(B)  Significance of Parenthetical.  Under a controversial 1999 BIA ruling, conviction at any time of transporting or harboring an alien constitutes an aggravated felony.[288]  The alien smuggling definition of aggravated felony includes:

 

An offense described in paragraph (1)(a) or (2) of section 274(a) (relating to alien smuggling), except in the case of 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.[289]

 

            The sections referred to [290] describe in various clauses several criminal offenses relating to alien smuggling, transporting and harboring.  Advocates argued that the parenthetical (“referring to alien smuggling”) was meant to limit the aggravated felony definition to alien smuggling, and to exclude transportation and harboring from the definition.

 

            In a 1999 en banc decision, the BIA disagreed, holding that the parenthetical “relating to alien smuggling” is “merely descriptive” rather than limiting.  Thus it found that conviction of transporting a noncitizen within the United States in furtherance of illegal status,[291] constituted an aggravated felony.[292]

 

            Board Member Rosenberg lambasted this decision in a persuasive dissent, reviewing the vernacular, common law, statutory and case law definitions of the terms “smuggling” and “transporting,” as well as principles of statutory construction and the rule of lenity.  These issues should be raised on appeal to federal courts.[293]  While the Fifth Circuit supports the BIA’s interpretation, at least one other federal court disagrees.[294] 

            The decision calls into question many of the other parentheticals in the definition of aggravated felony and elsewhere in the Act.  This issue might be raised in these other contexts on appeal to federal courts as well as to the BIA.  In at least one unpublished decision, the BIA distinguished “(relating to alien smuggling)” from another “relating to” parenthetical in a deportation ground, holding that the second phrase did limit the definition of the deportable offense.[295]  For further discussion of parenthetical references and the definition of aggravated felony, see “Parentheticals,” § 4.24 supra, and K. Brady, California Criminal Law and Immigration § 6.5 (Part C) (2004).

[288] Matter of Ruiz-Romero, 22 I. & N. Dec. 486 (BIA 1999).

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

[290] INA § 274(a)(1)(a) and (2), 8 U.S.C. § 1324(a)(1)(a) and (2).

[291] INA § 274(a)(1)(a)(ii), 8 U.S.C. § 1324(a)(1)(a)(ii).

[292] INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N); Matter of Ruiz-Romero, supra, 22 I. & N. Dec. 486, at 509 (BIA 1999).

[293] For a sample brief on the “relating to alien smuggling” issue (written before Ruiz-Romero was decided), see the brief bank of the National Immigration Project of the National Lawyers Guild, on line in the National Immigration Project section at http:\\www.nationalimmigrationproject.org, or contact the Project at (617) 227-9727.

[294] Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. 2000) (no reason to differ from the rule in criminal cases); United States v. Monjaras-Castaneda, 190 F.3d 326, 331 (5th Cir. 1999) (same issue in sentencing context).  But see Gavilan-Cuate v Yetter, 94 F.Supp.2d 1039 (D.C. Minn. 2000) (district court upheld magistrate’s finding that conviction of conspiracy to transport and harbor did not come within the aggravated felony definition of “alien smuggling” set out at INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N)).

[295] In an unpublished opinion, the Board found that the parenthetical phrase “relating to fraud and misuse of visas, permits and other entry documents” in the deportation ground INA § 237(a)(3)(a)(iii), 8 U.S.C. § 1227(a)(3)(a)(iii) (based on conviction of certain document fraud offenses) was limiting and was not merely descriptive.  Matter of VG, A92 593 325 (BIA 3/22/99).  It distinguished Matter of Ruiz-Romero by stating that (a) because this was a deportation ground and not an aggravated felony, it was less possible to assume that the language was merely descriptive, and (b) the actual parenthetical language had its origins in the heading of the offense prior to a 1986 amendment, yet the parenthetical language in the deportation ground was not changed when the heading of the offense was changed in 1986.  The BIA cannot presume that this was an oversight.  For other arguments on the aggravated felony “(relating to)” issue, see in particular the extensive dissent in Ruiz-Romero by Board Member Rosenberg.

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