FARIAS

Interim Decision #3269

Interim Decision #3269

In re Rosalva FARIAS-Mendoza, Respondent

File A92 716 636 - El Centro

Decided by Board March 12, 1996

Decided by Attorney General March 28, 1997

Decided by Board on Remand May 7, 1997

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The waiver provisions of section 241(a)(1)(E)(iii) of the Immigration and Nationality Act,

8 U.S.C. § 1251(a)(1)(E)(iii) (1994), were amended to limit availability to aliens who had

the required familial relationship to the smuggled alien at the time the smuggling act

occurred.

(2) The amendments to the smuggling waiver provision apply to applications filed before, on,

or after the date of their enactment, but only if no final determination on the application had

been made prior to that date.

(3) Because the decision of the Board of Immigration Appeals was pending review before the

Attorney General on certification on the date of enactment of the waiver amendments, no

final determination had been made under 8 C.F.R. § 3.1(d)(2) (1996), and the amended ver-

sion of the waiver applies to the respondent.

(4) The respondent was not married to her current husband at the time she assisted him to enter

the United States and therefore is ineligible for a waiver under the amended version of sec-

tion 241(a)(1)(E)(iii) of the Act.

FOR RESPONDENT: Rudy Cardenas, Esquire, El Centro, California

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: William J. Flynn, Gen-

eral Attorney

BEFORE THE BOARD

(March 12, 1996)

Before: Board En Banc: SCHMIDT, Chairman; VILLAGELIU, FILPPU, MATHON, and

GUENDELSBERGER, Board Members. Concurring Opinions: HOLMES, Board Member,

joined by ROSENBERG, Board Member; COLE, Board Member. Dissenting Opinion:

DUNNE, Vice Chairman, joined by VACCA, HEILMAN, and HURWITZ, Board Members.

MATHON, Board Member:

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In a decision dated March 14, 1995, the Immigration Judge found the

respondent deportable under section 241(a)(1)(E)(i) of the Immigration and

Nationality Act, 8 U.S.C. § 1251(a)(1)(E)(i) (1994), for having engaged in

alien-smuggling activity. However, the Immigration Judge granted the

respondent’s application for a waiver of deportability pursuant to section

241(a)(1)(E)(iii) of the Act. The Immigration and Naturalization Service

appeals from the Immigration Judge’s decision granting of this waiver. The

appeal will be dismissed.

I. FACTS AND PROCEDURAL HISTORY

The respondent is a 26-year-old native and citizen of Mexico, who

adjusted her status to that of lawful permanent resident on June 12, 1992. She

was apprehended at a border patrol checkpoint upon her return to the United

States from Mexico on January 11, 1993. At a deportation hearing held on

July 13, 1994, the Immigration and Naturalization Service presented evi-

dence, including a Record of Deportable Alien (Form I-213) and a Record of

Apprehension, Investigation or Seizure (Form G-166), which were admitted

without objection by the respondent. In addition, the Service presented testi-

mony from the border patrol agent who prepared the Form G-166.

The respondent did not dispute that the events occurred essentially as set

forth in the investigative reports and the agent’s testimony. Based on the evi-

dence submitted by the Service, the Immigration Judge concluded that the

respondent’s deportability had been established by clear, unequivocal, and

convincing evidence. See Woodby v. INS, 385 U.S. 276 (1966); 8 C.F.R.

§ 242.14(a) (1995).

The circumstances of the respondent’s apprehension are as follows: The

respondent and her boyfriend, who was residing illegally in the United

States, traveled to Mexico in December 1992 to visit relatives. After a stay of

approximately 22 days, they contacted the respondent’s mother in the United

States to help arrange their return. The respondent’s mother, together with

another friend, drove to Calexico, California. The respondent’s mother

waited and the friend accompanying her crossed into Mexicali, Mexico,

where he met the respondent and her boyfriend. They discussed how they

would each cross into the United States and reassemble in Calexico. The

respondent and her mother’s friend crossed legally through the port of entry,

into the United States. The respondent’s boyfriend crossed illegally. All three

joined the respondent’s mother at the meeting place and then headed north.

The group was subsequently apprehended in their vehicle at a border

patrol checkpoint. The respondent’s boyfriend, who was in the United States

without authorization, elected to return voluntarily to Mexico. Four months

later, he again crossed illegally into the United States to join the respondent.

They were married in November 1993.

At the time of the hearing, the respondent had three children from a previ-

ous relationship. She testified that all three of these children, then ages 7, 6

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and 3, were United States citizens. In addition, she testified that she and her

husband were expecting a child.

II. IMMIGRATION JUDGE’S DECISION

After finding the respondent deportable as charged, the Immigration

Judge informed her of the potential availability of a waiver of deportability

under section 241(a)(1)(E)(iii) of the Act, which applies to aliens who

engaged in smuggling activity with respect to their spouse, parent, son, or

daughter. However, he directed the parties to brief the issue of the respon-

dent’s eligibility to apply for this waiver. In particular, he noted that the law

is not clear in this area. Ultimately, in his March 14, 1995, decision, the

Immigration Judge was persuaded by the respondent’s interpretation of the

waiver. He noted that it would be more in keeping with the promotion of

family unity to recognize the respondent’s husband as such at the time she

applied for her waiver. Further, the Immigration Judge, in granting the

waiver, concluded that the respondent’s marriage was bona fide.

III. ISSUE

The issue in this case is whether the familial relationship requirement

under section 241(a)(1)(E)(iii) of the Act must be extant at the time the smug-

gling occurs, or whether it is sufficient that the relationship exist at the time

of application for the waiver.

IV. STATUTORY HISTORY OF SECTION 241(a)(1)(E)(iii)

The waiver under section 241(a)(1)(E)(iii) of the Act was created by sec-

tion 602(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat.

