In a published decision released last week, the Board of Immigration Appeals held that an individual was removable as a human smuggler under INA § 237(a)(1)(E)(i) where she was convicted of aiding and abetting two non-citizens in evading and eluding examination and inspection by immigration officials. 18 U.S.C. § 2(a) (concerning aiding and abetting) and 8 U.S.C. § 1325(a)(2) (concerning evading and eluding). Matter of Martinez-Serrano, 25 I&N Dec. at 152. Though § 1325(a)(2) is located at INA § 275(a), the BIA cited to the U.S. Code rather than the INA. The plea agreement that Martinez-Serrano signed stated that she knowingly harbored 15 people in her home who she knew were not authorized to be in the U.S. “and I was aiding and abetting their presence in the United States. . . . I was harboring them in order to assist them in eluding examination and inspection by Immigration Officials of the United States.” Matter of Martinez-Serrano, 25 I&N Dec. at 152.
Importantly, INA § 237(a)(1)(E)(i) does not require a conviction. Matter of Martinez-Serrano, 25 I&N Dec. at 153. Rather, it states: “Any 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 deportable.” INA § 237(a)(1)(E)(i).
Despite the lack of a conviction requirement, the BIA concluded that in this case “there is a conviction for an offense that, by its terms, establishes the charge. Specifically, 8 U.S.C. § 1325(a) is a statute that addresses the manner of an illegal entry….” Matter of Martinez-Serrano, 25 I&N Dec. at 153 (citing United States v. Rincon-Jimenez, 595 F.2d 1192, 1193-94 (9th Cir. 1979); United States v. Flores-Peraza, 58 F.3d 164, 168 (5th Cir. 1995)). This conclusion is critical because Martinez-Serrano had argued to the IJ that she had not assisted the entry of undocumented immigrants and the IJ determined “that although the evidence showed that the respondent harbored aliens after their entry, there was insufficient evidence to establish that she helped them enter the country illegally.” Matter of Martinez-Serrano, 25 I&N Dec. at 152. The BIA’s conclusion that § 1325(a) addresses entry effectively undermined Martinez-Serrano’s argument and the basis of the IJ’s decision.
The BIA then identified an alternative basis for its conclusion that Martinez-Serrano is removable under INA § 237(a)(1)(E)(i): the factual statements included in the plea agreement indicated that she helped elude examination and inspection by immigration officials. “As evidenced by the plea agreement stating the factual basis for the criminal charges brought against the respondent, 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.” Matter of Martinez-Serrano, 25 I&N Dec. at 155. The IJ had determined that he could not consider these facts because they were facts underlying the conviction. Matter of Martinez-Serrano, 25 I&N Dec. at 155. Though the BIA did not state as much, it seems that the IJ was applying the categorical approach to statutory analysis. The BIA held that the IJ erred in doing this.
“Because section 237(a)(1)(E)(i) does not require a conviction, the Immigration Judge improperly relied on cases that prohibit looking to the factual basis of a conviction, which are inapposite here. Thus, the Immigration Judge erred in refusing to consider the documents in the record stating the factual basis for the respondent’s conviction.” Matter of Martinez-Serrano, 25 I&N Dec. at 155.
As a result of this alternative holding, everything is fair game, it seems, when no conviction is required.