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9th Cir: "mere presence and acquiesence" does not constitute alien smuggling Print E-mail
Wednesday, 30 July 2008

Aguilar Gonzales v. Mukasey (9th Cir. 7/28/08)

FLETCHER King (dct) - Smith (dissenting)

The 9th Cir found that a woman who loaned her kids' birth certificates to her father and sat there while he tried to use them to smuggle other kids into the country had not been shown to have engaged herself in smuggling.  The CtApp held that "mere presence and acquiescence" do not constitute smuggling, as a matter of law.

Dissent - result is unfair and unfortunate, but the law says she's not eligible. Acquiescence is indeed not an affirmative act, and so does not constitute smuggling - but what happened here was not merely acquiescence. An oral statement (in this case, permission for her father to use the birth certificates) can be an affirmative act: "in my view, Modesta’s agreement that her father could use her son’s birth certificate was “an affirmative act of assistance” sufficient to constitute alien smuggling under INA § 212(a)(6)(E)(i) and Altamirano. The fact that she was “reluctant” to do so and agreed only to avoid disappointing her father does not change this result."

Read decision here: 

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Elizabeth SALCIDO   | 71.128.198.138 | 2008-09-18 15:41:07
Modesta was not only reluctant but voiced her objection several times. She did not give her father the birth certificate he took it from her. She was raised to respect her father's decisions and lived under the same roof with him. There were many details in her case, which are not found in the decision, that made her case and circumstances unique.
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Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.
 
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