Safe Havens

(D)  Other Grounds of Deportation.  Alien smuggling conduct may trigger deportability or inadmissibility 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 deportation ground, regardless of whether s/he has been convicted of the federal criminal offense.  See § 7.190, infra.[297]  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 this non-conviction ground of removal are available.[298]  Alien harboring and transporting are not included in these conduct-based removal grounds. 

            A conviction of the criminal offense of alien smuggling has been held not to constitute a crime involving moral turpitude.[299]

            The statute defining alien smuggling was amended[300] to increase the penalty to up to 10 years for persons who bring noncitizens into the United States, in violation of that section, and (1) the offense was part of an ongoing enterprise, (2) the noncitizens were transported in groups of 10 or more, and (3) the noncitizens were transported in a manner that endangered their lives, or the noncitizens themselves presented a life-threatening health risk to the people in the United States.[301]

            It is important to examine the checklist of general aggravated felony safe havens to determine whether each offense or conviction being examined falls within one or more of the safe havens listed there.  See § 7.29, supra.

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

[298] See K. BRADY, California Criminal Law And Immigration § 6.12 (2004).

[299] See Matter of Tiwari, 19 I. & N. Dec. 875 (BIA 1989) (alien smuggling is not a crime involving moral turpitude), quoting United States v. Merkt, 794 F.2d 950 (5th Cir. 1986); United States v. Elder, 601 F.Supp. 1574 (S.D. Tx. 1985).

[300] Intelligence Reform and Terrorism Prevention Act of 2004 (“IRTPA”), § 5401, amending INA § 274, 8 U.S.C. § 1324

[301] Intelligence Reform and Terrorism Prevention Act of 2004 (“IRTPA”), § 5401, Pub. L. No. 108-458; S. 2845, 108th Congress (signed Dec. 17, 2004).