(A)  Safe Havens.  This aggravated felony category has a statutory exception, which constitutes a safe haven, for “a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child or parent (and no other individual) to violate a provision of this Act.”[282]

 

            An alternative plea, in place of smuggling in federal court, might be aiding and abetting someone else’s illegal entry into the United States.[283]  This offense contains the factual elements of smuggling, but because it is not a plea to the offense [284] listed in the aggravated felony definition,[285] it is not an aggravated felony.  It may, however, trigger deportation under the conduct-based ground of deportation discussed below.  See § 7.190, infra.  This disposition would also offer the possible “aiding and abetting” safe haven.  See § 7.9, supra.

 

            A person is not deportable under the aggravated felony ground if the conviction occurred before November 18, 1988[286] or before lawful admission.  A person is not deportable for alien smuggling if s/he committed the offense more than five years after entry (e.g., s/he encouraged another person to enter illegally without leaving the U.S. him- or herself).[287]  A person who meets both of those requirements should not be held deportable for the conviction.

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

[283] 18 U.S.C. § 2; INA § 275, 8 U.S.C. § 1325.

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

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

[286] See discussion in IRLC § 9.6 (Part B), including discussion of Matter of Lettman, 22 I. & N. Dec. 365 (BIA 1998) (new analysis that deportation ground applies regardless of date of conviction in proceedings begun on or after March 1, 1991), reversed by Lettman v. Reno, 168 F.3d 463 (11th Cir. 1999).  Criminal practitioners should note that in the strange administrative law world of immigration, a federal court can reverse a case, but the BIA opinion below can remain in effect as a rule in other circuits until the BIA disavows it.  The BIA must follow the federal court’s law in its own circuit.

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

Ninth Circuit

IMMIGRATION OFFENSES - ALIEN SMUGGLING - CONTINUING OFFENSE TERMINATES WHEN SMUGGLER DROPS THE NONCITIZEN OFF AT A LOCATION WITHIN THE UNITED STATES
United States v. Lopez, 484 F.3d 1186 (9th Cir. May 7, 2007) (bringing a noncitizen to the United States, in violation of 8 U.S.C. 1324(a)(2), is a continuing offense that terminates when the initial transporter who brings the alien to the United States drops off the person at a location in this country), overruling United States v. Ramirez-Martinez, 273 F.3d 903, and United States v. Angwin, 271 F.3d 786.

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