents to prevent the aliens’ apprehension.); United States v. Cantu, 557 F.2d 1173 (5th Cir. 1977) (Defendant assisted illegal employees in leaving his place of business when INS agents arrived for an inspection.); United States v. Acosta de Evans, 531 F.2d 428 (9th Cir. 1976) (Defendant provided shelter to unlawfully present aliens.); United States v. Lopez, 521 F.2d 437, 441 (2d Cir. 1975) (Defendant “provid[ed] shelter and other services in order to facilitate the continued unlawful presence of the alien in the United States.”).

See Ozcelik, 527 F.3d at 99 (“[Gjenerally [convictions under § 1324] involve defendants who provide illegal aliens with affirmative assistance, such as shelter, transportation, direction about how to obtain false documentation, or warnings about impending investigations.”). This observation is apt because generally, aliens who come to file United States want to remain in the United States. But, as this case shows, not all aliens share that desire.

Air commerce regulations promulgated by CBP require all aircraft carrying passengers for hire to clear customs before departing the U.S. for a foreign area. 19C.F.R. § 122.61(a)(1) (2007). There is an exception for private aircraft, see 19 C.F.R. §§ 122.26, 122.61 (2007), however because the women paid for their transportation to the Dominican Republic, Gomez-Garcia’s airplane cannot be classified as a private aircraft in this instance. A private aircraft is “any aircraft engaged in a personal or business flight to or from the U.S. which is not carrying passengers and/or cargo for commercial purposes.” 19 C.F.R. § 122.1(h)(1) (2007). When Cuevas-Reyes accepted the women’s money in exchange for transporting them to the Dominican Republic, Gomez-Garcia’s plane was not being used as a private aircraft. Consequently, the aircraft and its passengers were required to clear customs prior to departing the Virgin Islands. See 19 C.F.R. § 122.42 (2007) (“Aircraft leaving the U.S. Virgin *1020Islands for a place other than the U.S. are governed by the provisions of this part that apply to aircraft leaving the U.S. for a foreign area.”).