Carbajal-Gonzalez v. Immigration & Naturalization Service

United States Court of Appeals,

Fifth Circuit.

No. 94-40411.

Carlos Alberto CARBAJAL-GONZALEZ, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

March 27, 1996.

Petition for Review of Order of Immigration and Naturalization
Service.

Before JOLLY, DUHÉ and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

We reverse the INS order of deportation in this case.

An immigration judge ordered Carlos Alberto Carbajal-Gonzalez

deported to Mexico for violations of the Immigration and

Nationality Act (the "Act"). The Board of Immigration Appeals

affirmed the deportation order. Concluding that, as a matter of

law, Carbajal-Gonzalez did not "enter" the United States within the

meaning of the Act, we reverse.1

I

Carbajal-Gonzalez was granted lawful permanent resident status

in the United States on November 27, 1991. He is a twenty-five

year old native and citizen of Mexico. He lives in El Paso, Texas.

His wife is a United States citizen. He teaches folk dancing in

Ciudad Juarez, Mexico, and has crossed the U.S.-Mexican border many

1
Because we reverse the deportation order on the ground that
there was no "entry" under the Act, we do not address Carbajal-
Gonzalez's remaining arguments.

1
times by presenting his valid immigration document.

On October 29, 1992, Carbajal-Gonzalez and his wife went to a

party in a bar after a dance recital in Juarez. Jorge Rodriguez-

Alvidrez was a student in Carbajal-Gonzalez's dance class. He was

also at the party. Carbajal-Gonzalez decided that he wanted to buy

more beer. Because of the late hour, he believed that he could

only do so in the United States. Rodriguez-Alvidrez offered to

help Carbajal-Gonzalez in purchasing the beer. At first, Carbajal-

Gonzalez declined the offer, but he then acquiesced. Rodriguez-

Alvidrez was not a United States citizen, and that night he carried

no documentation on his person that would allow him to enter the

United States legally. It is unclear whether Rodriguez-Alvidrez

did, in fact, possess such documents. Carbajal-Gonzalez's wife

drove the two men to the Bridge of the Americas Port of Entry, and

she kept her husband's immigration document. The two men, both

inebriated, got out of the car and walked across the bridge on the

side opposite to the inspection facilities. Neither man passed

through inspection. Carbajal-Gonzalez's wife drove across the

bridge and picked up her husband and Rodriguez-Alvidrez on the U.S.

side. Shortly thereafter, the border patrol arrested the two men.

An Order to Show Cause issued, which charged Carbajal-Gonzalez

with entry without inspection under 8 U.S.C. § 1251(a)(1)(B) and

smuggling aliens under 8 U.S.C. § 1251(a)(1)(E)(i).2 After finding

2
Specifically, the pertinent portions of the statute provide:

§ 1251. Deportable aliens

(a) Classes of deportable aliens

2
that the charges in the Order to Show Cause were supported by

clear, unequivocal and convincing evidence, the immigration judge

(the "IJ") ordered that Carbajal-Gonzalez be deported. The Board

of Immigration Appeals (the "Board") affirmed the order and

dismissed Carbajal-Gonzalez's appeal. Carbajal-Gonzalez now

petitions this court for review.

II

On appeal, Carbajal-Gonzalez argues that the evidence of an

entry without inspection and of smuggling is insufficient to meet

Any alien (including an alien crewman) in the United
States shall, upon the order of the Attorney General, be
deported if the alien is within one or more of the
following classes of deportable aliens:

(1) Excludable at time of entry or of adjustment of
status or violates status

...

(B) Entered without inspection

Any alien who entered the United States without
inspection or at any time or place other than as
designated by the Attorney general or is in the
United States in violation of this chapter or any
other law of the United States is deportable.

...

(E) Smuggling

(i) In general

Any alien who (prior to the date of entry, at the
time of any entry, or within 5 years of the date of
any entry) 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 deportable.

8 U.S.C.A. § 1251(a)(1)(B), (E)(i) (West Supp.1995)

3
the required burden of clear, unequivocal and convincing evidence.

