The alien smuggling definition of aggravated felony includes “[a]n offense described in paragraph (1)(a) or (2) of section 274(a) (relating to alien smuggling).” [12]  This aggravated felony category has a statutory exception, which constitutes a safe haven, 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.”[13]

           

This aggravated felony ground refers to a specific federal statute defining an immigration offense.[14]  The noncitizen must have been convicted of violating 8 U.S.C. § 1324(a) to trigger this aggravated felony ground.[15]  A conviction under this section may be considered an aggravated felony for illegal re-entry sentencing purposes even if it is not found to be an aggravated felony for immigration purposes.[16]

 

            A person is not deportable under this aggravated felony ground if the conviction occurred before November 18, 1988.[17]  A person is also 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).[18]  A person who meets either of these requirements should not be held deportable for the conviction.

[12] INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N).  Intelligence Reform and Terrorism Prevention Act of 2004 (“IRTPA”), § 5401, Pub. L. No. 108-458; S. 2845, 108th Congress (signed Dec. 17, 2004), amending INA § 274, 8 U.S.C. § 1324.

[13] Ibid.

[14] INA § 274, 8 U.S.C. § 1324.

[15] See, e.g., Altamirano v. Gonzales, 427 F.3d 586 (9th Cir. Oct. 31, 2005) (mere presence in vehicle at port of entry does not constitute alien smuggling under INA § 212(a)(6)(E)(i), 8 U.S.C. § 1182(a)(6)(E)(i), even if the individual has knowledge that an alien was hiding in the trunk of the vehicle; simple knowledge without encouraging, inducing, assisting, abetting, or aiding is insufficient); United States v. Resendiz-Ponce, 425 F.3d 729 (9th Cir. Oct. 11, 2005) (indictment’s failure to allege any specific overt act that is a substantial step toward entry is a fatal defect in an indictment for attempted entry following deportation under 8 U.S.C. § 1326, requiring dismissal); Tapucu v. Gonzales, 399 F.3d 736, 740-42 (6th Cir. 2005) (driving an undocumented noncitizen to the United States border, and presenting him to the immigration authorities upon inspection, not knowing that the noncitizen is not entitled to enter the United States, at least on a temporary basis, does not constitute “alien smuggling”).

[16] See § 4.40, supra.

[17] See discussion in IRLC § 9.6 (Part B), including discussion of Matter of Lettman, 22 I. & N. Dec. 365 (BIA 1998) (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 unless the BIA disavows it.  The BIA must follow the federal court’s law in its own circuit.

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

Third Circuit

AGGRAVATED FELONY - ALIEN SMUGGLING - AIDING AND ABETTING
Biskupski v. Attorney Gen. of the US, __ F.3d __, 2007 WL 2774528 (3d Cir. Sept. 25, 2007) (federal misdemeanor conviction of violating 8 U.S.C. 1324(a)(2)(A), aiding and abetting alien smuggling, is an "aggravated felony" even though only punishable as a misdemeanor under federal law).

Ninth Circuit

AGGRAVATED FELONY - ALIEN SMUGGLING
United States v. Guzman-Mata, 579 F.3d 1065 (9th Cir. Aug. 27, 2009) (federal conviction for violation of 8 U.S.C. 1324(a)(1)(A) is categorically an "alien smuggling" offense; noncitizen bears burden of showing that "family" exception applies; shift of burden is not impermissible).

NOTE: This case relies upon the reasoning of Nijhawan v. Holder, 557 U.S. __, 129 S.Ct. 2294 (2009).

IMMIGRATION OFFENSES - ALIEN SMUGGLING - CONTINUING OFFENSE TERMINATES WHEN SMUGGLER DROPS THE NONCITIZEN OFF AT A LOCATION WITHIN THE UNITED STATES
United States v. Lopez, 484 F.3d 1186 (9th Cir. May 7, 2007) (bringing a noncitizen to the United States, in violation of 8 U.S.C. 1324(a)(2), is a continuing offense that terminates when the initial transporter who brings the alien to the United States drops off the person at a location in this country), overruling United States v. Ramirez-Martinez, 273 F.3d 903, and United States v. Angwin, 271 F.3d 786.