# RUIZ-ROMERO

> Board of Immigration Appeals · July 1, 1999 · 22 I. & N. Dec. 486

URL: https://www.frixlaw.com/law-library/cases/6074578

## Case

- **Court:** Board of Immigration Appeals
- **Decided:** July 1, 1999
- **Citations:** 22 I. & N. Dec. 486
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 13 later opinions in the Frix Law Library

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## Opinion text

Interim Decision #3376

In re Filiberto RUIZ-ROMERO, Respondent

File A92 236 462 - El Paso

Decided February 1, 1999

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

An alien who is convicted of transporting an illegal alien within the United States in vio-
lation of section 274(a)(1)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. §
1324(a)(1)(A)(ii) (1994), was convicted of an aggravated felony as defined in section
101(a)(43)(N) of the Act, 8 U.S.C. § 1101(a)(43)(N) (Supp. II 1996), and is therefore
deportable under section 241(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), as
an alien convicted of an aggravated felony. Matter of I-M-, 7 I&N Dec. 389 (BIA 1957), dis-
tinguished.

Albert Armendariz, Jr., Esquire, El Paso, Texas, for the respondent

Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; HEILMAN,
HOLMES, HURWITZ, FILPPU, COLE, MATHON, GUENDELSBERGER,
JONES, GRANT, and SCIALABBA, Board Members. Concurring Opinion: VIL-
LAGELIU, Board Member. Dissenting Opinion: ROSENBERG, Board Member,
joined by VACCA, Board Member.

GRANT, Board Member:

In a decision dated August 14, 1997, the Immigration Judge found the
respondent deportable as charged, pretermitted his request for relief from
deportation, and ordered him deported from the United States to Mexico.
The respondent timely appealed. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL BACKGROUND

The respondent is a native and citizen of Mexico who originally entered
the United States without inspection on or about December 1, 1984. On
November 30, 1987, the respondent was granted temporary resident status
through the legalization program. His status was subsequently adjusted to
that of a lawful permanent resident on December 1, 1990.
On December 23, 1996, the Immigration and Naturalization Service

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issued an Order to Show Cause and Notice of Hearing (Form I-221), alleg-
ing that the respondent had been convicted on July 31, 1996, in the United
States District Court for the District of New Mexico, of the offense of trans-
porting an illegal alien in violation of section 274(a)(1)(A)(ii) of the
Immigration and Nationality Act, 8 U.S.C. § 1324(a)(1)(A)(ii) (1994).
Based on this conviction, the Service alleged that the respondent was
deportable pursuant to section 241(a)(2)(A)(iii) of the Act, 8 U.S.C. §
1251(a)(2)(A)(iii) (1994), as an alien convicted of an aggravated felony.
The Immigration Judge denied the respondent’s motion to terminate pro-
ceedings and found him deportable as charged. She further pretermitted his
request for a waiver of inadmissibility under section 212(c) of the Act, 8
U.S.C. § 1182(c) (1994), as amended by Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277
(“AEDPA”), and ordered him deported from the United States.

II. APPELLATE ARGUMENTS

On appeal, the respondent contends that, as a matter of law, a convic-
tion for transporting an illegal alien in violation of section 274(a)(1)(A)(ii)
of the Act does not support a charge of deportability under section
241(a)(2)(A)(iii). Specifically, he contends that his crime does not relate to
alien smuggling, and thus his conviction is not an aggravated felony as
defined in section 101(a)(43)(N) of the Act, 8 U.S.C. § 1101(a)(43)(N)
(Supp. II 1996). He therefore asserts that the Immigration Judge erred in
denying his motion to terminate proceedings. In the alternative, he argues
that the evidence submitted by the Service does not support a finding of his
deportability.
In response, the Service concurs with the Immigration Judge’s findings
and urges this Board to adopt her decision.

III. MOTION TO TERMINATE DEPORTATION PROCEEDINGS

A. Respondent’s Conviction

The Service alleged that the respondent was convicted under section
274(a)(1)(A)(ii) of the Act. At the time of the respondent’s conviction, sec-
tion 274(a)of the Act provided, in pertinent part, as follows:

(1)(A) Any person who—
(i) knowing that a person is an alien, brings to or attempts to bring to the United
States in any manner whatsoever such person at a place other than a designated port

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of entry or place other than as designated by the Commissioner, regardless of whether
such alien has received prior official authorization to come to, enter, or reside in the
United States and regardless of any future official action which may be taken with
respect to such alien;

(ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or
remains in the United States in violation of law, transports, or moves or attempts to
transport or move such alien within the United States by means of transportation or
otherwise, in furtherance of such violation of law;

(iii) knowing or in reckless disregard of the fact that an alien has come to, entered,
or remains in the United States in violation of law, conceals, harbors, or shields from
detection, or attempts to conceal, harbor, or shield from detection, such alien in any
place, including any building or any means of transportation;

(iv) encourages or induces an alien to come to, enter, or reside in the United States,
knowing or in reckless disregard of the fact that such coming to, entry, or residence is
or will be in violation of law,

shall be punished as provided in subparagraph (B).
....
(2) Any person who, knowing or in reckless disregard of the fact that an alien has not
received prior official authorization to come to, enter, or reside in the United States,
brings to or attempts to bring to the United States in any manner whatsoever, such
alien, regardless of any official action which may later be taken with respect to such
alien shall, for each transaction constituting a violation of this paragraph, regardless of
the number of aliens involved—
(A) be fined in accordance with title 18, United States Code, or imprisoned not more
than one year, or both . . . .

Sections 274(a)(1)(A), (2)(A) of the Act.

B. Deportability under Section 241(a)(2)(A)(iii) of the Act

The respondent was charged with deportability as an alien convicted of
an aggravated felony pursuant to section 241(a)(2)(A)(iii) of the Act. The
definition of an aggravated felony is set forth at section 101(a)(43) of the
Act. That section, as it applies to the respondent, defines an aggravated
felony as follows:
[A]n 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.

Section 101(a)(43)(N) of the Act (emphasis added).
The respondent’s conviction for violation of section 274(a)(1)(A)(ii) of

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the Act is clearly part of section 274(a)(1)(A). The respondent argues that
by including the parenthetical “relating to alien smuggling” in section
101(a)(43)(N), Congress intended to exempt certain criminal offenses
described in sections 274(a)(1)(A) or (2) from the aggravated felony defi-
nition. Specifically, he contends that a conviction under section
274(a)(1)(A)(ii) does not “relat[e] to alien smuggling” because, in contrast
to a conviction under sections 274(a)(1)(A)(i) or (iv), it does not relate to
the entry of an alien who crosses the border of the United States. The
threshold question, then, is what effect, if any, is to be given to the “relat-
ing to alien smuggling” parenthetical in section 101(a)(43)(N).
Our starting point of analysis is to examine the plain language of sec-
tion 101(a)(43)(N) of the Act. INS v. Cardoza-Fonseca, 480 U.S. 421, 432
n.12 (1987) (noting that there is a “strong presumption that Congress
expresses its intent through the language it chooses”). We disagree with the
respondent’s view that the parenthetical, “relating to alien smuggling,” in
section 101(a)(43)(N) is language limiting the type of convictions under
sections 274(a)(1)(A) and (2) that may be regarded as an aggravated felony.
Rather, we find that the parenthetical is merely descriptive. A reading of
section 101(a)(43)(N) in its entirety supports this conclusion. Section
101(a)(43) references a number of statutes that are outside the Immigration
and Nationality Act. These include provisions contained in titles 18, 26, and
50 of the United States Code. Instead of requiring the reader to examine the
referenced title and section of the code, subparagraphs (D), (E), (H), (I), (J),
(K), (L), (M), and (P) of section 101(a)(43) include parentheticals which
provide a shorthand description of the referenced criminal offenses.
Likewise, the parenthetical in subparagraph (N) advises that section
274 of the Act contains the criminal prohibitions relating to alien smug-
gling. Even though the phrase “smuggling” does not appear in section 274,
this provision is designed to combat the phenomenon of smuggling by crim-
inalizing the broad scope of activities which enable aliens to enter or to
remain in the United States illegally. See United States v. Sanchez-Vargas,
878 F.2d 1163 (9th Cir. 1989) (examining legislative history of section
274(a) and concluding that by broadening the scope of proscribed conduct
in section 274(a) over the last century, Congress expressed a continuing
intent to strengthen federal anti-smuggling laws). We thus find that the par-
enthetical found in subparagraph (N) provides the reader accurate guidance
as to the nature and extent of the offenses referenced. This parenthetical no
more limits the range of convictions under sections 274(a)(1)(A) and (2) to
be considered an aggravated felony than the phrase “relating to child
pornography” in section 101(a)(43)(I) limits the scope of applicable con-
victions under 18 U.S.C. §§ 2251, 2251A or 2252, or the phrase “relating
to gambling offenses” in section 101(a)(43)(J) limits the scope of applica-
ble convictions under 18 U.S.C. § 1955. In the case of subparagraph (I), for
example, the referenced criminal provisions, none of which include the