On the other hand, the Immigration and Naturalization Service (the

"INS") argues that substantial evidence supports the order of

deportation. More specifically, the INS urges that Carbajal-

Gonzalez's own admissions prove that he aided and abetted an

alien's illegal entry into the United States; therefore, within

the meaning of the Act, Carbajal-Gonzalez's return to the United

States was an "entry" without inspection, and his assistance of

Rodriguez-Alvidrez constituted a smuggling. The INS further argues

that this court's review of the Board's decision is limited by the

substantial evidence standard. Therefore, we may reverse the

deportation order only if the evidence compels the conclusion that

the Board's decision was wrong.

We shall first discuss the applicable standard of review, then

briefly review the body of relevant United States Supreme Court and

Fifth Circuit case law, and finally turn to the merits of this

appeal.

III

A

Generally, in immigration cases, we review only the decision

of the Board, not that of the IJ. Ogbemudia v. I.N.S., 988 F.2d

595, 598 (5th Cir.1993) (footnote omitted). The Board conducts a

de novo review of the administrative record, and we consider the

errors of the IJ only to the extent that they affect the Board's

decision. Id. We sustain an order of deportation if it is

supported by "reasonable, substantial, and probative evidence on

4
the record considered as a whole." 8 U.S.C. § 1105a(a)(4); see

also Woodby v. I.N.S., 385 U.S. 276, 281-82, 87 S.Ct. 483, 486, 17

L.Ed.2d 362 (1966). The substantial evidence standard "requires

only that the Board's conclusion be based upon the evidence

presented and that it be substantially reasonable." Wilson v.

I.N.S., 43 F.3d 211, 213 (5th Cir.1995) quoting Animashaun v.

I.N.S., 990 F.2d 234, 237 (5th Cir.1993), cert. denied, --- U.S. --

--, 114 S.Ct. 557, 126 L.Ed.2d 458 (1993). We review factual

conclusions of the Board for substantial evidence. Ozdemir v.

I.N.S., 46 F.3d 6, 7 (5th Cir.1994), citing Silwany-Rodriguez v.

I.N.S., 975 F.2d 1157, 1160 (5th Cir.1992). We will affirm the

Board's decision unless the evidence compels a contrary conclusion.

Ozdemir, 46 F.3d at 8. In other words, the alien must show that

the evidence was so compelling that no reasonable factfinder could

conclude against it. Chun v. I.N.S., 40 F.3d 76, 78 (5th Cir.1994)

citing I.N.S. v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 817,

117 L.Ed.2d 38 (1992); Silwany-Rodriguez, 975 F.2d at 1160. This

court reviews conclusions of law de novo (although with the usual

deference to the Board's interpretations of ambiguous provisions of

the Act in accordance with Chevron U.S.A. Inc. v. Natural Resources

Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694

(1984)).

As noted, we may review actions of the IJ only when they have

some impact on the Board's decision. Chun v. I.N.S., 40 F.3d 76,

78 (5th Cir.1994) citing Adebisi v. I.N.S., 952 F.2d 910, 912 (5th

Cir.1992). In the instant case, the IJ failed to apply properly

5
the Supreme Court doctrine set forth in Rosenberg v. Fleuti, 374

U.S. 449, 462, 83 S.Ct. 1804, 1812, 10 L.Ed.2d 1000 (1963), as that

doctrine has been developed by this circuit's precedent discussed

below. This failure resulted in an evidentiary proceeding and

legal decision that focused upon isolated events occurring after

Carbajal-Gonzalez left the United States to the exclusion of all

other relevant factors. See Rivas-Martinez v. I.N.S., 997 F.2d

1143, 1146 (5th Cir.1993). Rather than correct this error, the

Board adopted the IJ's misapplication of the doctrine and failed to

perform the proper weighing of critical factors and circumstances

that our precedent requires. Because the substantial evidence

standard of review implicitly presumes that the Board performed the

proper legal analysis, that standard cannot apply to our review of

this appeal. Id. Instead, we review de novo the Board's

interpretation and application of our precedent. Id.

