United States v. Hsi Huei Tsai

282 F.3d 690 UNITED STATES of America, Plaintiff-Appellee, v. Hsi Huei TSAI, Defendant-Appellant. No. 00-10483. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 1, 2001. Filed March 5, 2002. COPYRIGHT MATERIAL OMITTED Robert Hartsock, J. Basil O'Mallan, III, Hagatna, GU, for the appellant. Karon V. Johnson, Assistant United States Attorney, Frederick A. Black, United States Attorney, Hagatna, GU, for the appellee. Appeal from the United States District Court for the District of Guam, John S. Unpingco, District Judge, Presiding. D.C. No. CR-99-00129-JSU. Before: THOMPSON, O'SCANNLAIN, and BERZON, Circuit Judges. Opinion by Judge O'SCANNLAIN; Concurrence by Judge BERZON O'SCANNLAIN, Circuit Judge. 1 We must decide several issues under the Fourth Amendment and the alien smuggling statutes presented by a scheme to bring Chinese aliens into the United States via Guam and Hawaii for financial gain. 2 * On October 19, 1999, an Immigration and Naturalization Service (INS) agent stationed at Guam International Airport stopped two passengers attempting to board a flight to Honolulu. When they were unable to answer his questions, they were taken into custody and…

Opinion by Judge O’SCANNLAIN; Concurrence by Judge BERZON

We must decide several issues under the Fourth Amendment and the alien smuggling statutes presented by a scheme to bring Chinese aliens into the United States via Guam and Hawaii for financial gain.

I

On October 19, 1999, an Immigration and Naturalization Service (INS) agent stationed at Guam International Airport stopped two passengers attempting to *693 board a flight to Honolulu. When they were unable to answer his questions, they were taken into custody and their Taiwanese passports discovered to be photo-substitutions (ie., legitimate passports with the bearers’ photographs substituted for the originals). Their real names were He and Chen. Among their belongings were return tickets from Guam to Saipan, in the Commonwealth of the Northern Mariana Islands (CNMI), and a brochure for a Guam hotel, the Sherwood Resort. A check of the hotel’s records for the room in which the two had stayed turned up the name and credit card imprint of appellant Hsi Huei Tsai. A review of flight manifests revealed that Tsai was a passenger on the flight He and Chen had attempted to board; that he had also been on the same flight that He…

Concurring.

Although I agree with Parts I, III, IV and V of the majority’s opinion and with the result reached, I write separately with regard to Part II.

As to Part II, I would also conclude that the district court did not err in denying the motion to suppress the search. However, I would rely only on the second ground of the majority’s opinion — that “Inspector Westlake had reasonable cause to believe that Tsai had rendered himself inadmissible by aiding and abetting aliens in their attempt to enter the United States illegally.” See 8 U.S.C. § 1182 (a)(6)(E)© (1994). There is no reason to reach any other question concerning the validity of the search.

As explained in footnote 5 of the majority opinion, although he was coming from Guam, Tsai could properly be “regarded as seeking admission” to the United States. Tsai was therefore subject to removal or denial of admission if he were found to have aided or abetted another alien’s attempted or successful illegal entry into the United States, and there was by the time of the search reasonable cause to believe that he had done so. 8 U.S.C. § 1182 (a)(6)(E)® & (d)(7). The INS has statutory authority to search without a warrant in…