Al-Swiety v. Mukasey, (2nd Cir. 2008)

Docket Number: 05-5871

Parts: SUM

Linked as:

Text

05-5871-ag

Al-Swiety v. Mukasey

BIA

Montante, IJ

A71 989 420

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1

AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

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TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 17 th day of January, two thousand eight.

PRESENT:

HON. DENNIS JACOBS,

Chief Judge,

HON. CHESTER J. STRAUB,

HON. DEBRA ANN LIVINGSTON, 1

Circuit Judges.

ABDULNASER AHMAD AL-SWIETY,

Petitioner,

v. 05-5871-ag

NAC

MICHAEL B. MUKASEY, 2 UNITED STATES

ATTORNEY GENERAL,

1

Judge Livingston, originally a member of the panel, recused herself

from the case. Because the remaining members of the panel are in agreement, we

decided this case in accordance with Section 0.14(b) of the Rules of the

United States Court of Appeals for the Second Circuit.

2

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney

General Michael B. Mukasey is automatically substituted for former Attorney

General Alberto R. Gonzales as a respondent in this case.

Respondent.

FOR PETITIONER: Thomas V. Massucci, New York, New York.

FOR RESPONDENT: Michael J. Garcia, United States Attorney; Jeanette A. Vargas, Sarah S. Normand, Assistant United States Attorneys, Of Counsel, Southern District of New York, New York, New York.

UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.

Abdulnaser Ahmad Al-Swiety, a citizen of Jordan, seeks review of an October 4, 2005 order of the BIA affirming the May 27, 2003 decision of Immigration Judge ("IJ") Philip J.

Montante, which found him removable for violating section 212(a)(6)(E)(i) of the Immigration and Nationality Act ("INA"). In re Abdulnaser Ahmad Al-Swiety, No. A71 989 420 (B.I.A. Oct. 4, 2005), aff'g No. A71 989 420 (Immig. Ct.

Buffalo May 27, 2003). We assume the parties' familiarity with the underlying facts and procedural history in this case.

Al-Swiety has explicitly abandoned any challenge to the agency's denial of his application for asylum, withholding of removal, and relief under CAT and confines his appeal to the IJ's finding that he is removable under INA § 212(a)(6)(E)(i), 8U.S.C § 1182(a)(6)(E)(i).

When the decision of an IJ is affirmed without opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ's decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005); Yu Sheng Zhang v. U.S. Dep't of Justice, 362 F.3d 155, 159 (2d Cir. 2004). We review the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard, see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n.7 (2d Cir. 2004), overruled in part on other grounds by Shi Liang Lin v. U.S. Dept. of Justice, 494 F.3d 296, 305 (2d Cir. 2007), and we will uphold the agency's finding that an alien is removable, unless "any rational trier of fact would be compelled to conclude that the proof did not rise to the level of clear and convincing evidence." Francis v. Gonzales, 442 F.3d 131, 138-39 (2d Cir. 2006).

Substantial evidence supports the finding that Al Swiety is removable, under INA § 212(a)(6)(E)(i), as an alien who "knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter the United States in violation of law ...." Al-Swiety argues that the government failed to prove by clear and convincing evidence: (1) that he acted knowingly; and (2) that he performed an affirmative act assisting the attempted illegal entry. 3 As to knowledge, Al-Swiety contends that there was no documentary evidence, and that immigration inspectors failed to take a statement from him or document any questioning of him that evidenced knowledge on his part. However, the IJ cited reports completed by inspectors at the border, in which it was noted that Al-Swiety maintained throughout the inspection that the passenger of his car (his brother) was a permanent resident of the United States. These reports were supported by the testimony of the immigration inspectors who issued them. Additionally, as the IJ found, Al-Swiety (who speaks English perfectly) falsely informed immigration officials that his brother was his cousin, and that his brother was a permanent resident. Al-Swiety was present when his brother falsely stated that he was a permanent resident of the United States. See Chambers v. Office of Chief Counsel, 494 F.3d 274, 278 (2d Cir. 2007) (ruling that statements upon attempting to enter the United States indicating that an alien lives in the United States "could reasonably be construed as an attempt . . . to convince officials that [the alien] then resided in the United States lawfully"). Contrary to Al-Swiety's contention, there is ample record evidence that he knew that his brother was attempting to enter the United States unlawfully by presenting himself as a permanent resident.

As further support, the IJ found as "strong evidence" the fact Al-Swiety's passport, which was purportedly stolen, turned up in his brother's possession two weeks later.

This and other evidence support the inference that Al Swiety knowingly provided his passport to his brother for his attempted entry.

Moreover, the IJ reasonably found Al-Swiety's testimony not credible, relying on Al-Swiety's possession of different forms of identification containing inconsistent identifying information (for which he could provide no explanation); Al-Swiety's procurement of two forms of Ohio identification containing different names, social security numbers, and dates of birth; and Al-Swiety's false testimony under oath.

The IJ's adverse credibility finding is supported by substantial evidence.

As to the insufficiency of evidence to demonstrate that Al-Swiety assisted his brother's attempt to enter the United States unlawfully, Al-Swiety relies on Altamirano v. Gonzales, 427 F.3d 586 (9th Cir. 2005) and Tapucu v. Gonzales, 399 F.3d 736 (6th Cir. 2005), "in which divided panels of the Sixth and Ninth Circuits . . . held that the anti-smuggling statute requires an affirmative act of assistance or encouragement." Chambers, 494 F.3d at 279 (citing Altamirano, 427 F.3d at 596 and Tapucu, 399 F.3d at 737). We have "yet to set forth anything approaching a bright-line test as to the nature of the actions that will or will not suffice to support a finding that an alien has `encouraged, induced, assisted, abetted, or aided' another in illegally entering the United States." Id. (quoting 8 U.S.C. 1182(a)(6)(E)(i)). However, it is unnecessary to do so in this case, as Al-Swiety "did not present agents at the border with accurate information, as did the petitioner in Tapucu, and []he was not merely present in the vehicle . . . like the petitioner in Altamirano." Id. (internal quotation marks omitted).

It is sufficient in this case that Al-Swiety told immigration officials that his brother was a permanent resident of the United States, and thereby "actively sought to mislead customs officials about [his brother's] residency status in a way that, if believed, would have made it easier for him to enter the United States." The IJ did not err in finding sufficient evidence to conclude that Al-Swiety affirmatively assisted his brother's attempted unlawful entry. Chambers, 494 F.3d at 279.

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, Petitioner's pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:

3 In its brief to this Court, the government assumes, arguendo, that the burden of proof rested on the government despite its argument below that Al-Swiety, who is a permanent resident, bore the burden as an applicant for admission under INA § 101(a)(13)(C)(iii).