In a pretrial diversion statement, the Respondent admitted commission of and accepted

responsibility for conspiracy under 18 U.S. Code 31 as related to offenses char!ed in

18 USC 1"#8 $a%$1%, $#%, and $&% $produce, transfer and possess 'ithout la'ful
authority an identification document or false identification documents% and 8 USC 13#(
$a%$1%$)%$iv% $*no'in!ly encoura!e or induce an alien to come, enter or reside in the U.S.
in violation of la'%. +y si!nin! the pretrial diversion a!reement, she 'as placed on a
one,year period of probation, after 'hich her case 'as dismissed. -he Respondent does
not have a conviction for 18 USC 31, 18 USC 1"#8 or 8 USC 13#(.
In her .otice to )ppear, the Respondent 'as char!ed 'ith removability based on I.)
#1# $a%$#%$)%$i%$I% $CI/-% and I.) #1# $a%$&%$0%$i% $encoura!e, induce, assist, abet or
aid a person to enter or try to enter the U.S. in violation of la'%. -he #1# $CI/-%
char!e 'as based on her admission in the pretrial diversion a!reement of conspirin! to
commit acts described in 18 USC 1"#8. -he #1# $a%$&%$0% char!e 'as based on her
admission of conspirin! to commit acts described in 8 USC 13(#. -he Respondent
admitted her removability under I.) #1# $a%$#%$)%$i%$I%, and contested her removability
under I.) #1# $a%$&%$0%. She also denied the factual alle!ations related to the second
char!e.
-he facts in the .-) alle!e that the Respondent had encoura!ed or assisted 1eninah
2an!ui to enter the U.S. in violation of la' and that she 'as involved in a lar!e scale
conspiracy to provide social security cards obtained by fraudulent means to multiple
ille!al aliens. )s a result, an additional factual alle!ation indicates that ille!al aliens 'ere
able to obtain le!itimate documents to remain and 'or* in the U.S. 'ithout authori3ation.
)t the hearin!, counsel for the !overnment submitted a record of investi!ation that
documented the 4overnment5s efforts to investi!ate the Respondent5s husband and other
individuals
1
. -he Respondent5s name is mentioned in the report, but in the conte6t of
havin! personally en!a!ed in the activities. )t her hearin!, the Respondent testified that
she invited a friend from 7enya, 1eninah, to come to the United States to attend her
'eddin!. She denied havin! aided or abetted any person in enterin! the U.S. ille!ally or
havin! other'ise assisted a person to reside in the U.S. in violation of la'.
I.) #1#$a%$&%$0% does not rely on a conviction or an admission. -he statute declares
that an alien 'ho encoura!es, induces, assists, abets or aids a person to enter or try to
enter the U.S. in violation of la' is inadmissible. -herefore, inadmissibility depends on
evidence that the Respondent has committed the acts described therein. -he statute also
does not indicate the inclusion of a conspiracy to commit the acts described therein.
0lse'here in the I.), 'here Con!ress intended to incorporate one5s conspiracy to
commit an act as sufficient to form a basis or inadmissibility or removal, it has been
specifically states as such. -he present Respondent admitted, for purposes of reachin! a
pre,trial diversion a!reement, that she committed the act of conspiracy. .o evidence 'as
submitted of the Respondent5s actual commission of the acts described in 18 USC 1"#8
or 8 USC 13#(. +ased on her o'n testimony at her individual hearin!, the Respondent
denied havin! actually encoura!ed or other'ise aided 1eninah 2an!ui or any other
person to enter the U.S. in violation of la'.
1
-he Respondent5s husband 'as convicted of his role in the alle!ed conspiracy.
I.) #1# $a%$&%$0% is not based on a Respondent5s conviction, but the actual commission
of the acts described therein. In the Respondent5s case, if held !uilty or responsible for
conspirin! 'ith parties 'ho subse8uently en!a!ed in the acts described in #1# $a%$&%$0%,
it is not an established fact that she herself actually encoura!ed, assisted, aided or
committed any of the other acts re8uired under #1#$a%$&%$0%. )s such, 'e ur!e the +oard
to hold that the Immi!ration 9ud!e erred in sustainin! this char!e of inadmissibility.
)t her individual hearin!, the Immi!ration 9ud!e allo'ed a brief line of direct
8uestionin! of the Respondent by her counsel before indicatin! that further 8uestionin!
mi!ht result in a findin! of material misrepresentation $in li!ht of the fact that the
Respondent had already made certain admissions in the pretrial diversion a!reement%
'hich mi!ht result in a discretionary denial of her asylum application. -he 9ud!e also
indicated several times at prior master calendar hearin!s, as 'ell as durin! the individual
hearin!, that he 'as inclined to sustain the char!e. )t the ris* of :eopardi3in! her re8uest
for asylum;'ithholdin!, therefore, 'ithout the possibility of the 9ud!e decidin! not to
sustain the char!e, counsel ended the line of 8uestionin!. )s the Respondent5s
contestation of the char!e and denial of the facts alle!ed is on the record, as 'ell as her
o'n testimony denyin! the acts formin! the basis of the factual alle!ations, 'e re8uest
that the +oard address this issue on appeal.
Should the +oard find that the Respondent is not inadmissible under I.) #1# $a%$&%$0%,
it 'ould be appropriate to remand her case to the Immi!ration 9ud!e for revie' of her
denied application for ad:ustment of status
#
.
#
-he Respondent5s ad:ustment case 'as denied for reasons that may be 'aiveable.