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Interim Decision #3376

term “child pornography,” nevertheless cover the broad scope of activities
relating to the production, distribution, receipt, and facilitation of sexually
explicit materials involving minors. The parenthetical phrase does not limit
the range of such offenses that may be regarded as an aggravated felony; it
simply provides a generic point of reference.
We also decline to accept the respondent’s argument that the scope of
offenses described in sections 274(a)(1)(A) or (2) of the Act, which
Congress has plainly designated as aggravated felonies, is in any way lim-
ited by the scope of activities which are considered to support the grounds
for exclusion or deportation under sections 212(a)(6)(E)(i) and 241(a)(1)(E)(i)
of the Act, 8 U.S.C. §§ 1182(a)(6)(E)(i) and 1251(a)(1)(E)(i) (1994).1 Had
Congress intended to so limit the scope of section 101(a)(43)(N), it clearly
could have cross-referenced the applicable provisions in sections 212 and
241. In addition, the respondent misapprehends the fundamental distinc-
tions between the grounds for exclusion and deportation, which do not
require a criminal conviction, and the provisions of sections 274(a)(1)(A)
and (2), which are among the few provisions in the Act that set forth the ele-
ments of a prosecutable criminal offense. See also sections 274A(f), 275,
276, 277, 278 of the Act, 8 U.S.C. §§ 1324a(f), 1325, 1326, 1327, 1328
(1994 & Supp. II 1996). The use of nonsubstantive headings such as “smug-
glers” and “smuggling” in sections 212(a)(6)(E)(i) and 241(a)(1)(E)(i) does
not signify that the substantive provisions that follow describe the full
extent of those activities that may be regarded as “alien smuggling” or
“related to alien smuggling.” Rather, these substantive provisions describe
the smuggling activities that will suffice, even in the absence of a criminal
conviction, to exclude or deport an alien from the United States.
An examination of the procedural history of section 101(a)(43)(N) of
the Act also supports the proposition that Congress intended criminal aliens
convicted under the provisions of sections 274(a)(1)(A) and (2) of the Act
to be subject to deportation under section 241(a)(2)(A)(iii). Initially, we
note that section 101(a)(43)(N) was introduced to the definition of aggra-
vated felony by section 222(a) of the Immigration and Nationality
Technical Corrections Act of 1994, Pub. L. No. 103-416, 108 Stat. 4305,
4320-22. It originally provided that “an offense described in section
274(a)(1) of title 18, United States Code (relating to alien smuggling) for

1
Section 212(a)(6)(E)(i) of the Act provides that “[a]ny alien who at any time knowing-
ly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to
enter the United States in violation of law is excludable.”
Section 241(a)(1)(E)(i) of the Act provides that “[a]ny alien who (prior to the date of
entry, at the time of entry, or within 5 years of the date of any entry) knowingly has encour-
aged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United
States in violation of law is deportable.”

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the purpose of commercial advantage” was an aggravated felony. However,
since there is no section 274 in title 18, it appears that Congress intended
section 274 of title 8, the United States Code, which contains the
Immigration and Nationality Act.
Nevertheless, section 440(e) of the AEDPA, 110 Stat. at 1277-78,
expressly added alien smuggling activities under section 274(a) to the def-
inition of an aggravated felony. In this regard, the AEDPA eliminated the
reference to title 18 and the phrase “for the purpose of commercial advan-
tage,” and it added a requirement of a term of imprisonment.2 See AEDPA
§ 440(e). Shortly thereafter, however, Congress again amended section
101(a)(43)(N) by removing the term of imprisonment requirement, and
including an affirmative defense for those aliens who committed the offense
for the purpose of assisting, abetting, or aiding their spouse, child, or par-
ent to violate a provision of the Act. See Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208,
§ 321(a)(8), 110 Stat. 3009-546, 3009-628 (“IIRIRA”).
Thus, since its introduction to the aggravated felony definition, section
101(a)(43)(N) has included all the actions which will incur criminal penal-
ties under sections 274(a)(1)(A) and (2) of the Act, as amended. The
removal of the “for commercial advantage” requirement and a term of
imprisonment reflects congressional intent to expand the class of offenders
subject to penalty under the immigration laws. Yet, Congress continued to
provide a waiver for first offense convictions under sections 274(a)(1)(A) or
(2) where the offense involved specific family members.
Further, we find unpersuasive the respondent’s reliance on our holding
in Matter of I-M-, 7 I&N Dec. 389 (BIA 1957), to support the argument that
his conviction does not establish his deportability. In that case, we found
that a conviction for transporting an illegal alien was not a deportable
offense under former section 241(a)(13) of the Act, 8 U.S.C. § 1251(a)(13)
(1952).3 In reaching our holding, we concluded that it was the intention of
Congress to make transportation of an alien a criminal offense, but not a
deportable offense. Id. at 391. However, this finding was rendered prior to
the introduction of the aggravated felony definition and ground of deporta-
bility. Since a criminal offense described in sections 274(a)(1)(A) and (2)

2
After enactment of the AEDPA, section 101(a)(43)(N) of the Act defined an aggravat-
ed felony as “an offense described in paragraph (1)(A) or (2) of section 274(a) (relating to
alien smuggling) for which the term of imprisonment imposed (regardless of any suspension
of imprisonment) is at least 5 years.”
3
Former section 241(a)(13) of the Act provided that an alien shall be deported if “prior
to, or at the time of any entry, or at any time within five years after any entry, shall have,
knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to
enter or to try to enter the United States in violation of law.”

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has been explicitly designated as an aggravated felony, and hence as a
deportable offense, we find that our holding in Matter of I-M-, supra, does
not support the respondent’s argument that a conviction for transporting an
illegal alien in violation of section 274(a)(1)(A)(ii) is not a deportable
offense under section 241(a)(2)(A)(iii) of the Act.
Federal case law finding that the transportation or harboring of illegal
entrants does not provide grounds for exclusion or deportation under sec-
tions 212(a)(6)(E)(i) or 241(a)(1)(E)(i) is also not dispositive of the issue of
deportability under section 241(a)(2)(A)(iii) of the Act. See Rodriguez-
Gutierrez v. INS, 59 F.3d 504, 509 n.3 (5th Cir. 1995) (holding that a con-
viction for transporting illegal aliens, rather than for aiding and abetting an
entry, does not support a finding of excludability under section
212(a)(6)(E)); cf. Lopez-Blanco v. INS, 302 F.2d 553 (7th Cir. 1962) (hold-
ing that transportation of an illegal alien into the United States, as opposed
to within the United States, supports a finding of deportability under former
section 241(a)(13) of the Act). Again, these cases did not involve aliens who
were charged with deportability as an alien convicted of an aggravated
felony.
Accordingly, we find that a conviction for transporting an illegal alien
in violation of section 274(a)(1)(A)(ii) of the Act is an aggravated felony, as
defined in section 101(a)(43)(N) of the Act, and, therefore, it supports a
finding of deportability under section 241(a)(2)(A)(iii) of the Act. We thus
find that the Immigration Judge properly denied the respondent’s motion to
terminate.

