See “Alien Smuggling,” § 7.32, supra.  The Fifth and Ninth Circuits have held that a conviction for transporting illegal aliens is an aggravated felony,[302] as “relating to” alien smuggling.[303]  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,[304] and with recent decisions finding that the offense of harboring noncitizens likewise qualifies as an aggravated felony.[305]

 

            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.”[306]

            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.

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

[303] United States v. Galindo-Gallegos, 244 F.3d 728 (9th Cir. 2001); United States v. Solis-Campozano, 312 F.3d 164 (5th Cir. Nov. 12, 2002) (federal conviction for transporting aliens within the United States, in violation of INA § 274(a)(1)(A)(ii), 8 U.S.C. § 1324(a)(1)(A)(ii), was an “alien smuggling offense” within meaning of the Sentencing Guidelines for purpose of constituting an aggravated felony to enhance a sentence under U.S.S.G. § 2L1.2(b)(1)(A)(vii) for illegal re-entry).

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

[305] Castro-Espinoza v. Ashcroft, 257 F.3d 1130 (9th Cir. 2001); Patel v. Ashcroft, 294 F.3d 465 (3d Cir. June 20, 2002) (conviction of harboring an alien in violation of INA § 274(a)(1)(A)(iii), 8 U.S.C. § 1324(a)(1)(A)(iii), constituted an aggravated felony, because “the parenthetical: “relating to alien smuggling” in INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N), is descriptive and not restrictive.  The phrase is nothing more than a short-hand description of all of the offenses listed in INA § 274(a)(1)(A), U.S.C. § 1324(a)(1)(A).  Congress did not intend it to be a substantive restriction limiting which of the several offenses specified in INA § 274(a)(1)(A), 8 U.S.C. § 1324(a)(1)(A) applies to INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N)); accord Gavilan-Cuate v. Yetter, 276 F.3d 418 (8th Cir. 2002); Castro-Espinosa v. Ashcroft, 257 F.3d 1130 (9th Cir. 2001); United States v. Galindo-Gallegos, 244 F.3d 728 (9th Cir. 2001); United States v. Salas-Mendoza, 237 F.3d 1246 (10th Cir. 2001); Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. 2000); United States v. Monjaras-Castaneda, 190 F.3d 326 (5th Cir. 1999).

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

AGGRAVATED FELONY - ALIEN TRANSPORTATION - ORDINARY MEANING OF ALIEN SMUGGLING DOES NOT INCLUDE TRANSPORTATION OF ALIENS WITHIN THE UNITED STATES
The ordinary meaning of "alien smuggling" does not include transportation 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.