B

The government brought two charges against Carbajal-Gonzalez:

illegal entry without inspection and alien smuggling. 8 U.S.C. §

1251(a)(1)(B), (E)(i). A prerequisite to both charges is that

Carbajal-Gonzalez must have made an "entry" into the United States

as defined in 8 U.S.C. § 1101(a)(13). Contrary to the ordinary use

of the word "entry," the requirement of an "entry" under the Act is

a term of art in judicial parlance, which must be understood in the

context of the resident alien's subjective intent at the time of

departure from the United States. Fleuti, 374 U.S. at 461-63, 83

S.Ct. at 1812; see also, e.g., Vargas-Banuelos v. I.N.S., 466 F.2d

6
1371, 1372-74 (5th Cir.1972). We look to the alien's intent

because, for purposes of the Act, a lawful permanent resident alien

does not make an "entry" (actually re-entry) into the United States

if "the alien proves to the satisfaction of the Attorney General

that his departure ... was not intended...." 8 U.S.C. §

1101(a)(13). Because a review of the "judicial gloss" that now

surrounds this term of art will facilitate a better understanding

of our holding in this case, we begin by revisiting the standard

announced by the Supreme Court in Fleuti and by examining the Fifth

Circuit progeny that has followed.

C

Under what has come to be known as "the Fleuti doctrine," the

United States Supreme Court held that a resident alien does not

effect an "entry" for the purposes of 8 U.S.C. § 1101(a)(13) when

he returns from an "innocent, casual, and brief excursion" outside

the United States; instead, such an alien effects an entry only if

he intended to depart in a manner "meaningfully interruptive" of

the alien's permanent residence. Fleuti, 374 U.S. at 462, 83 S.Ct.

at 1812, explained in Molina v. Sewell, 983 F.2d 676, 679 (5th

Cir.1993). Rejecting as contrary to congressional intent a

"woodenly construed" entry doctrine, the Supreme Court set forth

three factors to be considered in determining whether an alien had

the requisite intent to effect a meaningful interruption of

permanent residence status: (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,

7
with an emphasis on whether the purpose was contrary to immigration

policy. Fleuti, 374 U.S. at 461-62, 83 S.Ct. at 1811-12. The

Court indicated, however, that its list of factors was not

exhaustive and remained to be developed by judicial inclusion and

exclusion. Id. at 462, 83 S.Ct. at 1812.

This circuit first applied the Fleuti doctrine in Yanez-

Jacquez v. I.N.S., 440 F.2d 701 (5th Cir.1971). In that case, a

resident alien, who was armed with an ice pick, made a short trip

into Juarez for the stated purpose of avenging an assault and

robbery that had been committed against him. We concluded, under

Fleuti, that Yanez-Jacquez had not "entered" the United States when

he discovered a few hours after his departure that he had forgotten

his alien registration card and waded back across the river to

retrieve it. In reaching this result, the court weighed the Fleuti

factors (i.e., his "less than salutory purpose" in departing versus

the brief duration of his trip, the numerous short round-trip

visits that he habitually made between Mexico and the United States

and his possession of a Border Crossing Identity Card, which he

failed to carry on the occasion in question). On balance, we

concluded that the latter factors outweighed Yanez-Jacquez's

illicit purpose upon departure and that he did not intend to

"interrupt in any meaningful manner his status as a permanent

resident alien." Id.

A more straight-forward set of facts arose in Solis-Davila v.

I.N.S., 456 F.2d 424 (5th Cir.1972), a case that we decided on

summary calendar. The petitioner, Solis-Davila, left the United

8
States with the express intent of smuggling Mexican aliens into

this country. He executed the crime and then reentered the United

States, where he received payment for his work. Solis-Davila pled

guilty to alien smuggling and was sentenced. His guilty plea was

corroborated by the overwhelming sworn testimony of third-parties.

Looking to Fleuti, we easily distinguished Solis-Davila's criminal

intent and conduct, which permeated his trip southward, from the

short, innocent trip abroad that was made by the petitioner in

Fleuti. Id. at 426-27. A unanimous panel affirmed the deportation

order.

