(A)  Aiding and Abetting.  For nearly all aggravated felony categories, there is an argument that when Congress expressly included the non-substantive offenses of attempt and conspiracy, it in effect excluded all other non-substantive offenses, such as aiding and abetting.  See § 5.3, supra.  This does not hold in the case of the alien smuggling aggravated felony category, however, because the listed federal criminal offenses themselves expressly list aiding and abetting as part of the proscribed conduct.[19]

 

            An alternative plea, in place of smuggling in federal court, might be aiding and abetting someone else’s illegal entry into the United States.[20]  This offense contains the factual elements of smuggling, but because it is not a plea to the offense [21] listed in the aggravated felony definition,[22] it is not an aggravated felony.  It may, however, trigger deportation under the conduct-based alien smuggling ground of deportation.[23]  This disposition would also offer the possible “aiding and abetting” safe haven.  See § 5.3, supra.

[19] INA § 274(a)(1)(A)(v)(II), 8 U.S.C. § 1324(a)(1)(A)(v)(II) (“aids or abets the commission of any of the preceding [alien smuggling, harboring, or transporting] acts . . . .”).  See United States v. Garcia, 400 F.3d 816 (9th Cir. Mar. 11, 2005) (aiding and abetting is not a separate offense from the substantive offenses of alien smuggling and transportation of aliens, but rather a different theory of liability for the same offense).

[20] 18 U.S.C. § 2; INA § 275, 8 U.S.C. § 1325.

[21] INA § 274(a), 8 U.S.C. § 1324(a).

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

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

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.