Aguilar Gonzalez v. Mukasey
2008 U.S. App. LEXIS 15984, 2008 WL 2891149, 534 F.3d 1204 (2008)
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Rule of Law:
To be found inadmissible for assisting in alien smuggling under INA § 212(a)(6)(E)(i), an individual must commit an affirmative act of help, assistance, or encouragement; mere presence and reluctant verbal acquiescence, without more, are insufficient to meet this standard.
Facts:
- Modesta Aguilar Gonzalez, a lawful permanent resident, was approached by her father, Isauro Aguilar Campos, with a plan to bring two undocumented infants into the United States.
- The plan required the use of Modesta's U.S.-citizen son's birth certificate for one of the infants.
- Modesta refused her father's request twice.
- On the third request, concerned that her father would withdraw financial support for her mortgage, Modesta reluctantly said 'yes' to the plan.
- It is not established in the record whether Modesta physically gave her father the birth certificate or if he took it after she verbally agreed.
- Modesta accompanied her father and other relatives in a vehicle to Mexico.
- On the return trip to the U.S. border, Modesta sat in the third row of the vehicle, positioned between the two undocumented infants.
- At the port of entry, the family was stopped by inspectors who suspected the birth certificates presented for the infants were fraudulent.
Procedural Posture:
- The Department of Homeland Security initiated removal proceedings against Modesta Aguilar Gonzalez in Immigration Court, charging her as inadmissible for assisting in alien smuggling.
- Modesta contested removability and filed a motion to terminate the proceedings before the Immigration Judge (IJ).
- The IJ denied the motion to terminate and found Modesta removable.
- Modesta, as the appellant, appealed the IJ's decision to the Board of Immigration Appeals (BIA).
- The BIA affirmed the IJ's decision in a streamlined order.
- Modesta, as the petitioner, filed a petition for review of the BIA's final order with the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does a person's mere presence in a vehicle during an alien smuggling attempt and reluctant verbal acquiescence to the use of her son's birth certificate, without any further physical action, constitute 'assisting' in alien smuggling under INA § 212(a)(6)(E)(i)?
Opinions:
Majority - Fletcher
No. Mere presence and acquiescence do not constitute assisting in alien smuggling under INA § 212(a)(6)(E)(i), which requires an affirmative act of help, assistance, or encouragement. The court relied on its precedent in Altamirano v. Gonzales, which established this 'affirmative act' requirement and analogized the statute to the criminal law concept of aiding and abetting. The court found no substantial evidence that Modesta performed an affirmative act, such as physically handing the birth certificate to her father. Her reluctant verbal statement of 'yes' was characterized as mere acquiescence, which is passive and does not rise to the level of active participation or encouragement needed to violate the statute. Just as riding in a car with knowledge of smuggling was insufficient in Altamirano, Modesta's presence and reluctant agreement were not enough to sustain the charge.
Dissenting - N.R. Smith
Yes. A person's explicit verbal permission that is essential to an illegal scheme constitutes an affirmative act of assistance sufficient for an alien smuggling charge. While agreeing that mere presence is insufficient under Altamirano, the dissent argues that Modesta's actions went beyond passive acquiescence. Her father's repeated requests demonstrate that her explicit permission was necessary for the plan to proceed. By verbally agreeing, she engaged in affirmative conduct designed to aid in the success of the crime. The dissent contends that the majority's holding improperly implies that an oral statement can never be an affirmative act, which would lead to absurd results in other areas of criminal aiding and abetting law.
Analysis:
This decision refines the 'affirmative act' standard required for alien smuggling inadmissibility under INA § 212(a)(6)(E)(i), as established in Altamirano. By distinguishing between passive acquiescence (even if verbalized) and an affirmative physical act, the court raises the evidentiary bar for the government in cases where an individual's involvement is minimal or arguably coerced. The ruling provides a defense for individuals who may have been present and aware of a smuggling scheme but did not actively participate. The dissent, however, highlights a significant legal tension, suggesting the majority's decision could be interpreted to mean that providing crucial verbal authorization for a crime does not constitute 'assistance,' potentially impacting future aiding and abetting jurisprudence.