We examined the "entry" doctrine with closer scrutiny in

Vargas-Banuelos v. I.N.S., 466 F.2d 1371 (5th Cir.1972). In

Vargas-Banuelos, a resident alien traveled to Juarez, Mexico, to

pay a condolence call on a family member. While in Juarez, four

Mexicans asked Vargas-Banuelos to help them enter illegally into

the United States and then travel to Chicago. Vargas-Banuelos

agreed to help them, accepted payment, and arranged for someone to

meet and assist the four illegal aliens in El Paso, Texas. Vargas-

Banuelos was arrested in Texas and convicted in a federal district

court of aiding and abetting alien smuggling. The Board later

ordered Vargas-Banuelos deported, and this court reversed. In our

review of the Board's decision, we first examined Fleuti and its

application in Yanez-Jacquez and Solis-Davila. Weighing factors

such as Vargas-Banuelos's brief trip, his lawful return into the

United States and his innocent state of mind at the time of his

departure against the criminal activity in which he eventually

9
engaged, we reasoned that "[u]nder Fleuti and its progeny in this

circuit, the failure of the Government to show a criminal purpose

prior to petitioner's departure is fatal to its case." Vargas-

Banuelos, 466 F.2d at 1373-1374.

A few years later, in Laredo-Miranda v. I.N.S., 555 F.2d 1242

(5th Cir.1977), we once again examined the Fleuti doctrine and its

evolution in Fifth Circuit precedent. We observed that, standing

alone, neither (1) the act of returning to the United States by

wading across a river rather than by way of an authorized

checkpoint; nor (2) a post-departure formation of intent to aid

illegal aliens followed by a return through a proper checkpoint,

renders a resident alien's departure "meaningfully interruptive" of

his residence so as to constitute an "entry." Laredo-Miranda, 555

F.2d at 1245-46, discussing Yanez-Jacquez v. I.N.S., 440 F.2d at

701 and Vargas-Banuelos, 466 F.2d at 1371. The particular facts of

Laredo-Miranda fell between these two developing principles.

In Laredo-Miranda, a lawful resident alien crossed the border

into Juarez, Mexico, to have a meal with his girlfriend and her

family. He traveled with a companion who intended to smuggle a

group of illegal aliens into the United States. Laredo-Miranda,

however, had no such criminal intention upon leaving the United

States. When returning, Laredo-Miranda discovered that he had

forgotten his alien registration card. Rather than explain his

mistake to the border officials, Laredo-Miranda decided to wade

across the river with the group of illegal aliens. He first waded

solo into the river—presumably to "test the waters" for the

10
presence of the border patrol. When no authorities appeared, he

returned to the Mexican riverbank and, leading the group of five

aliens, waded across a second time. Laredo-Miranda proceeded to

guide the group of illegal aliens across the border at an

unauthorized location.

Under Fleuti, we weighed Laredo-Miranda's short visit to

Mexico and his innocent intentions upon leaving the United States

against his wholly voluntary and active ferrying of a group of

illegal aliens into the United States. We concluded that a

meaningful interruption in his permanent residence status had

occurred. In reaching this conclusion, we factually distinguished

the case from Vargas-Banuelos:

Vargas-Banuelos crossed into Mexico and recrossed legally;
apparently neither the duration of his visit nor the manner of
his return were affected by his extra-territorially acquired
intention to commit a crime upon his return, and he committed
no act in furtherance of the conspiracy into which he had
entered while in Mexico until after his wholly lawful return
to the United States.

Laredo-Miranda, on the other hand, was an active and most
essential participant in bringing illegal aliens into this
country at the precise time of his covert crossing by way of
the river.... We can conceive of little which would be more
indicative of an alien's intent to disrupt his status as a
lawful resident than a fully consummated intent, even if
formed after departure from this country, to participate
actively in bringing illegal aliens into the United States
while himself coming in by the same illicit route.

Laredo-Miranda, 555 F.2d at 1245-46.

Although we upheld the order of deportation in Laredo-Miranda,

we declined to adopt the bright-line rule proposed by the INS at

oral argument: namely, that any resident alien who crosses into

the United States without presenting himself at a border checkpoint

11
makes an "entry" under the Act. We observed that the holding of

Yanez-Jacquez bound us to a less rigorous interpretation of the

Act. Id. at 1245 n. 6.