4978, 5078 (“1990 Act”). Before its amendment in 1990, the section of the

Act that made smuggling aliens a ground of deportation required the smug-

gling to be “for gain.” The 1990 Act removed gain as an element of alien

smuggling and created a discretionary waiver of deportability, designated as

section 241(a)(1)(E)(iii) of the Act, for lawful permanent residents who

attempted to smuggle certain members of their immediate family, i.e., a

spouse, parent, son, or daughter, into the United States.

Section 241(a)(1)(E)(iii) of the Act provides:

The Attorney General may, in his discretion for humanitarian purposes, to assure family

unity, or when it is otherwise in the public interest, waive application of clause (i) in the case

of any alien lawfully admitted for permanent residence if the alien has encouraged, induced,

assisted, abetted, or aided, only the alien’s spouse, parent, son, or daughter (and no other

individual) to enter the United States in violation of law.

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V. SERVICE’S APPELLATE POSITION

The Service argues that the plain meaning of the language in section

241(a)(1)(E)(iii) supports the proposition that the familial relationship had to

exist at the time the smuggling occurred. In particular, the Service states that

the language used to delineate the qualifying relationships under the statute is

exclusive and limiting. In addition to setting out the specific family members,

the exclusive nature of these relationships is emphasized by the word “only.”

Further, the parenthetical phrase, “and no other individual,” is added to

underscore the specific relationships that qualify. Speculative categories, i.e.,

fiances, are not included.

Further, the Service contends that to interpret the terms of the waiver as

applying to family members acquired subsequent to the smuggling would be to

encourage “illicit marriages, rushed marriages, and illegal re-entry” of smug-

gled aliens “who are normally voluntarily returned to Mexico after arrest.”

VI. RESPONDENT’S APPELLATE POSITION

The respondent also contends that the plain language of the statute sup-

ports her position. In her view, the language clearly states that a waiver is

available where an alien has smuggled only her spouse, parent, son, or

daughter. The respondent agrees with the Immigration Judge that family

unity is served by extending a waiver to include a relationship arising after

the act of smuggling and in existence at the time of application, particularly

where the marriage creating the relationship is valid. The respondent notes

that any concern about sham marriages can be resolved in the discretionary

aspect of the waiver application.

VII. ANALYSIS

The starting point in statutory construction generally is the language of the

statute. See INS v. Cardoza-Fonseca, 480 U.S 421, 431 (1987); INS v.

Phinpathya, 464 U.S. 183, 189 (1984) (stating that the starting point in cases

involving statutory construction must be the language employed by Con-

gress, and it is assumed that the legislative purpose is expressed by the ordi-

nary meaning of the words used). We disagree with both of the parties to the

extent that they view the plain language of section 241(a)(1)(E)(iii) to be

clear. The plain language of the statute merely sets forth the qualifying fam-

ily relationships. The statute is silent as to when the specified familial rela-

tionship had to come into existence.

The legislative history of the Immigration Act of 1990 also sheds no light

on the purpose behind the revisions to the ground of deportation for alien

smugglers. However, we have previously construed the parallel waiver in

exclusion, under section 212(d)(11) of the Act, 8 U.S.C. § 1182(d)(11)

(1994), which was also created by the 1990 Act. Matter of Compean, 21 I&N

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Dec. 51 (BIA 1995). As with deportation, the element of “gain” was removed

from the alien-smuggling ground for exclusion, and a discretionary waiver

was added, which related to the same family members. In Compean, we noted

the intent of Congress to expand the class of offenders subject to penalty under

the immigration laws, as reflected by its removal of the element of gain, with-

out eviscerating the protection against deportation accorded in cases involv-

ing certain family members, where gain was not the motivating factor.

In the absence of direct statutory language or legislative history on point,

we will look to the context in which the 1990 Act was enacted. INS v. Errico,

385 U.S. 214 (1966). The Immigration Act of 1990 was fashioned, among

other reasons, to preserve family unity. An excerpt from a section of the leg-

islative history of the 1990 Act entitled “Summary and Purpose” states that

one of the objectives of the amendments was “to ease current U.S. immigra-

tion law restrictions that . . . hinder the reunification of nuclear families.” H.

R. Rep. No. 723(I), 101st Cong., 2nd Sess., reprinted in 1990 U.S.C.C.A.N.

6710, 6711.

The 1990 Act recognized the harsh consequences of deportation for

undocumented immediate family members of legalized aliens. To alleviate

this concern, section 301 of the Immigration Act of 1990, 104 Stat. at 5029,

codified an informal policy of the Immigration and Naturalization Service

through which immediate family members of legalized aliens were allowed

to remain pending the processing of their immigrant visas. See H.R. Rep. No.

723(I), supra, at 6721; see also 8 C.F.R. § 242.6 (1995).

In addition to legislative history that highlights the theme of family unity,

the waiver provision for smuggling aliens under section 241(a)(1)(E)(iii) of

the Act explicitly refers to family unity as a purpose for which the waiver is to

be applied. We will read the smuggling waiver provision under section

241(a)(1)(E)(iii) of the Act, as applied to the instant matter, within this con-

text, and we will interpret it accordingly.

This line of reasoning is furthered by reference to the statute in juxtaposi-

tion to its former incarnations. As noted above, prior to the 1990 Act, the

smuggling provisions for exclusion and deportation included the element of

gain. The requirement that the smuggling must have been “for gain” inher-

ently emphasized commercial smuggling rather than the smuggling of family

members. By revising the smuggling provisions to eliminate the necessity of

establishing gain, while creating an exception for specific immediate family

members, Congress retained a more commercial focus to the statute.

Moreover, the revisions to the smuggling provisions contribute to

improved deportation of commercial smugglers to the extent that criminal

judgments for alien smuggling that do not include “gain” as an element of the

offense now constitute res judicata in deportation proceedings under section

241(a)(1)(E)(i) of the Act. Previously, a criminal conviction for alien smug-

gling would not necessarily be sufficient to establish deportability because

the criminal statutes for alien-smuggling activity do not include “gain” as an

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element. Cf. Larios-Mendez v. INS, 597 F.2d 144 (9th Cir. 1979) (stating that

conviction for aiding and abetting illegal entry based on a guilty plea to a

properly admitted criminal complaint, which set forth gain as an element,

was adequate to support deportation).

