PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.
Hunter, Biggs and Garth, Circuit Judges.
This case comes before us on a petition for review of an order of the Board of Immigration Appeals.*fn1 The Board, with one member dissenting, dismissed an appeal from a decision of the Immigration Judge which had ordered petitioner deported under Section 241(a) (13) of the Immigration and Naturalization Act, 8 U.S.C. § 1251 (a) (13):
Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who --
prior to, or at the time of any entry, or at any time within five years after any entry, shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.
Petitioner contends that the deportation order must be vacated because
1) the government has failed to prove that he acted "for gain;"
2) the government has failed to prove that he acted "knowingly" within the meaning of the statute; and
3) the Order to Show Cause upon which he was ordered deported was defective.
In view of our conclusion that the deportation order must be set aside on the first point, we have no occasion to discuss the other issues.
The following facts are not controverted in the record. On March 23, 1974, petitioner, a resident of Union, New Jersey, received a phone call from a Mr. Aucides in Montreal.*fn2 Aucides stated that there were three individuals from Portugal in Montreal who wished to enter the United States but lacked transportation. Aucides asked petitioner to arrange for someone to drive from New Jersey to Montreal. The financial arrangements were as follows: petitioner was to pay the driver $100 in advance, Aucides was to give the driver $150 on leaving Montreal, and petitioner was to receive the $150 by meeting the returning auto at a point on the New York State Thruway near Albany. Petitioner carried out his part of the arrangement, but after driving to the rendezvous point and waiting for one half hour, he departed, apparently empty-handed.
After petitioner made a statement to the Immigration Service in Albany concerning these events, the Service issued an Order to Show Cause why petitioner should not be deported, and the matter came on for hearing on June 18, 1974.
At the hearing, the Government introduced petitioner's statement to the Immigration Service. Petitioner testified that the $150 he was to receive represented a reimbursement of the $100 initial outlay and an additional amount to cover the expenses of the round trip from Union to Albany. ...