What is clear from the precedent in this circuit, including

our analysis in Laredo-Miranda, is that a careful balancing of the

Fleuti factors (as modified by our precedent and any peculiar facts

of the case at hand) must be performed in deciding whether an

"entry" under the Act has occurred. The holding of Laredo-Miranda

cannot be construed to liberate us from this analysis. To the

contrary, our decision in Laredo-Miranda actually expands upon this

balancing process by suggesting a new factor for our consideration:

a resident alien's fully consummated intent to participate actively

in alien smuggling, whether formed prior to or after departure from

the United States. Accordingly, in line with Fleuti and its Fifth

Circuit progeny, we turn to balance the factors critical to this

case so that we might determine whether Carbajal-Gonzalez intended

to bring about a meaningful interruption in his permanent resident

status.

IV

The evidence in the record before us consists primarily of

Carbajal-Gonzalez's sworn statement to a border patrol agent at the

time of his arrest and the deportation hearing testimony of

Carbajal-Gonzalez, his wife, and mother-in-law. At the hearing,

Carbajal-Gonzalez appeared pro se and required an interpreter to

translate from English to Spanish during the proceeding. The

evidence pertinent to our analysis under Fleuti reveals that

12
Carbajal-Gonzalez maintained his home in El Paso, Texas, with his

wife, a United States citizen. Carbajal-Gonzalez taught classes at

a dance school in Juarez, Mexico, and entered many times into the

United States by showing his immigration card. According to his

deportation hearing testimony, he was, on the night in question,

with his wife at a party and a dance in Juarez. The government

does not challenge that the purpose of his visit to Mexico was

purely social. Carbajal-Gonzalez left the party in Juarez with his

wife and one of his dance students, Rodriguez-Alvidrez, to buy more

beer in the United States. The testimony indicates that both

Carbajal-Gonzalez and his wife believed Rodriguez-Alvidrez to be a

documented alien, although without documents on his person at the

time. The government neither rebutted this testimony nor offered

any evidence regarding Rodriguez-Alvidrez's status for immigration

purposes. The hearing testimony indicates that the two men were

inebriated and intended to cross the border into the United States,

buy beer and return to the party in Juarez.3 Carbajal-Gonzalez's

wife drove them to the bridge at the border. She argued with her

husband and kept his "papers." The two men got out of the car and

walked across the bridge without going through inspection.

In sharp contrast to the evidence of a fully consummated

intent to commit a crime and the ensuing criminal conduct in

Laredo-Miranda and Solis-Davila, the case here presents a set of

3
Carbajal-Gonzalez's arrest statement indicates that they
planned to ride around after buying the beer. At his deportation
hearing, he corrected this statement as an inaccuracy in the sworn
statement and stressed that they intended to buy the beer and
return to the party in Juarez.

13
facts that could hardly be less prosecution-worthy. The IJ's error

in his legal analysis, under a misguided interpretation of Laredo-

Miranda, was his disregard of the full panoply of Fleuti factors.

Ignoring any positive factors presented by Carbajal-Gonzalez in his

pro se defense, the IJ focused solely on concluding that Carbajal-

Gonzalez was guilty of alien smuggling. See Rodriguez-Gutierrez v.

INS, 59 F.3d 504, 508-09 (5th Cir.1995) (Board abused its

discretion by failing to give meaningful weight to the positive

equities in the case and by improperly characterizing the negative

equities). Compounding this error, the Board also failed to

perform the careful balancing of the Fleuti factors that our

precedent requires. Instead, the Board rigidly relied upon two

"admissions" that Carbajal-Gonzalez gave in response to the IJ's

questioning at the deportation hearing:

Q: And did you assist [Rodriguez-Alvidrez] in entering the
United States?4

A: Yes.

. . . . .

Q: ... I'm also satisfied that the reason you entered was to
be with this .. [sic] to be with Jorge. You have a card.
That card would entitle you to enter the United States
any time you wanted to. So the only reason you entered
without inspection was so .. [sic] to be with Jorge, to
help him in, correct?

4
As previously noted, Carbajal-Gonzalez testified at the
deportation hearing with the help of an English/Spanish
interpreter. Because we are struck by the number of legal terms of
art that appear in this transcript and are sensitive to the
difficulty of fully comprehending such terms in translation without
the assistance of counsel, we must observe that a verb such as
"assist" when translated into the Spanish may be understood to mean
nothing more than "to accompany." CASSELL'S SPANISH DICTIONARY
(Funk & Wagnalls 1968).