The revised smuggling provisions now comport with the criminal penalty

provisions under section 274 of the Act, 8 U.S.C. § 1324 (1994), which do

not require proof of “gain.”1 See, e.g., Matter of Tiwari, 19 I&N Dec. 875

(BIA 1989) (holding that conviction under section 274(a) is not prima facie

evidence of an alien’s deportability under former section 241(a)(13), 8

U.S.C. § 1251(a)(13) (1988), since the deportation ground requires an addi-

tional showing that the alien acted “for gain” in assisting aliens to enter the

United States illegally). Thus, a criminal conviction for alien-smuggling

activity now allows the Service to proceed against the same party in civil

deportation proceedings without an additional element of proof.

In addition to interpreting the statute in light of its historical context and

recurring themes expressed in the legislative history, our interpretation of the

statute takes other applications for discretionary relief into account. Gen-

erally, in considerations of discretionary forms of relief under the Act, e.g., a

waiver under section 212(c) of the Act, with the exception of nunc pro tunc

waivers that inherently involve retrospective examination, the alien’s cir-

cumstances at the time of application for a waiver are evaluated. Cf. Matter

of Caudillo-Villalobos, 11 I&N Dec. 259 (BIA 1965) (holding that respon-

dent was ineligible for nunc pro tunc waiver under former section 212(g) of

the Act, 8 U.S.C. § 1182(g) (1964), based on hardship to United States citizen

wife and child because marriage did not exist at time of last entry).

VIII. CONCLUSION

When confronted with statutory ambiguity, courts have held that doubts

should be resolved in favor of the alien. INS v. Errico, supra, at 225. We find

this approach particularly appropriate here in light of the congressional man-

date to assure family unity and the heightened interest by Congress in com-

mercial smuggling. We also note that a more generous construction of this

limited waiver is warranted in light of the fact that deportation for alien smug-

gling under section 241(a)(1)(E)(i) of the Act, which is retroactive, results in

lifetime exclusion from the United States.2 We recognize the possibility

raised by the Service of manipulation of the law, in terms of sham marriages

or adoptions. However, we view the opportunities for such manipulation to be

1 For example, section 274(a)(1)(A)(iv) of the Act provides criminal penalties for any person

who “encourages or induces an alien to come to, enter, or reside in the United States, knowing

or in reckless disregard of the fact that such coming to, entry, or residence is or will be in

violation of law.”

2 An alien excludable for alien smuggling may seek a waiver under section 212(d)(3) of the

Act, 8 U.S.C. § 1182(d)(3) (1994), to enter the United States in a nonimmigrant capacity.

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limited. Scenarios in which an alien will have smuggled in only individuals

who are subsequently transformed into a son, daughter, parent, or spouse in

contemplation of litigation are rare. Further, as noted by the Immigration

Judge, these issues can be addressed in the exercise of discretion.

Based on the foregoing, we agree with the Immigration Judge that the

respondent is eligible to apply for a waiver of deportability under section

241(a)(1)(E)(iii) of the Act. Further, we find no reason to alter his determina-

tion that she merits the waiver as a matter of discretion. Accordingly, the Ser-

vice’s appeal of the Immigration Judge’s decision will be dismissed.

ORDER: The appeal of the Immigration and Naturalization Ser-

vice is dismissed.

CONCURRING OPINION: David B. Holmes, Board Member, in

which Lory D. Rosenberg, Board Member, joined

I respectfully concur.

There is no dispute in this case regarding the rules of statutory construc-

tion. If the language of the statute is clear, that is the end of the matter. Both

the Board and the courts “must give effect to the unambiguously expressed

intent of Congress.” Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 842-43 (1984). Moreover, it is assumed that the

legislative purpose is expressed by the ordinary meaning of the words used.

INS v. Phinpathya, 464 U.S. 183, 189 (1984). And, in ascertaining the “plain

meaning” of the statute, the Board “must look to the particular statutory lan-

guage at issue, as well as the language and design of the statute as a whole.”

K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).

The Immigration and Naturalization Service and the dissenting Board

Members view the language of section 241(a)(1)(E)(iii) of the Immigration

and Nationality Act, 8 U.S.C. § 1251(a)(1)(E)(iii) (1994), as clear on its face

and amenable to only one reading. However, the fact that the Immigration

Judge, in a thoughtful decision, and now a majority of the Board conclude

that this same language can be read in either of two ways makes it difficult for

me to resolve the issue before us simply by a citation to the “plain meaning”

of the words in section 241(a)(1)(E)(iii). While the dissent may be correct in

its reading of this statutory provision, I cannot find that the interpretation

advanced by the respondent, and ultimately accepted by Immigration Judge

Bennett and the Board majority, does violence to the language of section

241(a)(1)(E)(iii).

Moreover, the legislative history provides no clear guidance regarding the

intent of Congress concerning the specific issue before us, and looking to the

statutory scheme (i.e., “the design of the statute as a whole”) provides little

help. I agree with Board Member Cole that the majority overemphasizes

commercial smuggling in its discussion of the amendments made by the

Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978. The scope of

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the changes to the smuggling provisions in 1990 went far beyond addressing

the problem of commercial smugglers. For example, an alien who smuggles

in his younger sister is both deportable and ineligible for a waiver under sec-

tion 241(a)(1)(E)(iii) of the Act, as would be a grandmother who smuggles in

a grandchild. However, looking for guidance in the overall statutory scheme

does not much help in answering the question before us, because the waiver

provision in section 241(a)(1)(E)(iii) obviously is as much a part of that

scheme as any other provision of the Act. The arguments related to the statu-

tory scheme become somewhat circular (i.e., one seemingly has to start with

the answer to the question before one can decide which of the twin statutory

concerns of promoting family unity and discouraging alien smuggling is the

more relevant to the matter at hand).

