Criminal Defense of Immigrants

(B)  Affirmative Act.  At least two courts have found that the government must show some affirmative act to sustain removability under this ground.  In Altamirano v. Gonzales,[203] the Ninth Circuit held that proof of the mere presence of a noncitizen in a vehicle at port of entry is not sufficient to sustain a finding of alien smuggling, even where the noncitizen had knowledge that a noncitizen was hiding in the trunk of the vehicle.

[203] Altamirano v. Gonzales, 427 F.3d 586 (9th Cir. Oct. 31, 2005).  See also Tapucu v. Gonzales, 399 F.3d 736, 740-42 (6th Cir. 2005) (some affirmative act required).