(D)  Other Grounds of Deportation.  Alien smuggling conduct may trigger deportability or inadmissibility even if there is no conviction.  A person who has aided, assisted or encouraged others to enter the U.S. illegally is inadmissible and deportable under the “alien smuggling” conduct-based deportation ground, regardless of whether s/he has been convicted of the federal criminal offense.  See § 7.190, infra.[297]  Therefore, criminal counsel should aid the client to avoid making any admission of this conduct that might come to the attention of the immigration authorities, even if the client successfully avoids a conviction of this criminal offense.  Some waivers of this non-conviction ground of removal are available.[298]  Alien harboring and transporting are not included in these conduct-based removal grounds. 

 

            A conviction of the criminal offense of alien smuggling has been held not to constitute a crime involving moral turpitude.[299]

 

            The statute defining alien smuggling was amended[300] to increase the penalty to up to 10 years for persons who bring noncitizens into the United States, in violation of that section, and (1) the offense was part of an ongoing enterprise, (2) the noncitizens were transported in groups of 10 or more, and (3) the noncitizens were transported in a manner that endangered their lives, or the noncitizens themselves presented a life-threatening health risk to the people in the United States.[301]

            It is important to examine the checklist of general aggravated felony safe havens to determine whether each offense or conviction being examined falls within one or more of the safe havens listed there.  See § 7.29, supra.

 

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

[298] See K. BRADY, California Criminal Law And Immigration § 6.12 (2004).

[299] See Matter of Tiwari, 19 I. & N. Dec. 875 (BIA 1989) (alien smuggling is not a crime involving moral turpitude), quoting United States v. Merkt, 794 F.2d 950 (5th Cir. 1986); United States v. Elder, 601 F.Supp. 1574 (S.D. Tx. 1985).

[300] Intelligence Reform and Terrorism Prevention Act of 2004 (“IRTPA”), § 5401, amending INA § 274, 8 U.S.C. § 1324

[301] Intelligence Reform and Terrorism Prevention Act of 2004 (“IRTPA”), § 5401, Pub. L. No. 108-458; S. 2845, 108th Congress (signed Dec. 17, 2004).

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