IV. DEPORTABILITY

In deportation proceedings the Service bears the burden to establish
deportability by evidence which is clear, unequivocal, and convincing. See
Woodby v. INS, 385 U.S. 276 (1966); 8 C.F.R. § 240.46(a) (1998). In find-
ing that the Service had satisfied its burden of establishing deportability, the
Immigration Judge considered the judgment and indictment. Both of these
documents are part of the record of conviction and were properly relied
upon by the Immigration Judge. Matter of Rodriguez-Cortes, 20 I&N Dec.
587 (BIA 1992); 8 C.F.R. § 3.41 (1998). Thus, we find no merit to the
respondent’s arguments on appeal that the Immigration Judge erred in
admitting these documents over his objections.

V. SUMMARY

In sum, we find that a conviction for transporting an illegal alien in vio-
lation of section 274(a)(1)(A)(ii) of the Act is an aggravated felony, as

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defined in section 101(a)(43)(N), and therefore supports a finding of
deportability under section 241(a)(2)(A)(iii) of the Act. The motion to ter-
minate deportation proceedings was properly denied by the Immigration
Judge. Moreover, we find that the record of conviction submitted by the
Service establishes the respondent’s deportability by clear, unequivocal,
and convincing evidence. Finally, since there is no indication in the record
that the respondent is statutorily eligible for any form of relief from depor-
tation, we affirm the Immigration Judge’s order of deportation to Mexico.
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
Board Member Anthony C. Moscato did not participate in the decision
in this case.

CONCURRING OPINION: Gustavo D. Villageliu, Board Member

I respectfully concur.
I concur in the result in this case but disagree with its reasoning. The
respondent may be deportable as charged as an aggravated felon. However,
I respectfully disagree with the majority’s reasoning that the words, “relat-
ing to alien smuggling,” in section 101(a)(43)(N) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(N) (Supp. II 1996), are merely
descriptive and perform no limiting function. The words “relating to alien
smuggling” imply a nexus to aliens being smuggled into the United States
which narrows the class of aliens described therein. This implication is rein-
forced by the language of section 274(a)(2)(B) of the Act, 8 U.S.C. §
1324(a)(2)(B) (1994 & Supp. II 1996), and the legislative history of its
amendment by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.
3009-546 (enacted Sept. 30, 1996) (“IIRIRA”), as discussed below.
The respondent was convicted in the United States District Court for
the District of New Mexico on August 12, 1996, of violating section
274(a)(1)(A)(ii) of the Act, 8 U.S.C. § 1324(a)(1)(A)(ii) (1994), for know-
ingly transporting an alien illegally here in furtherance of the illegal pres-
ence.1 I therefore do not disagree with the majority that the respondent may
be deportable as an alien convicted of an aggravated felony pursuant to sec-

1
The majority’s opinion disregards this important limiting language in the text of section
274(a)(1)(A)(ii), as in effect prior to April 1, 1997, the effective date of the amendments pre-
scribed by the IIRIRA. For a more thorough understanding of section 274(a), both before and
after its amendments by the IIRIRA, and how the two versions relate to the requisite nexus
to an actual smuggling of aliens, it is necessary to examine both the language and structure
of the two versions of that section.

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tion 101(a)(43)(N) of the Act, as amended by section 321(a)(8) of the IIRI-
RA, 110 Stat. 3009-628, which defines an aggravated felony as an offense
described in section 274(a)(1)(A) or (2) (relating to alien smuggling), with
a limited exception not pertinent here (first offenders smuggling their
spouse, child, or parent.) I also agree with the majority that deportability
based on section 101(a)(43)(N) encompasses “the broad scope of activities
which enable aliens to enter or to remain in the United States illegally.”
Matter of Ruiz-Romero, 21 I&N Dec. 3376, at 5 (BIA 1999). This includes
transporting the smuggled aliens after they have entered, knowing their ille-
gal status, and in furtherance of their illegal presence.
However, I disagree with the majority’s reasoning that, in dictum, sug-
gests that any alien convicted of violating section 274(a) of the Act would
similarly be deportable as an aggravated felon, even if the conviction had no
nexus to an actual alien smuggling. The majority’s opinion does not address
the fact that one of the elements required for a conviction under section
274(a)(i)(A)(ii), both before and after its amendment by the IIRIRA, is that
the transportation be “in furtherance of such violation of law,” namely, the
illegal entry.
The four pre-IIRIRA parts of section 274(a)(1)(A) of the Act cited by
the majority in its opinion clearly reflect a dichotomy based on whether
there is an actual nexus to alien smuggling. Section 274(a)(1)(A)(ii), under
which the respondent in this case was convicted, required for a conviction
a “knowing or . . . reckless disregard of the fact that an alien has come to,
entered, or remains in the United States in violation of law” and also
required that the defendant’s actions be “in furtherance of such violation of
law.” Similarly, section 274(a)(i)(A)(iii), 8 U.S.C. § 1324(a)(1)(A)(iii)
(Supp. II 1996), speaks of concealing, harboring, and shielding from deten-
tion such aliens. Finally, section 274(a)(1)(A)(i) specifically addressed
those who brought such an alien to “a place other than a designated port of
entry.” This latter violation incurs the most substantial penalty, prescribed
under section 274(a)(1)(B)(i), of a fine and imprisonment for no more than
10 years. In contrast, section 274(a)(1)(A)(iv) only addresses aliens who
induce or encourage aliens who enter the United States illegally. Penalties
for violating sections 274(a)(1)(A)(ii), (iii), and (iv) are limited to a fine and
imprisonment for no more than 5 years by section 274(a)(1)(B)(ii), unless
the specified circumstances listed under sections 274(a)(1)(B) (iii) or (iv)
(death, jeopardy to life, or serious bodily injury) are present.
Pursuant to the IIRIRA, the statute was amended to clarify it and to
refine the penalties in ways consistent with the dichotomy based on a nexus
to actual alien smuggling. See IIRIRA § 203, 110 Stat. at 3009-565. As
amended, section 274(a)(2) has two parts and an introductory general pro-
vision. The general provision states that “[a]ny person who, knowing or in
reckless disregard of the fact that an alien has not received prior official
authorization to come to, enter, or reside in the United States, brings to or

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attempts to bring to the United States in any manner whatsoever, such alien,
regardless of any official action which may later be taken with respect to
such an alien” commits an offense. Section 274(a)(2)(A) prescribes a fine
in accordance with title 18 of the United States Code and/or imprisonment
for not more than a year for violation of that general provision. However,
section 274(a)(2)(B) provides for greater punishment for activities in viola-
tion of section 274(a)(2) with a nexus to alien smuggling. It prescribes a 3-
to 15-year imprisonment term, depending on the circumstances, for persons
convicted of a violation of section 274(a)(2) where the alien is brought to
the United States to commit a felony, the offense is done for commercial
advantage or gain, or the alien is not presented to an appropriate immigra-
tion officer at a designated port of entry.
Consequently, the majority’s reasoning that the words in section
101(a)(43)(N) “relating to alien smuggling” are merely descriptive, and not
limiting, is erroneous dictum as to those section 274(a)(2) convictions that
do not involve the aggravating circumstances discussed in section
274(a)(2)(B). Under the majority’s reasoning, any person convicted and
fined under section 274(a)(2)(A) who brings to our border an unauthorized
asylum-seeker without attempting to smuggle such alien may be deemed an
aggravated felon even if such alien is subsequently granted asylum and
there is no nexus to smuggling. Such a person, even if convicted under sec-
tion 274(a)(2), is not a smuggler; and the asylum-seeker who openly pres-
ents himself at the border requesting admission as a refugee is not a smug-
glee.
The language of section 101(a)(43)(N) “relating to alien smuggling”
is sufficiently broad to cover all activities which assist the smuggling
operation, as the majority notes. However, the term “smuggling” neces-
sarily implies secrecy and must somehow relate to an illicit entry by the
smuggled alien.2 A sufficient nexus to a surreptitious illegal entry or
attempted entry must be present for deportability as an aggravated felon.
The legislative history of section 101(a)(43)(N) is consistent with a defi-
nition that limits deportability based on that section to activities relating
to an actual illicit and surreptitious entry into the United States. The

2
The word “smuggle” means to bring in or take out illicitly or secretly. Section 208(a)(1)
of the Act, 8 U.S.C. § 1158(a)(1) (Supp. II 1996), specifically states:
(1) IN GENERAL.—Any alien who is physically present in the United States or who
arrives in the United States (whether or not at a designated port of arrival and includ-
ing an alien who is brought to the United States after having been interdicted in inter-
national or United States waters), irrespective of such alien’s status, may apply for asy-
lum in accordance with this section, or, where applicable, section 235(b).
Consequently, the Act specifically contemplates aliens who had no prior authorization to
come to the United States to be allowed to submit an application for asylum.

