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Media Alerts - Parra-Rojas v. Attorney General USA - Third Circuit
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April 4, 2014
  Parra-Rojas v. Attorney General USA - Third Circuit
Headline: Third Circuit Reverses Immigration Case Regarding Transportation of Illegal Aliens

Area of Law: Immigration Law

Issue(s) Presented: Whether Petitioner is inadmissible under 8 U.S.C. § 1182(a)(6)(E)(i) for transporting illegal aliens once they had already entered the country, and there was no evidence that Petitioner was involved in the border crossing?

Brief Summary: Petitioner, a native and citizen of Colombia, but a permanent resident of the United States, was charged with Bringing In and Harboring Aliens for Financial Gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2. In Immigration Court, the government argued that Petitioner's conviction under § 1324(a)(2)(B)(ii) rendered him inadmissible under 8 U.S.C. § 1182(a)(6)(E)(i), which provides that, "an alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter the United States in violation of law is inadmissible." The Immigration Judge ordered that Petitioner be deported to Colombia. On appeal the Board of Immigration Appeals (BIA) affirmed the Immigration Judge's decision, noting that it is not necessary that an individual be physically present at the border crossing to be held inadmissible. The BIA concluded that "bringing or attempting to bring an alien to the United States corresponds with assisting, abetting or aiding an alien entering or trying to enter the United States." The Third Circuit reversed, holding that there is no evidence that Petitioner aided the aliens' entry into the United States, and that because he only transported the aliens once they had already entered the United States, § 1182(a)(6)(E)(i) does not apply to Petitioner's case.

Extended Summary: Petitioner is a native and citizen of Colombia, but was admitted to the United States at age 20 as a lawful permanent resident in 1984. On November 16, 2009, he was stopped at the High Peaks checkpoint near North Hudson, New York. Upon questioning, Petitioner admitted that he had picked up two illegal aliens in the Saint Regis Mohawk Reservation, on the U.S. side of the Canadian border, and that he was to be paid $1,000 to drive the men to locations in Queens, New York. Petitioner also admitted that he had performed the same work on two prior occasions, and was generally paid around $500 per illegal alien, plus expenses.

Petitioner was charged with Bringing In and Harboring Aliens in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 2. Petitioner was also charged with Transporting Illegal Aliens in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(B)(i) (transporting offense). Petitioner pled guilty to the first charge, and the second charge was dismissed on motion by the Government. Petitioner was sentenced to 18 months' imprisonment.

On August 22, 2011, the Department of Homeland Security (DHS) filed a Notice to Appear with the Immigration Court, charging Petitioner with removability under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), which states that an alien who is convicted of an aggravated felony is deportable. On September 13, 2011, Petitioner appeared before the Immigration Judge and admitted the fact of his conviction and removability, but informed the Immigration Judge that he planned to apply for adjustment of status under 8 U.S.C. § 1255(a), which provides that adjustment may be granted in the discretion of the Attorney General to aliens who are eligible to receive an immigrant visa and are "admissible to the United States for permanent residence."

The Government conceded that an aggravated felony conviction does not, by itself, render an alien ineligible for adjustment of status, but that Petitioner's conviction under § 1324(a)(2)(B)(ii) rendered him inadmissible under 8 U.S.C. § 1182(a)(6)(E)(i), which provides that, "an alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter the United States in violation of law is inadmissible."

On February 23, 2012, the Immigration Judge issued an interlocutory order denying Petitioner's application for adjustment of status. The Immigration Judge reasoned that Petitioner's conduct, though limited to transporting aliens within the United States, rather than across the border, was "integral to the overall scheme of alien smuggling," and therefore Petitioner was inadmissible due to his conviction. The Immigration Judge issued a final decision ordering that Petitioner be deported to Colombia on November 27, 2012. On appeal the Board of Immigration Appeals (BIA) affirmed the Immigration Judge's decision, noting that it is not necessary that an individual be physically present at the border crossing to be held inadmissible. The BIA concluded that "bringing or attempting to bring an alien to the United States corresponds with assisting, abetting or aiding an alien entering or trying to enter the United States."

The Petitioner also argued that his conviction required that the individual charged have acted either knowingly or in reckless disregard of the fact that an alien has not received prior authorization to enter the United States, and that he did not have the requisite mens rea for the conviction. The BIA examined Petitioner's pre-sentencing report, which stated that Petitioner had admitted to knowing that the aliens he transported lacked authorization to enter the United States. Therefore, the BIA held that the Petitioner had not established that he did not act with the requisite mens rea.

On appeal to the Third Circuit, the court reversed, holding that Petitioner did not satisfy the "encouraged, induced, assisted, abetted, or aided" requirement of § 1182(a)(6)(E)(i). To support its holding, the court looked at Petitioner's individual actions regarding the transportation of the illegal aliens. The court found that there was no evidence that Petitioner himself performed any act encouraging, facilitating, or otherwise relating to the aliens' entry into the United States. The court noted that the record contains no indication that Petitioner knew or had contact with any of the aliens prior to transporting them after they had already been dropped off inside the United States, as well as no evidence that Petitioner provided any financial or other assistance to the aliens he transported prior to their entry into the country. Petitioner's conduct was strictly limited to picking up the aliens once they had already crossed the border and transporting them from one area in the United States to another area. Therefore the court held that § 1182(a)(6)(E)(i) does not apply to Petitioner's conduct.

The Government relied heavily on the 5th Circuit's holding in Soriano v. Gonzales, which held that an individual was inadmissible under § 1182(a)(6)(E)(i) because he had made contact with three other aliens in a restaurant in El Paso, Texas, and then drove them to a gas station. However, the Third Circuit reasoned that the Soriano opinion does not indicate whether Soriano had known the aliens prior to their entry to the United States or whether he had personal involvement with their entry into the country. The court held that in the present case, however, the record is clear that Petitioner had no involvement with the aliens prior to their entry to the United States and did not commit any other "affirmative" act that "encouraged, induced, assisted, abetted, or aided" the aliens' entry, as required by § 1182(a)(6)(E)(i). Because the court held that Petitioner's conduct does not satisfy the requirements of § 1182(a)(6)(E)(i), they did not address Petitioner's mens rea argument.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/131828p.pdf

Panel: Circuit Judges Rendell, Roth, and Barry

Argument Date: 1/16/2014

Argument Location: Philadelphia

Date of Issued Opinion: 3/26/2014

Docket Number: No. 13-1828

Decided: Reversed

Case Alert Author: Larissa Staszkiw

Counsel: Thomas E. Moseley, Esquire, Counsel for Petitioner; Eric H. Holder, Jr.
Attorney General of the United States, Stuart F. Delery, Esquire, Acting Assistant Attorney General, Francis W. Fraser, Esquire & Dawn S. Conrad, Esquire, Office of Immigration Litigation, Civil Division, United States Department of Justice, Counsel for Respondent

Author of Opinion: Judge Rendell

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 04/04/2014 03:54 PM     3rd Circuit  

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