As the majority notes, the Supreme Court has long held that doubts as to the

proper construction of sections of the Immigration and Nationality Act such

as the one before us “should be resolved in favor of the alien.” INS v. Errico,

385 U.S. 214, 225 (1966); see also Fong Haw Tan v. Phelan, 333 U.S. 6, 10

(1948). That being the case, I concur in the decision of the majority.

I note that the Service argues that the Immigration Judge’s interpretation

of this waiver provision, which the Board majority has now adopted, could

provide a “loophole” for even professional smugglers. However, as noted by

the majority, the scenarios in which an alien could even attempt to manipu-

late the statute in this regard are extremely limited. For example, an adult

alien who smuggles in just one adult alien of the same sex, or any two adult

aliens, could not create “after the fact” eligibility for a waiver under section

241(a)(1)(E)(iii). Moreover, the Service has available all of its statutory tools

for combating fraud. And, perhaps most significantly, this is a discretionary

waiver, not a mandatory one. The approach taken by the majority today

should allow for a uniform nationwide interpretation of this section of law

without resulting in any dire consequences.

Finally, I concur in Immigration Judge Bennett’s exercise of discretion in

this case, particularly given the express concern in section 241(a)(1)(E)(iii)

of the Act of assuring “family unity.”This respondent has resided lawfully in

the United States since 1988 and is the mother of four young United States

citizen children. The evidence presented by the Service reflects that she has

no criminal record and no prior history of immigration violations. The Immi-

gration Judge found the respondent’s present marriage to be bona fide, and

the Service has not challenged this finding on appeal. In fact, the Service

would appear to acknowledge that the marriage is bona fide. On these facts, I

find a favorable exercise of discretion clearly warranted.

CONCURRING OPINION: Patricia A. Cole, Board Member

I respectfully concur.

I concur in the result reached by the majority that the qualifying family

relationship exist only at the time the waiver of exclusion/deportation is

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requested. I write separately because there is too much emphasis on commer-

cial smuggling in the decision. While I agree with the majority that the revi-

sions to the smuggling provisions of the Immigration and Nationality Act

improve deportation of commercial smugglers, I would also note that the

alien-smuggling problem involves more than the commercial, for fee smug-

glers. An additional problem the 101st Congress was addressing in the Immi-

gration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (“1990 Act”), was

the illegal aliens who “made it” to the United States and then encouraged or

smuggled family and friends to enter illegally.

The 1990 Act revisions included eliminating the commercial focus to the

smuggling grounds, i.e., gain is not a motivator in all smuggling to be an

offense under the Act. In fact, the 1990 Act did three things to the smuggling

grounds: it expanded the classes of aliens subject to exclusion/deportation

by eliminating the “gain” requirement, see sections 212(a)(6)(E)(i),

241(a)(l)(E)(i) of the Act, 8 U.S.C. §§ 1182(a)(6)(E)(i), 1251(a)(1)(E)

(i)(1994); it provided exceptions to exclusion/deportation for certain smug-

gled “family unity” beneficiaries, see sections 212(a)(6)(E)(ii), 241(a)(1)(E)

(ii) of the Act; and it created a new discretionary waiver provision for aliens

who smuggled only a spouse, parent, son, or daughter into the United States,

see sections 212(a)(6)(E)(iii), 241(a)(1)(E)(iii) of the Act.

The majority decision seems to emphasize that this smuggling waiver pro-

vision was to promote family unity. However, the 1990 Act had many pur-

poses, and the primary focus of that legislation was the permanent legal

immigration system. With the foreseeable backlogs in the second preference,

it can hardly be said that family unity or the reunification of nuclear families

was a primary objective. In fact, family unity for the 1986 legalized aliens

was just one purpose of that legislation. By definition this waiver provision

promotes family unity. However, I would postulate that the 1990 Act smug-

gling revisions did not provide protection against deportation in cases involv-

ing certain family members, but rather provided for the first time an

opportunity to apply for a discretionary waiver of deportation/exclusion for a

limited group of aliens. A point to emphasize is that this exception for spe-

cific family members is not automatic, but rather is a discretionary waiver for

humanitarian, public interest, or family unity purposes.

The dissent mischaracterizes the facts in implying that the respondent and

Raul married in order to qualify for the alien-smuggling waiver. The cited

transcript language was the respondent’s testimony regarding her efforts to

secure an attorney for the proceedings. The respondent stated that she had

tried to get an attorney and “they would tell me that I would either have to be

married or that even to start the case I would have to pay them Five Hundred

Dollars.” During this same testimony the respondent indicated that at her last

hearing the Immigration Judge informed her to “bring a marriage certificate

if I should marry because I was engaged to the person at the time.”

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Further, the record does not “clearly establish that the respondent married

Raul in an attempt to prevent her deportation.” In fact, the record establishes

that this is a viable marriage. The respondent testified that she and Raul were

boyfriend/girlfriend when they went to Mexico together and had considered

marrying there. She also testified that she and the respondent were to have a

child, and on appeal her attorney advises that in fact, a child was born to them

on December 9, 1994.

DISSENTING OPINION: Mary Maguire Dunne, Vice Chairman, in

which Fred W. Vacca, Michael J. Heilman, and Gerald S. Hurwitz,

Board Members, joined

I respectfully dissent.

The respondent, a native and citizen of Mexico who is a lawful permanent

resident, made a trip to Mexico in late 1992 to visit her family. A male friend,

Raul Tapia-Luquin (“Raul”), who had been living in the United States with-

out lawful status, accompanied her on the visit to Mexico. When they wanted

to return to the United States in January 1993, the respondent arranged for her

mother to meet her in the United States border town of Calexico. The respon-

dent passed through the border checkpoint by presenting her alien registra-

tion card and was admitted as a returning lawful permanent resident. Raul

entered the United States also, separately from the respondent, and met the

respondent in Calexico. They were apprehended by the border patrol at a Cal-

ifornia highway checkpoint in the company of the respondent’s mother and

another person. The respondent was placed in these deportation proceedings

and Raul elected to return voluntarily to Mexico.

