The Honorable Donald C. Pogue, of the United States Court of International Trade,… v. Gonzales UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 August Term, 2006…

* The Honorable Donald C. Pogue, of the United States Court
of International Trade, sitting by designation.
06-0804
Chambers v. Gonzales
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2006 3
(Argued: April 25, 2007 Decided: July 13, 2007) 4
Docket No. 06-0804-ag 5
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Michelle A. Chambers, 7
Petitioner, 8
- v - 9
Office of Chief Counsel, Department of Homeland Security, Alberto 10
R. Gonzales, United States Attorney General, 11
Respondents. 12
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Before: McLAUGHLIN, SACK, Circuit Judges, and POGUE, Judge.*
14
Judge Pogue dissents in a separate opinion. 15
Petition for review of a decision by the Board of 16
Immigration Appeals ordering removal on the grounds that the 17
petitioner knowingly assisted the attempted entry of an illegal 18
alien. 19
Petition denied. 20
Victor Schurr, Pelham, NY, for 21
Petitioner. 22
Ari Nazarov, Trial Attorney, Office of 23
Immigration Litigation, United States 24
Department of Justice (Peter D. Keisler, 25
Assistant Attorney General, and Alison 26

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2
M. Igoe, Senior Litigation Counsel, on 1
the brief), Washington, DC, for 2
Respondents. 3
SACK, Circuit Judge: 4
Michelle Chambers, a Jamaican native, petitions for 5
review of a decision by the Bureau of Immigration Appeals ("BIA") 6
ordering her removal pursuant to 8 U.S.C. § 1182(a)(6)(E)(i). In 7
re Michelle A. Chambers, No. A 56 034 092 (B.I.A. Jan. 24, 2006), 8
aff'g No. A 56 034 092 (Immig. Ct. Buffalo Aug. 26, 2004). She 9
contends that the BIA erred in finding that she knowingly 10
assisted her former boyfriend's attempted illegal entry into the 11
United States and that irrespective of whether she knew he could 12
not legally enter the United States, her actions were 13
insufficient to constitute an affirmative act of assistance 14
within the meaning of the statute. We disagree and therefore 15
deny the petition. 16
BACKGROUND 17
Chambers was, at all relevant times, a lawful permanent 18
resident of the United States residing in Hempstead, Long Island, 19
New York. In February 2003, she traveled by automobile with her 20
brother, a United States citizen, to Ontario, Canada, to visit 21
relatives. In 1990, her former boyfriend, Christopher Woolcock, 22
a resident of Jamaica, had been deported by the United States 23
after being convicted of a drug-related felony. He was also in 24
Ontario at the time of Chambers's visit, allegedly to attend his 25
uncle's wedding. Prior to Chambers's and Woolcock's trips to 26
Ontario, they agreed during the course of a telephone 27

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3
conversation to meet there and return together to the United 1
States. 2
On February 23, 2003, with Chambers's brother driving, 3
she, her brother, and Woolcock traveled from Ontario headed for 4
the United States in an automobile with Georgia license plates. 5
Chambers was in the front passenger seat and Woolcock was in the 6
back seat. At the border crossing, Chambers's brother handed 7
United States customs officials his passport, his sister's travel 8
documents, and a green card issued in Woolcock's name. Because 9
the customs database revealed that Woolcock had previously been 10
deported, the three were referred to immigration offices for 11
further examination. 12
During subsequent questioning by an immigration 13
inspector, Chambers repeatedly said that Woolcock lived in Long 14
Island and that he had traveled to Canada with her and her 15
brother. She also denied having Woolcock's passport. Moments 16
later, however, she retrieved it from underneath a seat cushion 17
in the area where she had been waiting to be interviewed. 18
Following her interview, Chambers gave a sworn statement to the 19
inspector in which she admitted (1) lying about Woolcock's 20
residence; (2) having previously agreed with Woolcock to 21
accompany him at the Canadian border as he tried to enter the 22
United States; (3) that prior to that conversation, "[h]e was 23
going to come some other way through Kennedy airport"; (4) that 24
she thought Woolcock had last been in the United States seven 25
years before; (5) that she was aware he had been deported 26