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statute reflects an intent to specify different penalties for alien smuggling,
inducement, harboring, and transportation prohibitions; provides penal-
ties for employers of aliens brought to the United States in violation of
section 274(a); provides further penalties for smuggling aliens with rea-
son to believe such aliens may commit crimes here; and changes the stan-
dard for calculating penalties based on the number of aliens smuggled
instead of the number of transactions involved. 142 Cong. Rec. H10,841-
02 (1996). It clearly differentiates, for purposes of penalties, on the basis
of a nexus to an actual smuggling activity.
Finally, the specific language of section 101(a)(43)(N) contains
another indication of a limiting function relating to an actual smuggling.
It provides an exception from deportability for an alien who committed
the section 274(a) violation and “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 vio-
late a provision of this Act.” (Emphasis added.) Under the majority’s rea-
soning and the principle of “expressio unius est exclusio alterius,” an alien
convicted of a section 274(a) violation who did not have the purpose of
assisting, abetting, or aiding a violation of this Act, but rather intended
only to present his spouse, child, or parent for inspection in accordance
with section 208(a)(1) of the Act, 8 U.S.C. § 1158(a)(1) (Supp. II 1996),
in order to apply for asylum, would not benefit from this exception. See
2A N. Singer, Sutherland Statutory Construction § 47.23, at 194 (4th ed.
1985).
It would be absurd to interpret the statute so as to provide an excep-
tion from deportability to an alien who smuggles a qualifying close rela-
tive surreptitiously and deny the exception to a similarly situated alien
presenting his qualifying, but unauthorized to enter, close relative for
inspection. It is a well-settled rule of statutory interpretation that absurd
results due to unreasonable interpretations of the statute should be avoid-
ed. See Singer, supra, § 45.12, at 54-55. Consequently, I disagree with the
majority’s reasoning insofar as it implies, in dictum, that an alien who
aids a refugee to come to the United States and apply for asylum openly,
by presenting such refugee before the appropriate authorities, may be con-
sidered an aggravated felon if convicted of violating section 274(a)(2) of
the Act because the refugee had not been previously authorized to come
to the United States.

DISSENTING OPINION: Lory Diana Rosenberg, Board Member, in which
Fred W. Vacca, Board Member, joined

I respectfully dissent.
By its decision, the majority finds, in essence, that transporting or
facilitating the movement of an “alien” who is within the borders of the

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United States from one place to another necessarily constitutes smug-
gling. I disagree.1
It goes without saying that we are addressing a conviction that is, first,
a conviction, for which criminal penalties are imposed, and second, a con-
viction in relation to which immigration consequences attach. However,
excessive as the list of convictions designated as aggravated felonies may
be, not every conviction is an aggravated felony. Yet.
The majority focuses on the parenthetical phrase, “related to alien
smuggling,” in section 101(a)(43)(N) of the Immigration and Nationality
Act, 8 U.S.C. § 1101(a)(43)(N) (Supp. II 1996), as though it was a license
to treat every offense under sections 274(a)(1)(A) or (2) of the Act, 8 U.S.C.
§§ 1324(a)(1)(A) or (2) (1994), as an offense “relating to alien smuggling,”
and thereby to characterize every offense under those subsections of section
274(a) as an aggravated felony. But if that were the case, the parenthetical
language would be surplusage, because section 101(a)(43)(N) very clearly
refers to offenses “described in paragraph (1)(A) or (2) of section 274(a).”
The language of section 274(a) is plain; it articulates clearly a list of offens-
es and needs no parenthetical modification to “provide[] the reader accurate
guidance as to the nature and extent of the offenses referenced.” Matter of
Ruiz-Romero, 21 I&N Dec. 486, at 489 (BIA 1998).
In my opinion, the parenthetical language is not “merely descriptive.”
Id. (emphasis added). It is descriptive in a narrowing sense, focusing the
reader’s attention on a subgroup of offenses covered by section 274(a) that
Congress deemed to constitute offenses that qualified for categorization as
aggravated felony convictions. This conclusion is supported by several prin-
ciples of statutory construction that we are bound to follow, including the
rule of lenity.

I. ISSUE PRESENTED

The issue presented by this appeal is whether a conviction for trans-
porting an unadmitted or out of status alien within the United States in vio-
lation of section 274(a)(1)(A)(ii) of the Act renders the respondent
deportable under section 241(a)(2)(A)(iii) of the Act, 8 U.S.C. §
1251(a)(2)(A)(iii) (1994), as an alien convicted of an aggravated felony.
This requires us to interpret the language of section 101(a)(43)(N) of the
Act, which includes in the statutory definition of aggravated felony,

1
I also disagree with the concurring opinion of Board Member Villageliu, who I believe
has misread the record with regard to whether the respondent’s conviction had anything to do
with smuggling.

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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.

(Emphasis added.)
The real question before us is not whether the language “relating to
alien smuggling” that follows the statutory citation referring to section
274(a) of the Act is descriptive. Cf. Matter of Ruiz-Romero, supra, at 488.
The parenthetical phrase certainly is descriptive, but to say that it is descrip-
tive of offenses under section 274(a) begs the question. The question is:
What does it describe? Is it merely descriptive of every offense under sec-
tion 274(a), providing an arguably redundant categorical label for subsec-
tions listed in section 101(a)(43)(N)? Or, is it descriptive only of offenses
under section 274(a) that can be said to be “related to smuggling,” as that
term is described in common usage and elsewhere in the statute?

II. APPLICATION OF PRINCIPLES OF STATUTORY
CONSTRUCTION TO THE PHRASE “RELATING
TO ALIEN SMUGGLING”

As the administrative agency charged with interpreting and applying
the statute, we are bound by the language Congress has enacted. Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-
43 (1984). Where Congress’ intent is not plainly expressed, or subject to an
ordinary meaning, we are to determine a reasonable interpretation of the
language that effectuates Congress’ intent. Id. at 843. Application of accept-
ed principles of statutory construction to the phrase “relating to alien smug-
gling” limits the reach of section 101(a)(43)(N) to certain convictions under
sections 274(a)(1)(A) and (2) of the Act.
Sections 274(a)(1)(A) and (2) of the Act, 8 U.S.C. §§ 1324(a)(1)(A)
and (2) (Supp. II 1996), now include seven different criminal offenses for
which a violator may be penalized, each of which contains different ele-
ments. Entitled “Bringing In and Harboring Certain Aliens,” and subtitled
“Criminal Penalties,” section 274(a)(1)(A) contains six forms of conduct
for which an individual may be convicted. This conduct may be para-
phrased as: (i) knowing a person is an alien, bringing or attempting to bring
that person across the border other than at a designated port of entry; (ii)
knowing or in reckless disregard of an alien’s having come to, entered, or
remained in the United States in violation of law, transporting or moving
(or attempting to transport or move) that person within the United States in
furtherance of the alien’s violation of law; (iii) knowing or in reckless dis-

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regard of an alien’s having come to, entered, or remained in the United
States in violation of law, concealing, harboring, or shielding from detec-
tion (or attempting to conceal, harbor, or shield from detection) that person
within the United States; (iv) encouraging or inducing an alien to come to,
enter, or reside in the United States; (v)(I) engaging in conspiracy to engage
in any of the preceding acts; and (v)(II) aiding and abetting the commission
of any of the preceding acts. Section 274(a)(2) refers to a seventh type of
conduct that is subject to criminal penalties—knowing or in reckless disre-
gard of the absence of prior official authorization, bringing in an alien,
regardless of any official action that is taken later with respect to the alien.
For our purposes, the question is whether or not the respondent is
deportable as charged based on the respondent’s criminal conviction or any
other evidence he engaged in smuggling. We must determine whether the
activity for which the respondent was convicted—transporting—is a viola-
tion “relating to alien smuggling.” See section 101(a)(43)(N) of the Act.
The criminal provisions contained in sections 274(a)(1)(A) and (2) cover
bringing or attempting to bring across the border unlawfully; transporting
or moving in furtherance of the alien’s violation of law; concealing, har-
boring, or shielding a person who is unlawfully present from detection; and
encouraging or inducing to come, enter, or reside in the United States. In
my view, given the breadth of activity covered by sections 274(a)(1)(A) and
(2), the language of section 101(a)(43)(N), referring to actions “relating to
alien smuggling,” is limiting language that modifies the reference to the
subsections of section 274(a).