Raul reentered the United States without inspection about 4 months later.

He married the respondent on November 20, 1993. This was done on the

basis of legal advice received by the respondent. In particular, the respondent

was advised that she could possibly qualify for the alien-smuggling waiver

under section 241(a)(1)(E)(iii) of the Immigration and Nationality Act, 8

U.S.C. § 1251(a)(1)(E)(iii) (Supp. V 1993), if she married Raul. She

informed Raul of this development and he agreed to marry her.

On the basis of the marriage, the respondent sought and was granted a

waiver of deportability under section 241(a)(1)(E)(iii) of the Act. The Immi-

gration and Naturalization Service has appealed from the Immigration

Judge’s decision to grant the waiver and has raised two issues: (1) whether a

qualifying relationship acquired by means of a marriage entered into after the

smuggling act occurred renders an alien smuggler eligible for the waiver, and

(2) if such a marriage did render the respondent eligible for such a waiver, did

the Immigration Judge err in granting the waiver in discretion.

Unlike the majority, I find that the language of the statute is clear on its

face and without ambiguity and would conclude that the after-acquired rela-

tionship does not render the respondent eligible for the waiver. In my view,

the plain meaning of the operative terms in section 241(a)(1)(E)(iii) of the

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Act does not contemplate relationships acquired after the occurrence of the

smuggling act. The limited legislative history provides no guidance as to the

intention of the drafters of the statute. Therefore, the language of the statute

becomes determinative. See INS v. Phinpathya, 464 U.S. 183 (1984); Ameri-

can Tobacco Co. v. Patterson, 456 U.S. 63 (1982).

The statute is clear and precise in its definition of those persons who qual-

ify for the waiver and what the specific relationship must be. The language

used to delineate the qualifying relationships under the statute is exclusive

and limiting. In addition to setting out the specific family members, the

exclusive nature of these relationships is emphasized by the word “only.”

The parenthetical phrase, “and no other individual,” is added to underscore

the exact relationships that qualify.

Furthermore, the construction of the statutory language makes it clear that

the qualifying relationship must exist at the time of the smuggling because it

states that the smuggler “has encouraged. . . only the alien’s spouse . . . to enter

the United States in violation of law.” Section 241(a)(1)(E)(iii) of the Act. The

terms used have ordinary and obvious meanings and must be read as drafted.

The language contained in the waiver points to the state of the relation-

ships as they existed at the time the smuggling occurred, since it is the act of

smuggling a particular family member itself that is sought to be waived.

Thus, the waiver presupposes the existence of a family relationship that is

sought to be preserved, rather than the protection of a relationship that may or

may not arise at an unspecified time in the future.

The Act clearly contemplates a waiver for a lawful permanent resident

alien who has been found deportable for smuggling certain specified rela-

tives with the required relationship to the smuggler at the time of the act of

smuggling. To read the statute otherwise because of Congress’ stated desire

to maintain family unity only leads to the result found in this case. Here no

family existed to keep united at the time of the smuggling and there would

have been no family to keep united but for the waiver. The record clearly

establishes that the respondent married Raul in an attempt to prevent her

deportation by applying for the waiver. By its reading of the statute, the

majority permits the respondent to achieve such a result. Requiring the rela-

tionship to be in existence at the time of the smuggling is not inimical to fam-

ily unity; rather, the impetus for the act of smuggling would be to preserve an

intact family unit.

BEFORE THE ATTORNEY GENERAL

(March 28, 1997)

I have reviewed the decision of the Board of Immigration Appeals

(“BIA”) in this matter at the request of the Commissioner of the Immigration

and Naturalization Service (“INS”) pursuant to the provisions of 8 C.F.R.

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§ 3.1(h)(1)(iii). In its decision, the BIA upheld the Immigration Judge’s rul-

ings that Respondent Farias-Mendoza was eligible for waiver of

deportability under the provisions of section 241(a)(1)(E)(iii) of the Immi-

gration and Nationality Act (“INA”) and that such waiver should be granted.

For reasons explained below, I am directing that the matter be remanded to

the BIA for reconsideration in light of the provisions of section

241(a)(1)(E)(iii) of the INA, 8 U.S.C. § 1251(a)(1)(E)(iii), as amended by the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.

L. No. 104-208, Division C, 110 Stat. 3009 (1996) (“Reform Act”).1

Prior to its amendment by the Reform Act, section 241(a)(1)(E) of the

INA, 8 U.S.C. § 1251(a)(1)(E), provided as follows:

(i) In general. Any alien who (prior to the date of entry, at the time of any entry, or

within 5 years of the date of any entry) knowingly has encouraged, induced, assisted, abet-

ted, or aided any other alien to enter or to try to enter the United States in violation of law is

deportable.

....

(iii) Waiver authorized. The Attorney General may, in his discretion for humanitarian

purposes, to assure family unity, or when it is otherwise in the public interest, waive appli-

cation of clause (i) in the case of any alien lawfully admitted for permanent residence if the

alien has encouraged, induced, assisted, abetted, or aided only the alien’s spouse, parent,

son, or daughter (and no other individual) to enter the United States in violation of law.

The primary issue in this proceeding is whether Respondent Farias-

Mendoza is eligible for waiver of deportation under the latter provision. The

INS contends that the waiver provision is available for marital relationships

only if the assisted alien was married to the assisting alien at the time of the

illegal entry. The respondent contends, and the BIA ruled, that the waiver

provision is available as long as the marital relationship is established by the

time a waiver determination is made.

