(B)  Other Grounds of Deportation.  Alien smuggling conduct may trigger deportability or inadmissibility under other grounds even if there is no conviction.  A person who has aided, assisted or encouraged others to enter the U.S. illegally is inadmissible and deportable under the “alien smuggling” conduct-based removal grounds, regardless of whether s/he has been convicted of the federal criminal offense.[24] Therefore, criminal counsel should aid the client to avoid making any admission of this conduct that might come to the attention of the immigration authorities, even if the client successfully avoids a conviction of this criminal offense.  Some waivers of these non-conviction ground of removal are available.[25]  Alien harboring and transporting are not included in these conduct-based alien smuggling removal grounds.

[24] INA § 237(a)(1)(E)(i), 8 U.S.C. § 1227(a)(1)(E)(i); INA § 212(a)(6)(E), 8 U.S.C. § 1182(a)(6)(E).

[25] See ILRC § 6.12 (2004).

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.