A number of courts[2] have held that a conviction for harboring illegal aliens[3] is an aggravated felony, since harboring is “relating to” alien smuggling.[4]  These decisions are in line with the BIA’s rejection, in Matter of  Ruiz-Romero,[5]  of the argument that the parenthetical reference limited the class of aggravated felonies to actual alien smuggling, and with recent decisions finding that the offense of transporting noncitizens within the United States likewise qualifies as an aggravated felony.[6] 

 

Where this issue has not yet been decided, there is an argument to the contrary.  The ordinary meaning[7] of “alien smuggling” does not include harboring of noncitizens within the United States, since smuggling requires that a border be crossed.  In her dissent, Board Member Rosenberg lambasted the Ruiz-Romero decision, reviewing the vernacular, common law, statutory and case law definitions of the terms “smuggling” and “transporting,” as well as principles of statutory construction and the rule of lenity.  At least one federal court has agreed.[8]  These issues should be raised on appeal to federal courts.[9]

           

Because harboring is similar to accessory after the fact,[10] it is important also to consider whether a conviction for harboring may constitute an aggravated felony under an obstruction of justice theory.[11]  To qualify under that theory, a sentence of one year or more must be imposed.

[2] United States v. Martinez-Candejas, 347 F.3d 853 (10th Cir. Oct. 21, 2003) (alien smuggling aggravated felony includes transportation and harboring for sentencing purposes); Patel v. Ashcroft, 294 F.3d 465 (3d Cir. June 20, 2002) (federal conviction of harboring an undocumented noncitizen, in violation of INA § 101(a)(1)(A), 8 U.S.C. § 1324(a)(1)(A), met the definition of an “aggravated felony” under INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N), for immigration purposes, despite the fact that defendant had no part in the harbored person’s illegal admission or entry into the United States); Gavilan-Cuate v. Yetter, 276 F.3d 418 (8th Cir. Jan. 9, 2002) (federal conviction of conspiracy to transport and harbor illegal aliens, in violation of INA § § 274(a)(1)(A)(ii) and (iii), 8 U.S.C. § § 1324(a)(1)(A)(ii) and (iii), constituted aggravated felony under INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N), despite parenthetical mentioning smuggling); Castro-Espinoza v. Ashcroft, 257 F.3d 1130 (9th Cir. 2001); Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. 2000); United States v. Monjaras-Castaneda, 190 F.3d 326, 331 (5th Cir. 1999) (same issue in sentencing context).

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

[4] INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N).  See § 5.5, infra.

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

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

[7] See Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (2004) (Supreme Court looks to “ordinary meaning” of the term to conclude that accidental injury does not fall within ordinary meaning of “crime of violence” aggravated felony definition).

[8] Gavilan-Cuate v Yetter, 94 F.Supp.2d 1039 (D.C. Minn. 2000) (district court upheld magistrate’s finding that conviction of conspiracy to transport and harbor did not come within the aggravated felony definition of “alien smuggling” set out at INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N)).

[9] For a sample brief on the “relating to alien smuggling” issue (written before Ruiz-Romero was decided), see the brief bank of the National Immigration Project of the National Lawyers Guild, on line in the National Immigration Project section at http:\\www.nationalimmigrationproject.org, or contact the Project at (617) 227-9727.

[10] United States v. Martinez-Candejas, 347 F.3d 853 (10th Cir. Oct. 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).

[11] See § 5.2 “Accessory After the Fact,” supra, and § 5.63 “Obstruction of Justice,” infra.

Fifth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
Smith v. Gonzales, ___ F.3d ___ (5th Cir. Oct. 24, 2006) (second state misdemeanor conviction for possession of marijuana did not qualify as an "aggravated felony" for immigration purposes because second possession only becomes a felony under federal law upon conviction of a second offense after conviction of a prior simple possession; in this case, there was no effective prior conviction under 21 U.S.C. 844(a) because the first conviction was not yet final). http://caselaw.lp.findlaw.com/data2/circs/5th/0660020cv0p.pdf