On September 30, 1996, Congress passed the Reform Act. The Reform

Act amended section 241(a)(1)(E)(iii) of the INA, to clarify that the fam-

ily-relationship waiver is available only if the alien’s relationship with the

person assisted into the United States existed at the time the illegal entry

occurred. The waiver provision now reads (new language in bold type):

(iii) Waiver Authorized. The Attorney General may, in his discretion for humanitarian

purposes, to assure family unity, or when it is otherwise in the public interest, waive appli-

cation of clause (i) in the case of any alien lawfully admitted for permanent residence if the

alien has encouraged, assisted, abetted, or aided only an individual who at the time of the

offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter

the United States in violation of law.

INA § 241(a)(1)(E)(iii), 8 U.S.C. § 1251(a)(1)(E)(iii).

1 Pursuant to the Reform Act, section 241 of the INA will be redesignated as section 237 of

that Act, effective April 1, 1997. Reform Act, Title III, §§ 305(a)(2) and 309(a), 110 Stat.

3009-598, 625.

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Pursuant to section 351 of the Reform Act, this amended version of the

waiver provision is to apply in the case of “waivers filed before, on, or after

the date of the enactment of [the Reform Act], but shall not apply to such an

application for which a final determination has been made as of the date of

enactment of [the Reform Act].”2

Because the BIA has not had the opportunity to consider the effect of the

quoted provisions of the Reform Act on this case, I remand this matter to the

BIA for reconsideration, taking into account the provisions of section

241(a)(1)(E)(iii) of the amended INA and section 351 of the Reform Act.

BEFORE THE BOARD ON REMAND

(May 7, 1997)

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; HEILMAN,

HOLMES, HURWITZ, FILPPU, COLE, MATHON, and GUENDELSBERGER, Board

Members. Concurring Opinions: VACCA, Board Member; VILLAGELIU, Board Member;

ROSENBERG, Board Member.

SCHMIDT, Chairman:

This case is before us on remand from a decision of the Attorney General

dated March 28, 1997. Our original decision in this case dismissed the appeal

of the Immigration and Naturalization Service from an order of the Immigra-

tion Judge granting the respondent’s application for a waiver under section

241(a)(1)(E)(iii) of the Immigration and Nationality Act, 8 U.S.C.

§ 1251(a)(1)(E)(iii) (1994). Matter of Farias, 21 I&N Dec. 269 (BIA 1996).

The Attorney General agreed to review our decision on certification at the

request of the Commissioner of the Service pursuant to 8 C.F.R. § 3.1(h)(iii)

(1996). On September 30, 1996, while this case was pending before the

Attorney General, Congress amended section 241(a)(1)(E)(iii) to limit the

availability of the waiver to only those aliens who have smuggled “an indi-

vidual who at the time of the offense was the alien’s spouse, parent, son, or

daughter.” See Illegal Immigration Reform and Immigrant Responsibility

Act of 1996, Division C of Pub. L. No. 104-208, §§ 351(b),(c), 110 Stat.

3009- 546, 3009-640 (effective Sept. 30, 1996) (“IIRIRA”).3 The legislative

history of that amendment shows that its specific purpose was to overrule the

Board’s precedent decision in this particular case. See H.R. Rep. No. 104-828

(1996), available in 1996 WL 539315 and 142 Cong. Rec. H10,841-02 (daily

2 With respect to appeals from decisions of an Immigration Judge to the BIA, 8 C.F.R.

§ 3.1(d)(2) provides:

(2) Finality of decision. The decision of the Board shall be final except in those cases

reviewed by the Attorney General in accordance with paragraph(h) of this section.

3 Section 241(a)(1)(E)(iii) of the Act was redesignated effective April 1, 1997, as section

237(a)(1)(E)(iii) of the Act (to be codified at 8 U.S.C. § 1227(a)(1)(E)(iii)). See IIRIRA

§§ 305(a)(2), 309(a), 110 Stat. at 3009-598, 3009-625.

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ed. Sept. 24, 1996). The Attorney General therefore remanded the record to

this Board for reconsideration of the respondent’s eligibility for a waiver.

As the Attorney General noted in her decision, the amended version of the

waiver provision applies to “waivers filed before, on, or after the date of the

enactment of [the IIRIRA], but shall not apply to such an application for

which a final determination has been made as of the date of enactment of [the

IIRIRA].”). IIRIRA § 351(c). However, as the Attorney General also pointed

out, under 8 C.F.R. § 3.1(d)(2) (1996), a decision of this Board is not final

while pending review before the Attorney General on certification.

Section 101(a)(47) of the Act, which sets forth the definition of an “order

of deportation” and states when it becomes final, was added by the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,

110 Stat. 1214 (“AEDPA”). This new provision does not modify or super-

sede 8 C.F.R. § 3.1(d)(2), but merely defines when an order of deportation

entered by the Board shall be deemed final for judicial review purposes. See

H.R. Rep. No. 104-518 (1996), available in 1996 WL 174947. Section

101(a)(47) does not alter the fact that under 8 C.F.R. § 3.1(d)(2) there is no

enforceable order of the Board, for any purpose, while such order is pending

review before the Attorney General on certification. Consequently, inasmuch

as there has been no “final determination” of this case by this Board, the

amended version of the waiver applies to the respondent.

At the time the respondent assisted her current husband in entering the

United States in violation of law, she was not married to him. Therefore, the

respondent is ineligible for a section 241(a)(1)(E)(iii) waiver under the

amended law. Consequently, we will vacate our previous order in the case,

sustain the Service’s appeal, and remand the record to the Immigration Judge

for further proceedings.

ORDER: Our order of March 12, 1996, is vacated. The appeal of

the Immigration and Naturalization Service is sustained, and the record is

remanded to the Immigration Judge for further proceedings in accordance

with this order.

CONCURRING OPINION: Fred W. Vacca, Board Member

I respectfully concur.