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1 Woolcock, as an alien deported for commission of an
aggravated felon, is permanently ineligible to gain entry. See 8
U.S.C. § 1182(a)(9)(A)(i).
4
previously; and (6) that Woolcock was planning to stay with her 1
at her home upon entering the United States. 2
Chambers was charged with knowingly aiding or assisting 3
the illegal entry of another alien under 8 U.S.C. 4
§ 1182(a)(6)(E)(i), and given a notice to appear at removal 5
proceedings. That removal hearing was held before Immigration 6
Judge ("IJ") Philip J. Montante, Jr. Chambers testified that she 7
thought Woolcock was permitted to enter the United States because 8
he had shown her a green card (with his "much younger" picture on 9
it) and had told her that an immigration officer at the time of 10
his deportation in 1990 had informed him that he could return to 11
the United States after ten years.1 She again admitted having 12
lied to immigration officers both when she told them that 13
Woolcock was a Long Island resident and when she said that she 14
did not know the whereabouts of Woolcock's passport. And she 15
admitted that she had also lied when she told the immigration 16
inspector during her interview that Woolcock was going to live 17
with her when they returned to Long Island. In fact, Chambers 18
testified, he was to live with his mother. 19
Chambers explained her misstatements by saying she was 20
frightened because she had been told she would be deported. 21
Asked on cross-examination why she had never decided to visit her 22

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2 There is no indication that Chambers received compensation
for assisting Woolcock's attempted entry into the United States.
5
family in Canada until the weekend that Woolcock was also in 1
Canada, Chambers answered, "Well, we just decided."2
2
At the conclusion of the hearing, the IJ issued an oral 3
decision concluding that Chambers had knowingly aided the illegal 4
entry of another alien. The IJ noted Chambers's several 5
misstatements at the Canadian border and found that "she lied to 6
the Court today." In re Michelle A Chambers, A 56 034 092, at 9. 7
Relying on these misstatements and Chambers's sworn statement 8
that she and Woolcock had planned the trip across the border, the 9
IJ concluded that Chambers knew that Woolcock could not legally 10
enter the United States and that her actions "were an attempt to 11
induce and to encourage" Woolcock's illegal entry. Id. at 9-13. 12
The IJ also noted that he perceived Chambers's testimony that 13
Woolcock told her that he could reenter the United States ten 14
years after his deportation to be inconsistent with Chambers's 15
statement to the immigration inspector that Woolcock was last in 16
the United States seven years prior to the 2003 incident at the 17
border. Id. at 11 ("Well, if he had been in the United States 18
seven years ago, doesn't that fly in the face of her statement 19
that [Woolcock] told her allegedly that he could return after 10 20
years and here it was seven years ago that he was in the United 21
States."). 22
On January 24, 2006, the BIA affirmed in a short 23
opinion that closely followed the IJ's reasoning. First, the BIA 24

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6
determined that "if [Chambers] believed that Mr. Woolcock could 1
only reenter the United States after having been absent for 10 2
years after his deportation, [Chambers] would have had knowledge 3
that Mr. Woolcock would not have been able to reenter the United 4
States after the passage of only 7 years." In re Michelle A. 5
Chambers, A 56 034 092, at 2. Second, it concluded that in light 6
of Chambers's numerous admitted and deliberate misrepresentations 7
to customs officials at the border, the IJ did not err in finding 8
Chambers's testimony at the hearing incredible or in "finding 9
that her deception at the border reflected guilty knowledge." 10
Id. 11
Chambers petitions for review. 12
DISCUSSION 13
I. Standard of Review 14
"Since the BIA affirmed the IJ's order in a 'brief 15
opinion [that] closely tracks the IJ's reasoning,' and since our 16
conclusion is the same regardless of which decision we review, 17
'we will consider both the IJ's and the BIA's opinions.'" Lewis 18
v. Gonzales, 481 F.3d 125, 129 (2d Cir. 2007) (quoting Wangchuck 19
v. Dep't of Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006)) 20
(brackets in original). 21
We review the IJ's and BIA's factual findings for 22
substantial evidence, and we consider questions of law and 23
applications of law to fact de novo. Secaida-Rosales v. INS, 331 24
F.3d 297, 306-07 (2d Cir. 2003). The BIA's findings of fact "are 25