A. Plain Meaning of the Statutory Language

Our interpretation of the statute is governed by settled principles of
statutory construction. First, we must look to the actual language used in the
statute. It is well settled that the “‘“starting point must be the language
employed by Congress”’ and the court must ‘assume “that the legislative
purpose is expressed by the ordinary meaning of the words used.”’” INS v.
Phinpathya, 464 U.S. 183, 189 (1984) (quoting American Tobacco Co. v.
Patterson, 456 U.S. 63, 68 (1982) (quoting Reiter v. Sonotone Corp., 442
U.S. 330, 337 (1979), and Richards v. United States, 369 U.S. 1, 9 (1962)));
see also INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987).2 Second, we

2
The strong presumption that the plain language of the statute expresses congressional
intent is rebutted in “rare and exceptional circumstances” when a contrary legislative intent is
clearly expressed. Rubin v. United States, 449 U.S. 424, 430 (1981); INS v. Cardoza-Fonseca,
supra, at 432 n.12. This case does not present one of those rare circumstances. On the con-
trary, here the legislative history is in complete accord with my reading of the plain language
of section 101(a)(43)(N). See, e.g., H.R. Conf. Rep. No. 104-469(I) (1996), available in 1996
WL 168955; H.R. Conf. Rep. No. 104-828 (1996), available in 1996 WL 563320. For exam-

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must look to the language and design of the statute as a whole. K Mart
Corporation v. Cartier, Inc., 486 U.S. 281, 291 (1987); see also COIT
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S.
561 (1989); Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). Third, we must
“give effect, if possible, to every clause and word of a statute.” Inhabitants
of Montclair v. Ramsdell, 107 U.S. 147, 152 (1883); see also Kungys v.
United States, 485 U.S. 759 (1988); United States v. Menasche, 348 U.S.
528, 538-39 (1955). The United States Court of Appeals for the Fifth
Circuit, the circuit in which this case arises, has held that “we follow the
plain meaning of the statute unless it would lead to a result ‘so bizarre that
Congress “could not have intended” it’.” Johnson v. Sawyer, 120 F.3d 1307,
1319 (5th Cir. 1997) (quoting Demarest v. Manspeaker, 498 U.S. 184, 191
(1991) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571
(1982))).

1. Definition of “smuggling” and “transporting”

The phrase “related to smuggling” refers plainly to offenses within sec-
tion 274(a) that involve “smuggling.” Smuggling is defined in popular
usage as follows: “1. To import or export without paying lawful customs
charges. . . [or] 2. To bring in or take out illicitly or secretly.” Webster’s II
New Riverside University Dictionary 1099 (1994). The term “smuggle” has
a well-understood meaning at common law, signifying a bringing on shore,
or carrying from shore, of good wares and merchandise for which the duty
has not been paid or goods the importation or exportation whereof is pro-

ple, the legislative history of section 203 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-565
(“IIRIRA”), which increased the penalties under section 274(a)(1)(B)(i), makes clear that
bringing in aliens, transporting them or harboring them are separate offenses and suggests
that the term “alien smuggling” only relates to section 274(a)(1)(A)(i). It addresses an amend-
ment of section 274(a)(1) “providing that a person who engages in a conspiracy to commit or
aids and abets in the commission of offenses under section 274(a)(1)(A) shall be fined and
imprisoned for up to 10 years (alien smuggling) or up to 5 years (transportation, harboring,
inducement).” H.R. Conf. Rep. No. 104-469(I), at 608 (1996). In addition, Congress also
uses the term “alien smuggling” to differentiate a conviction for that activity from convictions
for other activity covered under section 274(a), directing the promulgation of “(e)(1) . . . sen-
tencing guidelines . . . for offenders convicted of offenses related to smuggling, transporting,
harboring or inducing aliens in violation of section 274(a)(1)(A) or (2).” H.R. Conf. Rep. No.
104-828, at 20 (1996) (emphasis added). The use of the conjunctive “or” in the legislative his-
tory further establishes that “related to smuggling” is not the same as “related to transport-
ing,” “related to harboring,” or “related to inducing aliens in violation of section 274(a)(1)(A)
or (2).” See Azure v. Morton, 514 F.2d 897, 900 (9th Cir. 1975) (finding that “use of a dis-
junctive in a statute indicates alternatives and requires that they be treated separately”).

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hibited. Williamson v. United States of America, 310 F.2d 192 (9th Cir.
1962); see also Black’s Law Dictionary 1389 (6th ed. 1990).
Although the specific term “smuggling” does not appear in section
274(a), it is used and may be defined by its usage in other sections of the
Act. See sections 212(a)(6)(E), 237(a)(1)(E) of the Act, 8 U.S.C. §§
1182(a)(6)(E), 1227(a)(1)(E) (Supp. II 1996) (entitled “Smugglers” and
“Smuggling” respectively). In articulating a ground of deportability for
smuggling, the statute provides that “[a]ny alien who (prior to the date of
entry, at the time of any entry, or within 5 years of the date of any entry) has
encouraged, induced, assisted, abetted, or aided any other alien to enter or
to try to enter the United States in violation of law is deportable.” Section
237(a)(1)(E)(i) of the Act (emphasis added).3 It is important to note that the
conduct defined in the inadmissibility and deportability grounds covers
encouraging, inducing, assisting, abetting, and aiding, and equally impor-
tant to note that the action so encouraged, induced, assisted, abetted, or
aided is entry or attempted entry to the United States.
This specific definition of “smuggling” is significant. When identical
words are used in the same statute, they mean the same thing. 2A N. Singer,
Sutherland Statutory Construction § 46.06, at 164 (4th ed. 1984); 73 Am.
Jur. 2d § 232; Boise Cascade Corporation v. United States EPA, 942 F.2d
1427, 1431 (9th Cir. 1991). It is not only appropriate, but necessary, that in
determining the meaning of “related to alien smuggling” in section 101(a)(43)(N),
we consider the word “smuggling” as used in other sections of the Act.
By contrast, the word “transport” means “[t]o convey from one place to
another.” Webster’s II New Riverside University Dictionary 1228 (1994);
see also Sacramento Naval Co. v. Salz, 273 U.S. 326 (1927); Black’s Law
Dictionary 1499 (6th ed. 1990). In contrast to the offenses that categorical-
ly relate to alien smuggling, the crime of transporting (or that of harboring,
or encouraging or inducing) does not necessarily relate to alien smuggling
as defined in popular or common law usage, or in the immigration statute
itself. The crime of transporting has distinct elements which do not involve
the secret, illicit, or unlawful importing or “bringing in” of an alien, or
inducing him to enter in violation of law. The transporting offense in sec-
tion 274(a) covers the actions of an individual who,
knowing or in reckless disregard of the fact that an alien has come to, entered, or
remains in the United States in violation of law, transports, or moves or attempts to
transport or move such alien within the United States by means of transportation or
otherwise, in furtherance of such violation of law.

Section 274(a)(1)(A)(ii) (emphasis added).

3
The deportation ground contains a temporal limitation on this conduct in relation to the date
of the alien’s entry into the United States, while the inadmissibility ground is not so limited.