While I concur with the result reached by the majority, I am compelled to

point out that the former section 241(a)(1)(E)(iii) of the Immigration and

Nationality Act, 8 U.S.C. § 1251(a)(1)(E)(iii) (1994), expressly limited the

availability of a waiver of deportability to aliens who had smuggled an indi-

vidual who, at the time of the smuggling, was either the alien’s spouse, par-

ent, son, or daughter, and no other person. Nonetheless, this Board, in an

eight to four decision, failed to interpret the plain language of section

241(a)(1)(E)(iii) as such. Accordingly, the Board’s decision was both certi-

fied to the Attorney General by the Immigration and Naturalization Service

and expressly overruled by Congress’ amendment of section 241(a)(1)

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(E)(iii) by section 351 of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.

3009-546, 3009-640 (“IIRIRA”).

The former section 241(a)(1)(E)(iii) of the Act was both clear and precise

in its definition of those persons who qualified for the waiver, as well as its

specification of the required relationships between the alien smuggler and the

individual smuggled. The exclusive nature of these relationships was further

emphasized by Congress’ use of the words “only” and “no other individual.”

As noted by the dissenting opinion in the original decision of this case, the

waiver provisions of section 241(a)(1)(E)(iii) logically presupposed the exis-

tence of a family relationship that was sought to be preserved, rather than the

protection of a relationship that may or may not arise at an unspecified time in

the future. The current amendment to section 241(a)(i)(E)(iii) simply spells

out that the relationship between the alien smuggler and the individual smug-

gled must exist at the time of the smuggling event.

When this case was first before us, our task was to interpret the scope and

breadth of the plain language of section 241(a)(1)(E)(iii) in a fashion that was

both reasonable and logical. However, the majority elected instead to engage

in a course of statutory construction that led to an unreasonably broad inter-

pretation that was out of step with the will of Congress. Had the former

majority followed the plain meaning interpretation of the original statute as

expressed by the dissenters, neither the certification to the Attorney General

nor the amendment of the statute by Congress would have been necessary. It

is interesting to note that this Board made a similar error of overreaching in

interpreting, not only a statute, but our own Board precedent and controlling

case law in Matter of Soriano, 21 I&N Dec. 516 (BIA 1996). Our decision in

Matter of Soriano was also certified to the Attorney General and was over-

ruled in a decision dated February 21, 1997.

In my opinion, we must exercise restraint when interpreting the plain lan-

guage of statutes. Deference to the supremacy of the Legislature, as well as

recognition that members of Congress typically vote on the language of a

bill, generally requires us to assume that the legislative purpose underlying a

statute is expressed by the ordinary meaning of the words used. United States

v. Locke, 471 U.S. 84 (1985). Accordingly, I concur in the result reached by

the majority.

CONCURRING OPINION: Gustavo D. Villageliu, Board Member

I respectfully concur.

While I concur with the result reached by the majority, I am compelled to

write separately to join the concurring analysis of Board Member Vacca and,

belatedly, express my agreement with the views of the dissenters when this

case was last before us. I then joined the majority believing that the language

of section 241(a)(1)(E)(iii) of the Act, 8 U.S.C. § 1251(a)(1)(E)(iii) (1994),

was ambiguous and, thus, that doubts were to be resolved in favor of the

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alien. INS v. Errico, 385 U.S. 214 (1966). Upon reconsideration, it is my

view that my previous interpretation was incorrect, and the language of the

statute was not ambiguous. The words, “alien has encouraged, induced,

assisted, abetted, or aided,” preceding the smuggled relative, were in the past

tense, referring to the time when the smuggling occurred, as explained by the

original dissenters in this case. The language of the statute was unambiguous,

and thus, the rules regarding ambiguous statutes were inapplicable.

CONCURRING OPINION: Lory D. Rosenberg, Board Member

I respectfully concur.

Originally enacted in the Immigration Act of 1990, Pub. L. No. 101-649,

104 Stat. 4978, “for humanitarian purposes, to assure family unity, or when it

otherwise is in the public interest,” section 241(a)(1)(E)(iii) of the Immigra-

tion and Nationality Act, 8 U.S.C. § 1251(a)(1)(E)(iii) (1994), contained no

express limitation on the time at which the qualifying relationship came into

being. Matter of Farias, 21 I&N Dec. 269 (BIA 1996). The statute was

amended, however, by section 351 of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208,

110 Stat. 3009-546, 3009-640 (“IIRIRA”).

Although the ostensible purpose of the waiver has not changed, the scope

of its applicability as we had construed it in Matter of Farias, supra, has been

restricted.1 Its terms now expressly limit eligibility for the waiver to an indi-

vidual who, “at the time of the offense,” had a qualifying relationship.2 See

section 237(a)(1)(E)(iii) of the Act (to be codified at 8 U.S.C.

§ 1227(a)(1)(E)(iii)). This provision applies to waivers filed “before, on, or

after the date of the enactment of [the IIRIRA],” but, notably, not to final

1 In Matter of Farias, supra, we considered the absence of specific congressional direction

as to the scope and application of section 241(a)(1)(E)(iii) of the Act. We noted that at that time

Congress was concerned with family unity, and that, in amending the smuggling provisions to

eliminate the factor of gain as a necessary element of the offense, Congress remained sensitive

to those family situations which were specified under the specific language of the statute.

2 I note that the Joint Explanatory Statement of the Committee of Conference emphasizes

that Congress’ stated purpose was “to override the recent contrary holding by the Board of

Immigration Appeals.” H.R. Rep. No. 104-828 (1996), available in 1996 WL 539315, and 142

Cong. Rec. H10,841-02 (daily ed. Sept. 24, 1996). The Joint Explanatory Statement reads,

“The amendment clarifies that the family relationship must exist at the time of the act of

smuggling.” Id. (emphasis added). Contrary to my concurring colleagues’ insistence that the

prior language was plain and unambiguous, Congress appears, by amending the statute, to

acknowledge the need to specify an express intent to limit the waiver to relationships in

existence at the time of the violation, rather than at the time of the waiver adjudication.

Furthermore, with perhaps the exception of the canon which cautions that ambiguous

provisions in deportation statutes are to be construed in the alien’s favor, the canons of

construction are applicable in giving meaning to the plain language of a statute. See INS v.

