(E)  Non-Substantive Offenses.  Congress provided a noncitizen is deportable under this ground if s/he “knowingly has encouraged, induced, assisted, abetted, or aided any other noncitizen to enter or to try to enter the United States in violation of law is deportable.”[1368]  Thus, Congress specifically included the non-substantive offenses of aiding and abetting, and soliciting, illegal entry.  It did not, however, list conspiracy, accessory after the fact, misprision of a felony, or any other non-substantive offense.  These latter unlisted non-substantive offenses would therefore constitute safe haven conduct.  See § § 7.8-7.13, supra.

[1368] INA § 237(a)(1)(E)(i), 8 U.S.C. § 1227(a)(1)(E)(i).

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