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These elements pertain to an alien already in the United States, and the
scope of the section includes not only an alien who has entered or come to
this country unlawfully, but one who may well have been admitted lawful-
ly but remained in violation of law. It is clear from the text and title that both
section 237(a)(1)(E) and section 212(a)(6)(E) deal specifically and exclu-
sively with alien smuggling. By contrast, section 274(a) is entitled
“Bringing In or Harboring Certain Aliens” and covers a broad variety of
forms of conduct that extends beyond merely alien smuggling as described
in sections 237(a)(1)(E) and 212(a)(6)(E) of the Act. The parenthetical
phrase in section 101(a)(43)(N), “relating to alien smuggling,” should be
read as a modifying phrase that refers to those portions of section
274(a)(1)(A) and (2) that refer to conduct that is consistent with the act of
alien smuggling as defined in the afore-cited sections.
Moreover, section 101(a)(43)(N) of the Act contains an exception iden-
tical to that found in the grounds of inadmissibility and deportability per-
taining to smuggling. I note that this waiver is not available for lesser
offenses that occur after an alien has been smuggled in or has entered ille-
gally, such as harboring or transporting. I find the fact that Congress specif-
ically included the very same waiver in the aggravated felony ground refer-
ring to offenses “relating to alien smuggling,” which was provided origi-
nally under two sections entitled “Smuggling” and “Smugglers,” to consti-
tute a very forceful argument in support of the conclusion that Congress
contemplated sections 101(a)(43)(N), 237(a)(1)(E), and 212(a)(6)(E) to be
interpreted coextensively. Since the immigration laws always have penal-
ized alien smuggling much more severely than transporting, it is logical that
the ground of inadmissibility or deportability for alien smuggling would
contain a waiver, while other offenses under sections 274(a)(1) and (2)
would not need to include one.

2. Interpretation of “relating to”

Although the density and complexity of the Act has been subjected to
literary and mythological analogy, see, e.g., Lok v. INS, 548 F.2d 37 (2d
Cir. 1977) (likening the immigration laws to King Minos’ labyrinth in
ancient Crete), this is not a Lewis Carroll story and we are not in
Wonderland. Transporting, after an alien enters, comes to, or remains
unlawfully, is transporting after a smuggling incident occurred, if one
occurred at all. As the Fifth Circuit has recognized, transporting is a sep-
arate offense found in a separate subsection, which is distinguished by a
description distinct from that which describes either the act of illicitly
bringing in, or encouraging or inducing the unlawful and unauthorized
entry of an alien. See Rodriguez-Gutierrez v. INS, 59 F.3d 504, 509-10,
n.3 (5th Cir. 1995) (finding that the government misapplies the grounds of
inadmissibility for having “knowingly encouraged, induced, assisted,

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abetted, or aided any other alien to enter or try to enter the United States
in violation of law,” to the respondent, who was “convicted for transporting
illegal aliens rather than for aiding and abetting an entry” (emphasis
added)). It is not smuggling, and it is not necessarily an offense relating to
alien smuggling. A reference to portions of a statute “relating to alien smug-
gling” must refer to those portions that are related to alien smuggling.
Section 101(a)(43)(N) of the Act.
The phrase “relating to” is a term of art. See Matter of Beltran, 20 I&N
Dec. 521, 526 (BIA 1992) (interpreting the phrase “relating to” in relation
to whether an offense was a choate or inchoate crime, i.e., whether or not it
was dependent on the principal controlled substance offense); Matter of
Hou, 20 I&N Dec. 315 (BIA 1992) (discussing the phrase “relating to” in
relation to attempted offenses and as the phrase has been used to qualify
which offenses are covered under the deportation ground for controlled sub-
stance offenses), superseded on other grounds, Matter of Saint John, 21
I&N Dec. 593 (BIA 1996).
Our reasoning in these precedents supports the view that while certain
preparatory offenses such as aiding and abetting or conspiracy to bring an
alien to the country or encourage him to enter would be an offense “relat-
ing to alien smuggling,” a crime like transporting, which is a separate and
distinct criminal offense and has its own unique legal elements, is not nec-
essarily one relating to alien smuggling. Cf. Matter of Batista, 21 I&N Dec.
955, at 961 (BIA 1997) (holding that conviction for the offense of accesso-
ry after the fact is not a crime related to a controlled substance, because it
“has historically been treated as a crime separate and apart from the under-
lying crime,” and “does not take its ‘character and quality’ from the under-
lying drug crime”); Matter of Velasco, 16 I&N Dec. 281 (BIA 1977) (hold-
ing that misprision of a felony is not same as the crime concealed because
misprision is a separate and distinct crime and therefore is not a crime
“relating to the illicit possession of . . . marihuana”).
Although transporting may occur in relation to alien smuggling, such
as when an alien is illicitly brought into the United States and then moved
within the United States in furtherance of the alien’s unlawful entry
obtained through such smuggling, conviction for a transporting violation
is not at all dependent on smuggling activity. In fact, as discussed below,
a transporting violation depends only on knowledge that the alien trans-
ported, came to, entered, or remains in the United States unlawfully. Thus,
generally speaking, as a both legal and a factual matter, “transporting” is
not necessarily “related to alien smuggling.” In particular, as discussed
below, the absence of evidence in the record before us that the respondent
was either convicted of or charged with an alien-smuggling offense, or
that he was convicted of a transporting offense in which the elements of
alien smuggling were charged or otherwise part of the record of convic-
tion, also is a factor that militates strongly against finding him to have

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been convicted of an offense “relating to alien smuggling.”

B. Effect of the Phrase “relating to alien smuggling”

As we presume that Congress has included every word for a purpose,
we should shy away from any interpretation that would render any provi-
sion of a statute merely redundant. Stephens v. Cherokee Nation, 174 U.S.
445 (1899); National Park Bank v. Remsen, 158 U.S. 337 (1895); Caha v.
United States, 152 U.S. 211 (1894). Given this analytical framework, the
words “relating to alien smuggling” must be accorded some independent
meaning. Sutton v. United States, 819 F.2d 1289, 1294 n.9 (5th Cir. 1987).
If the aggravated felony section of the statute encompassed all subsec-
tions of sections 274(a)(1)(A) and (2), there would have been no reason to
include the words “relating to alien smuggling” in the statutory language.
Statutes must be interpreted in a manner that gives effect to each word and
does not render any provision of the same statute inconsistent, meaningless,
or superfluous. See Singer, supra, §§46.05, 46.06, at 90-92, 105; Aluminum
Co. of America v. Bonneville Power Admin., 903 F.2d 585 (9th Cir. 1989),
cert denied sub nom. California Public Utilities Comm’n v. FERC, 498 U.S.
1024 (1991). For practical purposes, the majority’s conclusion that the
respondent’s conviction for transportation of aliens is, per se, “relating to
alien smuggling” renders the parenthetical phrase meaningless by failing to
afford it any independent meaning.
Under accepted rules of statutory construction, “parentheses indicate
that the matter enclosed is in addition to, or in explanation of, the rest of the
sentence.” Holmes Financial Assoc., Inc. v. Resolution Trust Corporation,
33 F.3d 561, 567 (6th Cir. 1994). Thus, the parenthetical phrase, “relating
to alien smuggling,” provides an explanation or limitation of the text that
refers to sections 274(a)(1)(A) and (2). See Spartan Southwest, Inc. v.
EEOC, 461 F.2d 1055, 1057 (10th Cir. 1971) (stating that “the critical
words appear [to] refer[] to alternatives . . . we . . . follow . . . as a proper
interpretation of the statutory provision and . . . give effect to all of the lan-
guage contained in it”). Thus, by limitation, some subsections of sections
274(a)(1)(A) and (2) relate to alien smuggling, while others do not.
Moreover, an examination of the background of section 101(a)(43)(N)
of the Act supports the proposition that although Congress intended trans-
porting illegal aliens to be a punishable offense, it did not intend this provi-
sion to describe a deportable offense. The “relating to alien smuggling” par-
enthetical was included in section 101(a)(43)(N) when it was introduced to
the definition of aggravated felony by section 222(a) of the Immigration and
Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416, 108
Stat. 4305, 4320-22. By including this limiting language, it is apparent that
Congress did not wish to treat all criminal offenses described in section
274(a) as aggravated felonies—otherwise, as discussed below, there would

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be no need to include the parenthetical language at all, since the language
without the parenthetical would necessarily include all of the offenses list-
ed in section 274(a)(1). Instead, only offenses relating to alien smuggling
were to be classified as aggravated felonies and subject to the ground of
deportability pursuant to section 241(a)(2)(A)(iii) of the Act.

