Wednesday, July 30, 2008
Court: Acquiescence to Document Use Not Alien Smuggling
By STEVEN M. ELLIS, Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a legal permanent resident who acquiesced in her father’s plan to use her U.S.-citizen son’s birth certificate to pass an infant into the country, and who was present when he tried to do so, did not engage in alien smuggling.
Characterizing Modesta Aguilar Gonzalez’s role in the scheme as “reluctant” based on a lack of evidence that she actually gave her father the document, the court held 2-1 in an opinion by Judge Betty B. Fletcher that the charge required more than “mere presence and acquiescence,” and ordered an immigration judge to terminate removal proceedings.
However, Judge N. Randy Smith, noting that similar proceedings against Gonzalez’s father had been cancelled, accused the majority of stretching the law to avoid a result it did not like, and wrote that Gonzalez’s explicit agreement to her father’s request supported the charge.
A Mexican citizen, Gonzalez was approached in 2003 by her father, Isauro Aguilar Campos, who asked to use her five-month-old son’s birth certificate as part of a plan to bring two infant relatives into the United States. Campos, a legal permanent resident himself, also told Gonzalez that it would be easier to get through inspection if the child’s “mother” was with them.
Gonzalez twice refused the request, but said yes the third time, purportedly because she was afraid that her father would no longer help pay the mortgage on the house in which the entire family lived, and which Gonzalez jointly owned with one of her brothers.
Campos, Gonzalez, and other relatives drove to Mexico in a Chevy Suburban to pick up the infants and one of Campos’ U.S.-citizen grandchildren, but when they attempted to reenter the United States, Campos and Gonzalez were referred to secondary inspection where they admitted the infants were not U.S. citizens.
The infants were sent to the Mexican consulate, and Campos and Gonzalez were charged with alien smuggling and placed in removal proceedings. Campos was eventually granted cancellation of removal, but Gonzalez was ineligible for relief because she had only resided in the United States for three years.
Denying that she was removable as an alien smuggler, Gonzalez argued that she had not actively engaged in the attempt because she had neither given her father the birth certificate to use, nor had she actually been the one who presented it to immigration officials.
She did, however, concede that she had “reluctantly said yes” to her father’s request to use the certificate “so as not to disappoint him,” but contended that she “did so without realizing the consequences of her actions.”
The record was unclear as to whether Campos—who knew where the birth certificate had been—had simply taken it, and whether he or Gonzalez had presented the document to immigration officials, but the immigration judge nevertheless ordered Gonzalez removed based on her “presence in the vehicle and [acquiescence] in supplying the document to her father.”
The Board of Immigration Appeals affirmed, but Fletcher directed the immigration judge to terminate removal proceedings, citing the Ninth Circuit’s opinion in Altamirano v. Gonzales (2005) 427 F.3d 586 that mere presence in a vehicle with knowledge that undocumented aliens were hiding in the trunk did not constitute alien smuggling. Joined by Senior U.S. District Judge Samuel P. King of the District of Hawaii, sitting by designation, she wrote that the court could not conclude Gonzalez had engaged in an affirmative act “by reluctantly saying ‘yes’ to her father’s repeated requests.”
“[N]either [Gonzalez’s] proffer nor anything else in the record establishes that she gave her father the birth certificate…,” Fletcher wrote. “Acquiescence is not an affirmative act.”
But Smith dissented with the majority’s characterization of Gonzalez’s actions as “reluctant,” writing instead that she had “actively assisted her father by explicitly agreeing that he could use her son’s birth certificate,” regardless of whether she had physically given it to him.
He criticized the majority for implying “that an oral statement alone can never be an affirmative act,” and remarked that, under the majority’s reasoning, “the defendant who says ‘yes, you can borrow my shotgun and car so that you can rob a bank’ would not be guilty of aiding and abetting as long as he also says ‘the gun is in the closet and the keys are on the counter—go get them yourself.’”
Smith acknowledged the unfairness of allowing Gonzalez’s father—“the mastermind and driving force behind the alien smuggling”—to stay in the United States while ordering Gonzalez’s removal, but wrote, “although it is sometimes difficult, we are not free to adjust the tune of the law any time it does not harmonize with that of our heartstrings.”
The case is Gonzalez v. Mukasey, 04-74576.
Copyright 2008, Metropolitan News Company