Aggravated Felonies

(C)  Family Relationship Exception.  This aggravated felony category includes an express exception 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 . . . .”[223]  There is no requirement in this section that the family relationship had to exist at the time that the offense occurred.  A noncitizen who assisted someone who later became a spouse, child or parent after the offense was committed (e.g., through marriage, creation of step-relationship, or adoption) therefore comes within the family relationship exception, and the conviction would therefore fall outside this definition of an aggravated felony.[224]

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

[224] In contrast, the deportation waiver for alien smuggling specifically requires the family relationship to have existed at the time of smuggling.  Compare INA § 237(a)(1)(E)(iii), 8 U.S.C. § 1227(a)(1)(E)(iii) (smuggling waiver of deportability requires that the family relationship had to exist “at the time of the offense”), with INA § 101(a)(43)(P), 8 U.S.C. § 1101(a)(43)(P) (family relationship exception to document fraud aggravated felony definition does not contain this limiting language).  Because Congress explicitly imposed the requirement upon the deportation waiver but not the aggravated felony exception, rules of statutory construction dictate that the requirement does not apply to the aggravated felony exception.