III. “RELATING TO ALIEN SMUGGLING” DOES NOT
NECESSARILY ENCOMPASS THE OFFENSE OF “TRANSPORTING”

Section 274(a)(1)(A)(i) of the Act directly involves alien smuggling, as
it penalizes the bringing in or attempting to bring in an alien at a place other
than a designated port of entry. In addition, alien smuggling, as defined as
a ground of inadmissibility or deportability, historically has involved the
crimes of “aiding and abetting” the bringing of an alien into the United
States. See sections 212(a)(6)(E), 237(a)(1)(E) of the Act; Matter of I-M-, 7
I&N Dec. 389 (BIA 1957); see also 6 Charles Gordon et al., Immigration
Law and Procedure § 71.04(6), at 71-99 (rev. ed. 1998) (entitled
“Smugglers of Aliens”). The other subsections of section 274(a), however,
may or may not relate to alien smuggling depending on the circumstances
of the offense for which the individual was convicted.
For example, section 274(a)(1)(A)(iv) penalizes a person who encour-
ages or induces an alien to come to, enter, or reside in the United States
knowingly or in reckless disregard of the fact that the alien’s entry, coming
to, or residence in the United States is in violation of law. Under this sub-
section, one who encourages or induces a person to come to or enter the
United States engages in alien smuggling. Carbajal-Gonzalez v. INS, 78
F.3d 194 (5th Cir. 1996). Nevertheless, one who is convicted of encourag-
ing or inducing an alien to reside in the United States may not have engaged
in alien smuggling. Cf. United States v. Oloyede, 982 F.2d 133 (4th Cir.
1992). Thus, an individual who encourages or induces an alien to reside in
the United States may not be subject to removal for a conviction “relating
to alien smuggling” that is an aggravated felony under section
101(a)(43)(N) of the Act.
Likewise, a person who “engages in any conspiracy to commit any of
the preceding acts,” section 274(a)(1)(A)(v)(I) of the Act, or “aids or abets
the commission of any of the preceding acts,” section 274(a)(1)(A)(v)(II),
may or may not have committed an offense relating to alien smuggling. If
a person is convicted of conspiring to commit or aiding and abetting a vio-
lation of section 274(a)(1)(A)(i), he or she has been convicted of a crime
relating to alien smuggling. Similarly, a person who conspires or aids and
abets a person to violate section 274(a)(1)(A)(iv) may have committed a
crime relating to alien smuggling, if he induces the person to enter or come
to the United States. However, according to the definition of smuggling in

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the statute, that person has not been convicted of a crime related to alien
smuggling if he merely aids and abets or conspires to encourage or induce
a person to reside in the United States. Cf. sections 212(a)(6)(E),
237(a)(1)(E) of the Act. Similarly, notwithstanding a conviction, such an
individual has not necessarily engaged in an offense related to alien smug-
gling if he conspires to engage in, or aids and abets the transporting, con-
cealing, or harboring of an alien.

A. No Evidence the Respondent Was Convicted of an Offense
“relating to alien smuggling” Under a Divisible Statute

There is no evidence in the record before us that the offense for which
the respondent was convicted involved alien smuggling. The primary dis-
tinction between the offenses under section 274(a) that actually involve
smuggling, and those that involve transporting in furtherance of a violation
of law (or harboring, or encouraging, or inducing to reside), is that the lat-
ter offenses do not involve the actual bringing in or inducing the alien into
entering the United States in violation of law. Alien smuggling involves the
act of actually bringing in, or encouraging the alien to enter, or conduct that
amounts to conspiring in, or aiding or abetting the accomplishment of these
offenses. United States v. Cantu, 557 F.2d 1173, 1180 (5th Cir. 1977)
(reflecting the understanding that section 274 includes activities that are not
part of alien smuggling), cert. denied, 434 U.S. 1063 (1978); United States
v. DeEvans, 531 F.2d. 428, 430 n.4 (9th Cir. 1976) (recognizing that har-
boring need not be part of the chain of transactions in smuggling), cert.
denied, 429 U.S. 836 (1976). By contrast, a transporting offense can take
place many miles from the border and a long time after the initial bringing
in or encouraging the alien to enter the country. United States v. Aguilar,
883 F.2d 662, 667 (9th Cir. 1989) (involving a conviction for transporting
aliens from Chicago to cities throughout the United States), cert. denied,
498 U.S. 1046 (1991).
Notably, the offenses of “transporting” and “harboring” not only
encompass an individual’s conduct in relation to a person who already has
entered the United States, but cover his or her conduct in relation to a per-
son who “remains in” the United States in violation of law. See sections
274(a)(1)(A)(ii), (iii) of the Act (emphasis added). Certainly, a conviction
under either of these subsections need have nothing to do with “smug-
gling,” which is conduct that entails secretly and illicitly “importing,”
“exporting,” or “bringing in” an alien in violation of the law. See, e.g.,
United States v. Merkt, 764 F.2d 266, 269 (5th Cir. 1985) (finding no
requirement that a nexus between the entry and the subsequent transport-
ing be established).
As the consideration of these separate provisions demonstrate clearly,
section 274 is a divisible statute, which encompasses violations that relate

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to alien smuggling and those that do not. Demonstrating the separability of
charges under section 274 related to actual smuggling, or the inducing or
bringing in, of aliens, and other acts, such as transporting or harboring that
occur once the alien is in the United States, the Fifth Circuit distinguished
the Ninth Circuit case relied on by the majority, United States v. Sanchez-
Vargas, 878 F.2d 1163 (9th Cir. 1989), in which the conduct constituting
both smuggling and transporting was found to overlap. See United States v.
DeValle, 894 F.2d 133 (5th Cir. 1990).
In DeValle, the court explained that “[t]he transporting is denounced by
section 1324(a)(1)(B) and the harboring is separately denounced in section
1324(a)(1)(C). While it may well be that separate offenses cannot be made
out by simply characterizing transporting as harboring, or vice versa, that is
clearly not what was either charged or proved here.” Thus, the Fifth Circuit
recognizes that, unlike the situation in United States v. Sanchez-Vargas,
supra, in which “the underlying criminal conduct consists of the singular
act or transaction of driving an undocumented person across the United
States-Mexico border,” id. at 1167, so that the defendant, carrying the alien
“necessarily committed the offenses of bringing in and transporting at vir-
tually the same time and place,” id. at 1171, it is possible for each substan-
tive offense to consist of distinct conduct, to occur at separate times and
places, and to be of a different character.
The Fifth Circuit’s recognition of the clear distinctions between the
subsections of section 274(a) demonstrates both the divisible nature of sec-
tion 274(a), and the divisible nature of the transporting subsection itself. It
is appropriate to treat section 274 as we would any other divisible statute
under which a respondent was convicted. Cf. Matter of Teixeira, 21 I&N
Dec. 316 (BIA 1996). Arguably, as transporting may involve both driving
an alien over the border and into the United States, and transporting a per-
son within the United States in furtherance of his violation of law after he
has come to, entered, or remained in this country, the fact of a transporting
conviction alone is inadequate to satisfy the Service’s burden of proving
that the respondent was convicted of a violation of sections 274(a)(1)(A) or
(2), “relating to alien smuggling.”
The burden is on the Service to prove the grounds of deportability by
evidence that is clear, unequivocal, and convincing. Woodby v. INS, 385
U.S. 276 (1966); 8 C.F.R. 24.46(a) (1998). To prove that a transporting con-
viction is one “relating to alien smuggling,” the Service would have to sub-
mit competent evidence in the record of conviction, indicating that the con-
duct for which the respondent was convicted was “relating to alien smug-
gling.” See Matter of Short, 20 I&N Dec. 136, 137-38 (BIA 1989) (citing
Matter of Esfandiary, 16 I&N Dec. 659, 661 (BIA 1979) (defining the
“record of conviction” as including the indictment, plea, verdict and sen-
tence)); Matter of Mena, 17 I&N Dec. 38 (BIA 1979) (considering a tran-
script of arraignment in which respondent pled guilty); see also Matter of

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Rodriguez-Cortez, 20 I&N Dec. 587, 588 (BIA 1992) (including an “infor-
mation” as part of the “record of conviction”). In the case before us, there
is no evidence whatsoever that the respondent’s conviction for transporting
involved any conduct that could be deemed to be “relating to alien smug-
gling.”
I conclude that the words “relating to alien smuggling” limit the aggra-
vated felony definition to the two subsections—274(a)(1)(A)(i) and
(a)(2)—that clearly involve alien smuggling, and under certain circum-
stances to the three subsections—274(a)(1)(A)(iv), (v)(I), and (v)(II)—that
may involve alien smuggling. Instead of spelling out in a cumbersome, con-
fusing, and complicated manner which of the seven subsections always
relate to alien smuggling and which of the subsections only may relate
depending on the circumstances, Congress chose to use the plain and ordi-
nary words “relating to alien smuggling” to indicate and limit which of the
many offenses under sections 274(a)(1)(A) and (2) are to be included in the
definition of an aggravated felony under section 101(a)(43)(N).

