Safe Havens

(A)  Aggravated Felonies.

            The statute includes as an aggravated felony “an offense described in § § 275(a) or 276 committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph . . . .”[190]   See § 7.83, supra.  The statutes referred to are codified in 8 U.S.C. § § 1325(a) and 1326.[191]  Illegal re-entry is not considered the same as alien smuggling for aggravated felony purposes.

Board of Immigration Appeals:

Matter of Alvarado-Alvino, 22 I. & N. Dec. 718 (BIA 1999) (conviction of illegal entry, in violation of INA § 275(a), 8 U.S.C. § 1325 (Supp. II 1996), is not an aggravated felony under INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N) (Supp. II 1996), which specifically refers to those offenses relating to alien smuggling described in INA § § 274(a)(1)(A) and (2), 8 U.S.C. § 1324(a)(1)(A) and (2) (Supp. II 1996)).

Fifth Circuit:

Rivera-Sanchez v. Reno, 198 F.3d 545 (5th Cir. Dec. 30, 1999) (federal conviction of violating 8 U.S.C. § 1325(a) is outside the ambit of § 1101(a)(43)(N), which is explicitly confined to convictions under 8 U.S.C. § 1324(a), and so is not an aggravated felony under that theory for immigration purposes).

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

[191] See N. Tooby, Aggravated Felonies § 5.32 (2003).