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3 Aliens such as Chambers who have achieved lawful permanent
resident status in the United States are regarded as seeking
admission to the United States if they have "engaged in illegal
activity after having departed the United States." 8 U.S.C.
§ 1101(a)(13)(C)(iii) ("An alien lawfully admitted for permanent
residence in the United States shall not be regarded as seeking
an admission into the United States for purposes of the
immigration laws unless the alien . . . (iii) has engaged in
illegal activity after having departed the United States.").
7
conclusive unless any reasonable adjudicator would be compelled 1
to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). The 2
petitioner's knowledge at the time in question is a question of 3
fact. See, e.g., Farmer v. Brennan, 511 U.S. 825, 842 (1994); 4
Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996); see 5
also Locurto v. Guliani, 447 F.3d 159, 177 n.6 (2d Cir. 2006) 6
("[T]he defendants' intent is a factual question . . . ."). 7
II. Chambers Acted Knowingly 8
Section 212(a)(6)(E)(i) of the Immigration and 9
Naturalization Act provides that an alien is not admissible into 10
the United States if he or she "at any time knowingly has 11
encouraged, induced, assisted, abetted, or aided any other alien 12
to enter or try to enter the United States in violation of the 13
law." 8 U.S.C. § 1182(a)(6)(E)(i).3 Chambers argues that the 14
circumstances surrounding her stop at the border compel the 15
conclusion that she did not act "knowingly." Specifically, she 16
contends that her behavior was consistent with the acts of 17

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8
someone who thought she was participating in a legal act: her 1
brother readily handed over Woolcock's green card to the customs 2
officer; no subterfuge in the form of fraudulent documents or 3
hidden compartments was used; and Chambers complied with all of 4
the various officers' requests. She argues further that her 5
misstatements were not only immaterial to the charge of aiding 6
illegal alien entry, but also were later recanted. 7
But Chambers does not contest that she lied at the 8
border regarding Woolcock's residency and the whereabouts of his 9
passport. The nature of these misstatements plainly supports the 10
inference drawn by the IJ and the BIA that Chambers knew Woolcock 11
could not legally enter the United States. For example, her 12
statements that Woolcock lived in Long Island and drove with her 13
and her brother to Canada could reasonably be construed as an 14
attempt by Chambers to convince officials that Woolcock then 15
resided in the United States lawfully. Such an inference would 16
in turn support the corollary inference that Chambers wanted 17
border officials to think Woolcock was a legal resident of the 18
United States because she knew he would otherwise not be 19
permitted to enter in light of his immigration status. These 20
inferences, taken together with Chambers's admissions that she 21
and Woolcock planned the means and method of his return to the 22
United States and that she knew that he had been deported 23

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9
previously, constitute substantial evidence to support the IJ's 1
and BIA's findings that Chambers acted knowingly to assist 2
Woolcock's attempted illegal entry. See Siewe v. Gonzales, 480 3
F.3d 160, 168 (2d Cir. 2007) ("So long as there is a basis in the 4
evidence for a challenged inference, we do not question whether a 5
different inference was available or more likely."); see also id. 6
("[W]e will reject a deduction made by an IJ only when there is a 7
complete absence of probative facts to support it . . . ."). 8
To be sure, the IJ and BIA appear to have ascribed 9
misplaced significance to the fact that Chambers professed to 10
believe both that Woolcock had been in the United States within 11
the past seven years and that an immigration officer had told 12
Woolcock he could reenter after ten years. These two assertions 13
are not inherently contradictory. Assuming that Chambers had 14
believed Woolcock's assertion that he could reenter the United 15
States ten years after his deportation in 1990, nothing about the 16
statement would compel Chambers to think that the ten-year clock 17
restarted each time Woolcock entered the United States, as the IJ 18
and BIA seemed to believe. Nevertheless, neither the IJ nor the 19
BIA relied solely -- or, in the case of the IJ, substantially -- 20
on this reasoning in finding that Chambers knowingly assisted 21
Woolcock's attempted illegal entry. Instead, each expressly and 22
additionally relied on Chambers's repeated misstatements and the 23

