United States v. Taylor, 322 F.,3d 1209 (9th Cir.

The ordinary meaning of "alien smuggling" does not include harboring of noncitizens within the United States, but requires a border be crossed. See Leocal v. Ashcroft, 543 U.S. ___, 160 L. Ed. 2d 271, 125 S. Ct. 377 (2004)(Supreme Court uses "ordinary meaning" approach to conclude that accidental injury does not fall within ordinary meaning of "crime of violence" aggravated felony definition: "In construing both parts of 16, we cannot forget that we ultimately are determining the meaning of the term crime of violence.

United States v. Martinez-Candejas, 347 F.3d 853 (10 Cir. October 21, 2003) (conspiracy to transport and harbor illegal aliens is an alien smuggling offense for profit for purposes of United States Sentencing Guidelines)

United States v. Martinez-Candejas, 347 F.3d 853 (10th Cir. October 21, 2003) (alien smuggling includes transportation and harboring for purposes of 16-level enhancement of illegal reentry sentence under U.S.S.G. 2L1.2(b)(1)(A)(vii)(2002) based on prior aggravated felony conviction).

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

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

Tapucu v. Gonzales, __ F.3d __ (6th Cir. March 9, 2005) (driving an undocumented noncitizen to the United States boarder, and presenting him to the immigration authorities upon inspection, not knowing that the noncitizen is not entitle to enter the United States, at least on a temporary basis, does not constitute "alien smuggling").

Gelman v. Ashcroft, 372 F.3d 495 (2d Cir. June 17, 2004) (aggravated felony conviction occurring prior to statute creating ground of deportation could be used to deport).

INS v. St. Cyr, 533 U.S. 289, 323-24 (2001) (retroactive changes to the immigration consequences of a plea bargain deprives the defendant of "fair notice"); see BMW of North America v. Gore, 517 U.S. 559, 574-75 (1996) (lack of "fair notice" of the scope of civil penalties violates Due Process); Reno v. American-Arab Anti-Discrimination Com., 525 U.S. 471,497-98 (1999) ("AADC") (deportation is a "drastic penalty").

Harper v. Virginia Dept. Taxation, 509 U.S. 86 (1993) mandates that a new legal interpretation may not be applied retroactively where such application would create a Due Process violation. See Reynoldsville Casket v. Hyde, 514 U.S. 749,758-59 (1995) (as courts apply "retroactively" a new rule of law to pending cases, they will find instances where that new rule, for well-established legal reasons, does not determine the outcome of the case); Glazner v. Glazner, 347 F.3d 1212,1216 (11th Cir.