(D)  Safe Havens Specific to this Category.  There are a number of safe havens specific to this category.

 

      (1)  Alien Harboring and Transportation Conduct.  This ground is triggered only by conduct that knowingly encouraged, induced, assisted, abetted, or aided any other noncitizen to enter or try to enter the United States in violation of law.[1360]  Unlike the statute defining criminal offenses related to alien smuggling, harboring, and transporting,[1361] and unlike the aggravated felony triggered by a criminal conviction of the same three offenses, this conduct-based ground of deportation is based only on alien smuggling conduct, and conduct related to harboring an undocumented noncitizen or transporting one within the United States will not trigger deportation under this ground, unless they also aided in the unlawful entry itself.[1362]

            (2)  Requirement of Knowing Conduct.  The smuggling or attempted smuggling conduct must be done knowingly.  Knowing participation may be shown, for example, by a misrepresentation, which “may be made as effectively by conduct as by words.”[1363]  A conviction of “aiding and abetting” alien smuggling under § INA § 274(a)(1)(A), 8 U.S.C. § 1324(a)(1)(A) establishes the element of knowledge.[1364]  The immigration court may not look behind the conviction to make an independent determination of “knowledge.”[1365]

 

            (3)  Requirement that Conduct Occur Within Five Years of Entry.  Under the former Fleuti doctrine, a returning permanent resident’s departure did not constitute a meaningful departure and re-entry if the trip was brief, innocent and casual.[1366]  If a respondent did not enter when s/he smuggled the noncitizens, and the last entry was more than five years prior to the smuggling incident, then s/he would not be deportable.  The five-year timing requirement is not avoided by the fact that the entry followed an otherwise non-meaningful interruption of the person’s permanent resident status in the United States, in which case there would not be an entry.  The engaging in this activity renders the departure non-innocent, and, therefore, meaningful.  Consequently, an entry results, regardless of the brevity of the absence from the United States.[1367]

[1360] INA § 237(a)(1)(E)(i), 8 U.S.C. § 1227(a)(1)(E)(i).

[1361] INA § 274(a), 8 U.S.C. § 1324(a).

[1362] See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § § 63.07[5], 111.08[2][a] (2004).

[1363] Sanchez-Marquez v. INS, 725 F.2d 61, 62 n.3 (7th Cir. 1984).

[1364] Matter of Payan, 14 I. & N. Dec. 58 (BIA 1972).

[1365] Longoria-Casteneda v. INS, 548 F.2d 233 (8th Cir. 1977).

[1366] Rosenberg v. Fleuti, 374 U.S. 449 (1963).  See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § § 5:1-5:6 (2004), for full discussion of the re-entry doctrine.  See INA § 101(a)(13), 8 U.S.C. § 1101(a)(13).  The statutory definition of admission creates a presumption that a returning permanent resident is not seeking to make a new admission unless s/he falls under one of the express exceptions listed in the statute.

[1367] Matter of Contreras, 18 I. & N. Dec. 30 (BIA 1981); Langoria-Castenada v. INS, 548 F.2d 233 (8th Cir. 1977); Laredo-Miranda v. INS, 555 F.2d 1242 (5th Cir. 1977); Palatian v. INS, 502 F.2d 1091 (9th Cir. 1974); Cuevas-Cuevas v. INS, 523 F.2d 883 (9th Cir. 1975).

Ninth Circuit

DEPORTATION - GROUNDS - ALIEN SMUGGLING
Garcia-Quintero v. Gonzales, ___ F.3d ___, 2006 WL 2042896 (9th Cir. Jul. 24, 2006) (where government called respondent to testify against himself at removal hearing to establish conduct-based alien smuggling ground of deportation, immigration judge did not err in refusing to allow respondent's counsel to assert Fifth Amendment privilege against self-incrimination on his behalf, but requiring respondent to assert the privilege personally in response to each question, and sustained finding of deportability for admission of alien smuggling where respondent finally answered government questions without objection from respondent's counsel). http://caselaw.lp.findlaw.com/data2/circs/9th/0373930p.pdf

DEPORTATION - GROUNDS - CONDUCT-BASED GROUNDS - CONDUCT OF HEARING - TESTIMONY OF RESPONDENT
Garcia-Quintero v. Gonzales, ___ F.3d ___, 2006 WL 2042896 (9th Cir. Jul. 24, 2006) (where government called respondent to testify against himself at removal hearing to establish conduct-based alien smuggling ground of deportation, immigration judge did not err in refusing to allow respondent's counsel to assert Fifth Amendment privilege against self-incrimination on his behalf, but requiring respondent to assert the privilege personally in response to each question, and sustained finding of deportability for admission of alien smuggling where respondent finally answered government questions without objection from respondent's counsel). http://caselaw.lp.findlaw.com/data2/circs/9th/0373930p.pdf

AIDING AND ABETTING - AFFIRMITVE ACT REQUIRED
Altamirano v. Gonzales, ___ F.3d ___, 2005 WL 2839982 (9th Cir. Oct. 31, 2005) (mere presence in vehicle at port of entry does not constitute alien smuggling under INA 212(a)(6)(E)(i), 8 U.S.C. 1182(a)(6)(E)(i), even if the individual has knowledge that an alien was hiding in the trunk of the vehicle; simple knowledge encouraging, inducing, assisting, abetting, or aiding is insufficient). See also, Tapucu v. Gonzales, 399 F.3d 736, 740-42 (6th Cir. 2005) (some affirmative act required).
http://caselaw.lp.findlaw.com/data2/circs/9th/0370737p.pdf

ALIEN SMUGGLING - MERE PRESENCE IN VEHICLE AT PORT OF ENTRY NOT SMUGGLING EVEN WITH KNOWLEDGE ALIEN HIDING IN TRUNK
Altamirano v. Gonzales, ___ F.3d ___, 2005 WL 2839982 (9th Cir. Oct. 31, 2005) (mere presence in vehicle at port of entry does not constitute alien smuggling under INA 212(a)(6)(E)(i), 8 U.S.C. 1182(a)(6)(E)(i), even if the individual has knowledge that an alien was hiding in the trunk of the vehicle; simple knowledge encouraging, inducing, assisting, abetting, or aiding is insufficient). See also, Tapucu v. Gonzales, 399 F.3d 736, 740-42 (6th Cir. 2005) (some affirmative act required).
http://caselaw.lp.findlaw.com/data2/circs/9th/0370737p.pdf

ILLEGAL REENTRY - ELEMENTS - OVERT ACT -SUFFICIENCY OF INDICTMENT
Resendiz v. Ponce, ___ F.3d ___, 2005 WL 249730 (9th Cir. Oct. 11, 2005) (indictment's failure to allege any specific overt act that is a substantial step toward entry is a fatal defect in an indictment for attempted entry following deportation under 8 U.S.C. 1326, requiring dismissal).
http://caselaw.lp.findlaw.com/data2/circs/9th/0410302p.pdf