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10
reasonable inferences drawn therefrom. We therefore conclude 1
that the record contains substantial evidence in support of the 2
agency's finding that Chambers acted with the requisite knowledge 3
and that, were we to remand, the agency would reach the same 4
result even absent the likely error that we have identified. See 5
Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 401 (2d Cir. 6
2005) ("Certainly if the IJ explicitly adopts an alternative and 7
sufficient basis for her determination, no remand is required."); 8
see also Siewe, 480 F.3d at 166-67; Li Zu Guan v. INS, 453 F.3d 9
129, 137-38 (2d Cir. 2006). 10
III. Chambers's Actions Are Sufficient to Constitute 11
Assistance Under Section 212(a)(6)(E)(i) 12
13
As an alternative basis for granting her petition, 14
Chambers argues that her actions do not as a matter of law rise 15
to the requisite affirmative assistance that § 212(a)(6)(E)(i) 16
requires. In support, she cites cases in which divided panels of 17
the Sixth and Ninth Circuits have held that the anti-smuggling 18
statute requires an affirmative act of assistance or 19
encouragement beyond either "openly presenting an alien to border 20
officials with accurate identification and citizenship papers," 21
Tapucu v. Gonzales, 399 F.3d 736, 737 (6th Cir. 2005), or "mere 22
presence in [a] vehicle with knowledge of [a] plan" to smuggle an 23

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11
alien into the United States, Altamirano v. Gonzales, 427 F.3d 1
586, 596 (9th Cir. 2005). 2
Our Circuit has yet to set forth anything approaching a 3
bright-line test as to the nature of the actions that will or 4
will not suffice to support a finding that an alien has 5
"encouraged, induced, assisted, abetted, or aided" another in 6
illegally entering the United States. 8 U.S.C. 7
§ 1182(a)(6)(E)(i). We need not do so here. Chambers did not 8
present agents at the border with accurate information, as did 9
the petitioner in Tapucu, and she was not "mere[ly] presen[t] in 10
the vehicle" in which her brother drove Woolcock across the 11
border like the petitioner in Altamirano. She does not qualify 12
as an innocent bystander on any reading of the facts. The fact 13
that no fraudulent documents were used and no payments by 14
Woolcock were made does not overcome the ample evidence to 15
support the IJ's and BIA's findings that Chambers personally 16
arranged to provide transportation for Woolcock into the United 17
States and purposefully deceived customs officials at the time of 18
his attempted entry. Chambers traveled to Canada with the pre- 19
planned intent to bring Woolcock across the border in her car 20
upon her return, and she actively sought to mislead customs 21
officials about Woolcock's residency status in a way that, if 22
believed, would have made it easier for him to enter the United 23

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12
States. There is thus sufficient evidence from which the IJ and 1
the BIA could conclude that she assisted, abetted, or aided 2
Woolcock in his attempt illegally to enter the United States. 3
Section 212(a)(6)(E)(i) requires no more. 4
CONCLUSION 5
For the foregoing reasons, Chambers's petition for 6
review is denied. 7
8

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13
Pogue, Judge dissenting: 1
The majority opinion correctly states that the BIA’s 2
conclusion that Ms. Chambers violated the alien-smuggling statute 3
is based on the agency’s finding that Ms. Chambers had knowledge 4
of Woolcock’s illegal scheme. The majority opinion also 5
acknowledges – and I agree - that the BIA improperly concluded 6
that Ms. Chambers must have known that Woolcock’s reentry was 7
illegal based on her stated belief that he had been in the 8
country within the last seven years. As the majority notes, if 9
Ms. Chambers believed that Woolcock could reenter the country any 10
time after ten years had passed since his 1990 deportation, 11
whether Woolcock had previously violated the imagined ten-year 12
period says nothing about what Ms. Chambers necessarily believed 13
or knew regarding the propriety of his entry in 2003. 14
I depart from the majority’s opinion, however, 15
because the BIA’s decision also makes it clear that the agency’s 16
erroneous finding - that Ms. Chambers had knowledge of Woolcock’s 17
possible prior reentry - was the major ground for its decision. 18
While the BIA also “found no clear error” in the IJ’s finding 19
that Ms. Chambers’ “deception at the border reflected guilty 20
knowledge,” the BIA did not state that Ms. Chambers’ 21
misrepresentations provided an alternative basis for its 22
decision. Based on this record, therefore, I believe we should 23
review the decision on its stated grounds. SEC v. Chenery Corp., 24
332 U.S. 194, 196 (1947) (“a reviewing court, in dealing with a 25
determination or judgment which an administrative agency alone is 26

