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.

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

United States v. Moreno-Hernandez, 397 F.3d 1248 (9th Cir. 2005) (post-Booker decision distinguishes Corona-Sanchez, and treats recidivist enhancements as being different than non-recidivist enhancements).

U.S. v. Sanchez-Villalobos, __ F.3d __, 2005 WL 1332244 (5th Cir. June 7, 2005) (misdemeanor simple possession, under Colorado Colo.Rev.Stat. 18-1.3- 501(1), punishable by up to 18 months imprisonment is an aggravated felony for sentencing purposes, as it is punishable by imprisonment for more than one year).

The ordinary meaning of "aggravated felony" does not include misdemeanor convictions. 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.

In Wisconsin, a felony is an offense that is punishable by imprisonment in state prison for one year or more. Wis. Stat. 393.60 ("Felony and misdemeanor defined.  A crime punishable by imprisonment in the Wisconsin state prisons is a felony.  Every other crime is a misdemeanor."); Wis. Stat. 973.01(2)(b) (confinement in prison cannot be less than one year).

Hernandez-Alvarez v. Gonzales, ___ F.3d ___, 2005 WL 3534204 (7th Cir. Dec. 28, 2005) (Illinois conviction of indecent solicitation of a child, in violation of 720 ILCS 5/11-6(a)(2000), constituted sexual abuse of a minor aggravated felony, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), for deportation purposes even though the person solicited was an adult police officer rather than a minor), following Gattem v. Gonzales, 412 F.3d 758 (7th Cir. 2005).

California Penal Code 2800.2, eluding an officer, should not be considered an obstruction of justice offense within the meaning of INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S). See Matter of Espinoza, 22 I. & N. Dec.

There is some risk that since the simulated controlled substances is sold "as" a controlled substance, a court would rule the state law prohibiting it would be a law "related to" a controlled substance.  Such a violation should not be an aggravated felony, however, since the federal counterfeit controlled substances law does not cover sale of flour pretending it is a controlled substance.  See 21 U.S.C. 802(7) ("counterfeit controlled substance" must be a "controlled substance" pretending to be manufactured by someone other than the actual manufacturer), 841(a)(2) (sale, etc.