Cardoza-Fonseca, 480 U.S. 421, 449 (1987); see also Moskal v. United States, 498 U.S. 103,

108-09 (1990) (recognizing that words are to be given their ordinary meaning, in context of the

statute overall).

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determinations which have been made as of the date of enactment. IIRIRA

§ 351(c).

Normally, we apply the law in effect to the situation existing at the time of

the adjudication. See Ziffrin v. United States, 318 U.S. 73, 78 (1943).3 If we

accept that the decision in the respondent’s case is not a final one, the respon-

dent cannot benefit from the waiver unless she can establish that “at the time

of the offense,” she had a relationship described by the statute. Furthermore,

although the man the respondent was charged with assisting to enter the

United States was her boyfriend, the couple, who now are husband and wife,

were not married at the time of the offense.

The crux of our decision rests on whether or not there has been a final

determination in this case, and I must agree with the majority that 8 C.F.R.

§ 3.1(d)(2) (1996) controls our conclusion that no such determination has

been made in this case.4 Consequently, I concur in the result reached by the

majority, i.e., that according to the law in effect today, the respondent is not

now eligible for a “smuggling waiver” under section 241(a)(1)(E)(iii) of the

Act to overcome deportability under section 241(a)(1)(E)(i) (smuggling

aliens).5

I write separately to address both the individual circumstances of the

respondent and the legal posture of her case. To begin, I believe it is impor-

tant to put a human face on the respondent and her situation. In addition to the

fact that the respondent’s involvement in bringing her boyfriend into the

United States unlawfully constitutes smuggling and is a violation of law,

there is more to be said about the respondent. She has resided in the United

States since 1981 when she was 11 years of age. On April 28, 1988, she

became a lawful temporary resident of this country. She became a lawful per-

manent resident on June 12, 1992, when she was 22 years old.

Now, at age 27, she has lived in this country for 16 years. She has been a

lawful permanent resident of the United States for 7 years, and has been

3 Congressional enactments will not be read to have retroactive effect unless their language

specifically requires this result. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988);

see also Landgraf v. USI Film Products, 511 U.S. 244, (1995).

4 The Board is bound by the regulations promulgated by the Attorney General, Matter of

Ponce de Leon, 21 I&N Dec. 154 (BIA 1996), and I concur with the majority on that basis.

However, I must take issue with the reasoning contained in the majority decision concerning

the applicability of section 101(a)(47) of the Act (codified at 8 U.S.C. § 1101(a)(47)) to the

finality of our decision in Matter of Farias, supra, as certified to the Attorney General. The

majority reads section 101(a)(47) as pertaining only to finality of deportation orders for

purposes of judicial review. The statutory language does not contain such a limitation, however,

and I see no reason why orders of deportation issued by the Board should be final for purposes of

federal court review, but not final for purposes of review by the Attorney General. Assuming this

provision is applicable equally to either party appellant, in an impartial quasi-judicial system,

the regulation we invoke to determine this appeal may be of questionable force.

5 Redesignated as section 237(a)(1)(E)(i) of the Immigration and Nationality Act by section

305(a)(2) of the IIRIRA, 110 Stat. at 3009-598.

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lawfully domiciled in this country for at least 9 years. And, she was married

on November 20, 1993, to the individual she has been charged with smug-

gling into this country. She is the mother of five children, all citizens of the

United States. The youngest, born of her marriage, is nearly 3 years of age.

For purposes of a “smuggling waiver,” under the statute as it presently

exists, neither the respondent’s residence in the United States of more than 16

years, nor her five children, nor her marriage of 4 years, makes any

difference.

Finally, I believe it important to note that although enforcement objectives

apparently were foremost in Congress’ mind when it enacted section 351 of

the IIRIRA to limit the applicability of the waiver provision, the legislative

history is devoid of any evidence of abuse of the waiver.6 The record before

us is similarly clear of any specific intent on the part of the respondent to take

advantage of the waiver as previously interpreted.7

Furthermore, the immigration violation for which the respondent is

deportable is a civil offense. The respondent is not an aggravated felon and

she has not been convicted of any crime.

As these proceedings were pending before the effective date of the

removal provisions of the IIRIRA, unless the IRIIRA provision is applicable

to proceedings initiated before, on, or after April 1, 1997, the respondent’s

case is governed by the statute previously in effect. See IIRIRA § 309(c), 110

Stat. at 3009-625. There exist other forms of relief that may be available to

the respondent and allow her to keep her family unit together in the United

States. See 8 C.F.R. § 242.17 (1996) (providing that an Immigration Judge

shall inform a respondent of his or her apparent eligibility for any of the bene-

fits referenced in that section).

On remand, the respondent, a long time lawful resident with significant

family ties and other equities, and no record of immigration violations other

than that giving rise to the instant change, may be eligible to seek certain

forms of discretionary relief from deportation, including certain waivers of

deportability. See, e.g., section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994),

as amended by Antiterrorism and Effective Death Penalty Act, Pub. L. No.

104-132, § 440(d), 110 Stat. 1214, 1277 (waiver of inadmissibility and

deportability); section 244(e)(1) of the Act, 8 U.S.C. § 1254(e)(i) (1994)

(voluntary departure).

6 As noted in Matter of Farias, supra, (Holmes, Rosenberg, concurring), under the

pre-amendment law, not only were the number of persons who could qualify for a waiver extremely

limited, but it would be easy to identify and differentiate any efforts to abuse the system.

7 I note that any suggestion that abuse of our immigration system was the sole motivating

factor in the respondent’s marriage is belied by the fact that the respondent had no history of

immigration violations, that her purpose in assisting her boyfriend to enter was personal (and

most probably romantic), and, as noted by her counsel in papers filed below, that the respondent

was over 5 months pregnant by her husband at the time of the 1993 adjudication of her case

before the Immigration Judge.

286