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14
authorized to make, must judge the propriety of such action 1
solely by the grounds invoked by the agency.”); see also Lin v. 2
U.S. Dep’t of Justice, 453 F.3d 99, 106 (2d Cir. 2006). 3
Moreover, Ms. Chambers corrected or recanted each 4
of her misrepresentations during the customs investigation, and 5
ultimately provided correct information at the border during the 6
investigation. Accordingly, it seems to me that this case is 7
more like the case cited by the majority, Li Zu Guan v. INS, 453 8
F. 3d 129 (2d Cir. 2006), where the court remanded because it 9
could not be “certain that the errors below did not play a role 10
in the decision to deny relief.” Id. at 141. As in Li Zu, the 11
agency’s error here played at least “a role in the decision to 12
deny relief.” Id. Furthermore, as the court in Tapucu 13
explained, there is nothing “illegal about driving a known 14
illegal alien with admittedly authentic papers to the American 15
border for examination by the border guards.” Tapucu v. 16
Gonzales, 399 F.3d 736, 739-40 (6th Cir. 2005); see also Doe v. 17
Gonzales, 484 F.3d 445, 449-50 (7th Cir. 2007) (noting that 18
presence at the scene of persecution may not constitute 19
“assistance” in the absence of support or encouragement, and 20
further noting that aiding in a cover-up without advance 21
participation in planning such a cover-up also does not 22
constitute assistance in the actual scheme). As a result, I 23
cannot say with confidence that the BIA would have reached the 24
same result in the absence of error, and it seems to me that the 25
BIA should be given the opportunity to weigh the exculpatory 26

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15
evidence and make an initial error-free determination as to 1
whether relief is appropriate. 2
Finally, in order to support a conclusion that Ms. 3
Chambers actually assisted in an illegal entry in violation of 4
Section 212(a)(6)(E)(i), the majority relies on a hypothetical 5
finding – that “Chambers traveled to Canada with the pre-planned 6
intent to bring Woolcock across the border in her car upon her 7
return, and she actively sought to mislead customs officials 8
about Woolcock’s residency status in a way that, if believed, 9
would have made it easier for him to enter the United States.” 10
To find a violation of the statute, however, requires more than a 11
hypothetical finding that the petitioner’s actions “would have 12
made it easier;” it requires that the actions actually assisted, 13
abetted or aided. Perhaps more importantly, the agency made no 14
such finding. Rather, the BIA made the more nuanced and limited 15
conclusion, upon which it did not rely to find a violation of the 16
statute, that Ms. Chambers “arranged to meet with Mr. Woolcock, 17
an alien previously deported from the United States as an 18
aggravated felon, at her family's home in Canada so that he could 19
travel to the United States with her and her brother by car.” In 20
re Michelle A. Chambers, A 56 034 092, at 1-2. Similarly, with 21
regard to the majority’s claim of deception, the agency found 22
only that “... despite the respondent's alleged belief that the 23
[sic] Mr. Woolcock could legally enter the United States, the 24
record reflects that the respondent made several 25
misrepresentations to the immigration officials in secondary 26

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16
inspection . . . . Specifically . . . [Chambers] told [the Agent] 1
that all three of the passengers in the car had traveled to 2
Canada together and that they all lived together in Long Island, 3
New York.” Id. at 2. As noted above, Ms. Chambers later 4
corrected or recanted these statements and ultimately provided 5
correct information at the border during the investigation. It 6
does not seem to me that it is our role to expand the agency’s 7
findings in order to support its conclusion. 8

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