An alien’s conviction for aiding and abetting other aliens to evade and elude examination and inspection by immigration officers in violation of 18 U.S.C. § 2(a) and 8 U.S.C. § 1325(a)(2) establishes that the convicted alien is removable under Section 237(a)(1)(E)(i) of INA, 8 U.S.C. § 1227(a)(1)(E)(i).
Where the facts underlying the respondent’s conviction demonstrated that she knowingly assisted other aliens to enter the United States in violation of law, clear and convincing evidence established that she is removable under INA Section 237(a)(1)(E)(i).
The BIA reviews the findings of fact made by the Immigration Judge (IJ) to determine whether they are clearly erroneous and reviews de novo all questions of law, discretion, and judgment, including the question whether the parties have met the relevant burden of proof.
With certain exceptions that are not applicable in the instant case, an alien who 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 removable under INA Section 237(a)(1)(E)(i). By its plain language, the statute does not require the DHS to establish a conviction as the basis for this removal ground.
An ‘entry’ requires: (1) a crossing into the territorial limits of the United States, i.e., physical presence; (2) (a) an inspection and admission by an immigration officer, or (b) an actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint. Further, the act of an entry may include other related acts that occurred either before, during, or after a border crossing, so long as those acts are in furtherance of, and may be considered to be part of, the act of securing and accomplishing the entry.
The offense of eluding examination or inspection by immigration officers in violation of 8 U.S.C. § 1325(a)(2) is consummated at the time an alien gains entry through an unlawful point and does not submit to these examinations. Under INA Section 237(a)(1)(E)(i), the Government is not required to demonstrate either that the accused individual actually transported the aliens into the United States or that he personally made the arrangements with the smuggler. The statute’s plain language unquestionably applies to a broader array of conduct. An individual may knowingly encourage, induce, assist, abet, or aid with illegal entry, even if he did not personally hire the smuggler and even if he is not present at the point of illegal entry. Thus, the statute was intended to cover a broad range of conduct, and direct participation in the physical border crossing is not required under INA Section 237(a)(1)(E)(i). Therefore, because the respondent was convicted of aiding and abetting another alien to enter or try to enter the United States in violation of law, it necessarily follows that her conviction established, by clear and convincing evidence, that she is removable under INA Section 237(a)(1)(E)(i) as an alien who knowingly encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.
Alternatively, the Board could reach the same result in the instant case even if a conviction for aiding and abetting a violation of 8 U.S.C. § 1325(a)(2) would not alone establish removability under INA Section 237(a)(1)(E)(i). Where the plea agreement stating the factual basis for the criminal charges brought against the respondent shows that her conduct was tied to the aliens’ manner of entry and her specific intent to harbor them in order to assist them in eluding inspection or examination by immigration officials, and where INA Section 237(a)(1)(E)(i) does not require a conviction, the IJ improperly relied on cases that prohibit looking to the factual basis of a conviction, which are inapposite here. Thus, the IJ erred in refusing to consider the documents in the record stating the factual basis for the respondent’s conviction.
The Board therefore concludes that the DHS has established by clear and convincing evidence that the respondent knowingly assisted aliens to enter the United States in violation of law and that she is therefore removable as charged. Accordingly, the DHS’s appeal will be sustained, the proceedings will be reinstated, and the record will be remanded to the IJ for consideration of any relief from removal for which the respondent might be eligible.
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