14
 A: Yes.

Record at 4-5, 38, 43.

What the IJ, the Board, and the INS have overlooked are, among

other things: Carbajal-Gonzalez's length of absence from the

United States, the purpose of his junket to Juarez, his stated

intent to buy beer in the United States and return with Rodriguez-

Alvidrez to Juarez, his belief (corroborated by his wife) that

Rodriguez-Alvidrez was a documented alien, the absence of any

evidence that Carbajal-Gonzalez formed a fully consummated criminal

intent to secrete illegal aliens into the United States, and highly

probative portions of Carbajal-Gonzalez's testimony at the

deportation hearing such as:

Q: Is it true that about October the 30th, 1992, you knowingly
encouraged, induced, assisted, aided, and abetted Jorge
Rodriguez-Avidres (phonetic sp.), an alien, to enter the
United States in violation of law?

A: I didn't induce. We were .. [sic] I just met him and we
were talking and we crossed together.

Record at 37.

Having considered the record in its entirety and having had

the benefit of hearing and questioning counsel at oral argument, we

are left with the firm conviction that the resident alien's conduct

in this case is poles apart from that manifested in Laredo-Miranda.

The conduct in Laredo-Miranda was susceptible to only one

interpretation: Laredo-Miranda fully intended to smuggle

undocumented aliens into this country, aliens who intended to

remain and reside in the United States illegally. Laredo-Miranda

then executed upon his criminal intent in an active leadership

15
role. Here, on this record, Carbajal-Gonzalez's senseless conduct

can be viewed as hardly more than a foolish lark, walking a drunk

friend across the wrong side of the Bridge of the Americas without

inspection. Although we certainly do not condone Carbajal-

Gonzalez's failure to carry the proper papers and his attempt to

evade inspection at the border, it is impossible for us to conclude

that this drunken imprudence gave rise to a meaningful interruption

of his permanent residence in this country. We hold, therefore,

that Carbajal-Gonzalez did not "enter" the United States on October

29, 1993, within the meaning of 8 U.S.C. § 1101(a)(13). It follows

that, because there was no "entry" under the Act (an essential

element to both charges levied against Carbajal-Gonzalez), there

was neither an 8 U.S.C. § 1251(a)(1)(B) entry without inspection

nor a smuggling pursuant to 8 U.S.C. § 1251(a)(1)(E)(i).5

5
Although our reversal of the deportation order against
Carbajal-Gonzalez on the ground that there was no "entry" is
dispositive of this appeal, we also observe that the INS has
pursued simultaneously a charge of alien smuggling against
Carbajal-Gonzalez. An alien is excludable pursuant to Section
1251(a)(1) and therefore deportable who "... prior to the date of
entry, at the time of any entry, or within 5 years of the date of
any entry ... 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." 8 U.S.C. § 1251(a)(1)(E)(i). On the
facts before us, there is insubstantial evidence that Carbajal-
Gonzalez knowingly smuggled an alien into the United States. In
other words, the necessary scienter element is missing in this
case.

On this record, what we see is one drunk helping another
drunk walk across the wrong side of the bridge at the border
in a late night search for more beer. Even the IJ conceded in
his decision that Carbajal-Gonzalez's motivation in "helping
Jorge enter the United States in violation of law is not
clear." Because there is a lack of evidence that Carbajal-
Gonzalez intended anything more than a round trip to the
supermarket to buy beer, we cannot accept on this record that

16
 CONCLUSION

Under the Fleuti analysis and its Fifth Circuit progeny, the

evidence does not show that Carbajal-Gonzalez entered the United

States as required by 8 U.S.C. § 1251(a)(1). Therefore, as a

matter of law, neither of the Section 1251(a)(1) charges against

Carbajal-Gonzalez in the Order to Show Cause is supported by the

record. Accordingly, we VACATE the deportation order and REVERSE

the Board's decision.

VACATED and REVERSED.

Carbajal-Gonzalez was of the state of mind to formulate a
knowing plan to smuggle aliens, particularly in the light of
the fact that he believed his friend to be a documented (not
an illegal) alien.

17