A number of circuit courts have held that a conviction for transporting illegal aliens is an aggravated felony,[26] as “relating to” alien smuggling.[27]  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,[28] and with recent decisions finding that the offense of harboring noncitizens likewise qualifies as an aggravated felony.[29]  Where this issue has not been decided, there is an argument to the contrary.  See § 5.4, supra.

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

[27] 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); 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); Gavilan-Cuate v. Yetter, 276 F.3d 418 (8th Cir. Jan. 9, 2002); United States v. Galindo-Gallegos, 244 F.3d 728 (9th Cir. 2001); Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. Mar. 3, 2000).

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

[29] 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).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 U.S.C. 16(b) " FALSE IMPRISONMENT
Barragan-Lopez v. Holder, 705 F.3d 1112 (9th Cir. Jan. 29, 2013) (California conviction of false imprisonment, in violation of California Penal Code 210.5 [false imprisonment under 236, for purposes of protection from arrest, which substantially increases the risk of harm to the victim], is categorically a crime of violence under 18 U.S.C. 16(b), because it involves a substantial risk that force may be used, and petitioner was thus removable as an aggravated felon) under INA 101(a)(43)(F), 8 U.S.C. 1101(A)(43)(f)). Note: This case did not address California Penal Code 236 by itself, but rather as enhanced under Penal Code 210.5, which includes the additional element of specific intent of avoid arrest, substantially increasing the risk of harm to the victim.