Counsel can argue that harboring is not an offense “relating to alien smuggling,” as the statute requires, and therefore a conviction of harboring does not fall within the alien smuggling aggravated felony category.  See “Alien Smuggling,” § 7.32, infra. 

 

            Because harboring is similar to accessory after the fact,[272] it is important also to consider whether a conviction for harboring may constitute an aggravated felony under an obstruction of justice theory.[273] 

 

The Ninth Circuit has held that a conviction for harboring illegal aliens[274] is an aggravated felony,[275] as “relating to” alien smuggling.[276]  This decision is in line with the BIA’s rejection of the argument that the parenthetical reference limited the class of aggravated felonies to actual alien smuggling,[277] and with recent decisions finding that the offense of transporting noncitizens within the United States likewise qualifies as an aggravated felony.[278]  For the contrary argument, see “Alien Smuggling,” discussion, § 7.32, infra.

 

            It is important to remember that there is a statutory exception to this aggravated felony, for “a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting or aiding only the alien’s spouse, child or parent (and no other individual) to violate a provision of this Act.”[279]

 

            A person is not deportable under the alien smuggling aggravated felony ground if the conviction occurred before November 18, 1988[280] or before lawful admission.  A person is not deportable for alien smuggling if s/he committed the offense more than five years after entry (e.g., s/he encouraged another person to enter illegally without leaving the U.S. him- or herself).[281]  A person who meets both of those requirements should not be held deportable for the conviction.

            It is important to examine the checklist of general aggravated felony safe havens to determine whether each offense or conviction being examined falls within one or more of the safe havens listed there.  See § 7.29, supra.

 

[272] United States v. Martinez-Candejas, 347 F.3d 853 (10th Cir. October 21, 2003) (alien smuggling includes transportation and harboring for purposes of 16-level enhancement of illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(1)(A)(vii) (2002) based on prior aggravated felony conviction).

[273] See § 7.30 “Accessory After the Fact,” supra, and § 7.89 “Obstruction of Justice,” infra.

[274] INA § 274(a)(1)(A)(iii), 8 U.S.C. § 1324(a)(1)(A)(iii).

[275] INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N).

[276] Castro-Espinoza v. Ashcroft, 257 F.3d 1130 (9th Cir. 2001).

[277] Matter of Ruiz-Romero, 22 I. & N. Dec. 486 (BIA 1999).

[278] United States v. Galindo-Gallegos, 244 F.3d 728 (9th Cir. 2001).

[279] INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N).

[280] See discussion in IRLC § 9.6 (Part B), including discussion of Matter of Lettman, 22 I. & N. Dec. 365 (BIA 1998) (new analysis that deportation ground applies regardless of date of conviction in proceedings begun on or after March 1, 1991), reversed by Lettman v. Reno, 168 F.3d 463 (11th Cir. 1999).  Criminal practitioners should note that in the strange administrative law world of immigration, a federal court can reverse a case, but the BIA opinion below can remain in effect as a rule in other circuits until the BIA disavows it.  The BIA must follow the federal court’s law in its own circuit.

[281] See INA § 237(a)(1)(E), 8 U.S.C. § 1227(a)(1)(E).

AGGRAVATED FELONY - ALIEN HARBORING - ORDINARY MEANING OF ALIEN SMUGGLING DOES NOT INCLUDE HARBORING OF ALIENS WITHIN THE UNITED STATES
The ordinary meaning of "alien smuggling" does not include harboring of noncitizens within the United States, but requires a border be crossed. See Leocal v. Ashcroft, 543 U.S. ___, 160 L. Ed. 2d 271, 125 S. Ct. 377 (2004)(Supreme Court uses "ordinary meaning" approach to conclude that accidental injury does not fall within ordinary meaning of "crime of violence" aggravated felony definition: "In construing both parts of 16, we cannot forget that we ultimately are determining the meaning of the term crime of violence. The ordinary meaning of this term, combined with 16's emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses."). This argument could be raised to argue against United States v. Martinez-Candejas, 347 F.3d 853 (10th Cir. October 21, 2003) (alien smuggling includes transportation and harboring for purposes of 16-level enhancement of illegal reentry sentence under U.S.S.G. 2L1.2(b)(1)(A)(vii)(2002) based on prior aggravated felony conviction), Matter of Ruiz-Romero, Int. Dec. 3376 (BIA 1999), and similar cases.