B. Agency and Federal Court Support for the
Interpretation that the Statute is Divisible

The interpretation that Congress’ original intention was to make trans-
porting illegal aliens a punishable, but not necessarily a deportable, offense
is supported by Board and circuit court decisions. The Board has specifi-
cally found that “it was the intention of Congress to make it a criminal
offense, but not a deportable offense, to transport, conceal, etc., under sec-
tion 274 an alien illegally in the United States . . . .” Matter of I-M-, 7 I&N
Dec. 389, 391 (BIA 1957). We have also found that an alien who was con-
victed of transporting illegal aliens was deportable because the evidence
presented at his hearing proved that he had, in fact, arranged for their trans-
portation while in Mexico and therefore had induced and assisted the aliens
in illegally entering the United States. Matter of Valdovinos, 14 I&N Dec.
438, 439 (BIA 1973). The Fifth Circuit has recognized that an alien con-
victed of “transporting illegal aliens” is not excludable under section
212(a)(6)(E) of the Act, because that provision relates to alien smuggling.
Rodriguez-Gutierrez v. INS, 59 F.3d 504, 510 n.3 (5th Cir. 1995). Finally, as
noted above, although the Ninth Circuit has found that alien smuggling and
transporting illegal aliens may be related if they involve the very same act
(i.e., the defendant drove illegal aliens across the United States-Mexico bor-
der and continued driving, without stopping, in the United States), the Fifth
Circuit has found that “transporting” and “harboring” illegal aliens are not
duplicative, but constitute separate, distinct offenses. Compare United
States v. Sanchez-Vargas, supra, with United States v. DeValle, supra.
I note, moreover, that section 101(a)(43)(N) has been amended twice
by Congress since its inclusion in the Act. First, section 101(a)(43)(N) was

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amended to read “paragraph (1)(A) or (2) of section 274(a).” Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 441(e),
110 Stat. 1214, 1277-78 (“AEDPA”). Section 101(a)(43)(N) was again
amended by section 321(a) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208,
3009-546, 3009-628 (“IIRIRA”), which eliminated the requirement of the
imposition of a 5-year sentence in order for the offense to constitute an
aggravated felony, and added an exemption in the case of a first offense for
smuggling one’s own spouse, child, or parent. Therefore, both the AEDPA
and IIRIRA substantively changed section 101(a)(43)(N), and yet, in nei-
ther instance did Congress amend the parenthetical to include transporting
or harboring aliens, or simply omit the parenthetical altogether. In light of
the fact that judicial decisions made prior to the enactment of the AEDPA
and IIRIRA have interpreted “transporting illegal aliens” to be an offense
separate and distinct from “alien smuggling,” had Congress intended to fur-
ther expand the definition of aggravated felony in this area, it is reasonable
to assume that it would have also amended the parenthetical language.
This interpretation is bolstered by the fact that various authoritative
treatises and articles that have addressed the issue have considered alien
smuggling and transporting illegal aliens to be unrelated offenses. See 6
Gordon, supra, § 71.04[6], at 71-99 (stating that the “removal mandate . .
. does not affect aliens who transported or harbored illegal entrants in the
United States, unless they also aided in the unlawful entry”); Susan L.
Pilcher, Justice Without a Blindfold: Criminal Proceedings and the Alien
Defendant, 50 Ark. L. Rev. 269, 329 (1997) (noting that it is better to plead
guilty to felony transporting alien charge than misdemeanor aiding and
abetting illegal entry, which involves elements of deportability); Robert
James McWhirter, The Rings of Immigration Hell: The Immigration
Consequences To Aliens Convicted of Crimes, 10 Geo. Immigr. L.J. 169,
176 (1996) (“One possible way to avoid the aggravated felony definition is
to plead to harboring or transporting aliens as this does not ‘relate to alien
smuggling.’”); Tarik H. Sultan, Immigration Consequences of Criminal
Convictions: A Guideline for the Criminal Defense Attorney, 30-JUN Ariz
Att’y 15, 28 (1994) (unlike misdemeanor aiding and abetting charge, felony
transportation of illegal aliens not a prima facie ground of deportability,
because defendant not assisting with illegal entry).
In Matter of I-M-, supra, we held that transportation of an alien within
the United States did not render the respondent deportable under the alien
smuggling provisions of the Act. The Board reversed the erroneous reason-
ing of the special inquiry officer, who had found that alien smuggling was
encompassed under any of the four subdivisions of former section 274(a),
holding that while Congress had criminalized wider conduct such as trans-
porting or concealing aliens, the deportation statute did not encompass the
offense of transporting. We concluded that without further proof that the

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accused person was somehow involved in the scheme to facilitate the alien’s
entry, the offense of transporting did not involve alien smuggling. Id. at 391.
The majority’s blithe rejection of the respondent’s citation of this
precedent invokes smoke and mirrors worthy of the “looking glass,” to
which I alluded not so obliquely in my earlier references to Lewis Carroll.
The majority rejects that citation, along with federal circuit court rulings in
accord with it, stating that it was a case “rendered prior to the introduction
of the aggravated felony definition and ground of deportability.” So? What
kind of answer is that?
Is not the question we are addressing in this very opinion whether or
not every offense under sections 274(a)(1)(A) and (2) is “relating to alien
smuggling” under section 101(a)(43)(N) of the Act? Rather than answer-
ing the question, the majority states, circularly: The respondent’s reliance
on Matter of I-M-, supra, is unpersuasive, because transporting is smug-
gling, which is because the aggravated felony definition states that offenses
under sections 274(A)(1)(A) and (2) are offenses relating to alien smug-
gling. Therefore, notwithstanding our precedent decision in Matter of I-M-,
supra, holding that transporting is not smuggling, that precedent is mean-
ingless because we are operating under a new statute that (notwithstanding
that we are here in the process of attempting to interpret it) states that
offenses relating to smuggling are smuggling offenses.
The majority apparently concludes that the aggravated felony definition
somehow overrules or supersedes our holding that transportation is not smug-
gling because, despite it being the very issue before us, in the majority’s view,
a reference to alien smuggling encompasses and supersedes everything. Then
they march right on to trample over federal court decisions, including one
from the circuit in which this case arises, again invoking the amendment of
the aggravated felony provisions as authority to ignore our precedent decision
and the decisions of these courts of appeals because “these cases did not
involve aliens who were charged . . . as an alien convicted of an aggravated
felony.” Matter of Ruiz-Romero, supra, at 492.
The authors, contributors, and proponents of the bills that expanded the
aggravated felony provisions would do better to take stock of the human
consequences being wrought by their excesses and the erroneous and
unsupported interpretations the IIRIRA has wrought. However, at the very
least, they and their supporters in the executive branch should, at a mini-
mum, be true to the language of the legislation that has become law.
Nothing in the law changes the distinction between transporting and bring-
ing in or encouraging or inducing to enter the United States that we deter-
mined in our decision in Matter of I-M-, supra. The fact that a violation of
section 274(a) relating to alien smuggling is an aggravated felony changes
nothing about the question of what is smuggling and what is transporting.
The language is fact. The rest is hysteria.

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C. The Rule of Lenity

The rule of lenity, or the principle that when any doubts exist as to the
proper interpretation of the statute, we construe any ambiguity presented in
favor of the alien, is a longstanding principle. INS v. Cardoza-Fonseca,
supra, at 448; INS v. Errico, 385 U.S. 214, 225 (1966); Fong Haw Tan v.
Phelan, 333 U.S. 6, 10 (1948); Matter of Tiwari, 19 I&N Dec. 875, 881
(BIA 1989). Despite the extensive amendments of the statute, this principle
remains intact today. As I stated in my dissent in Matter of N-J-B-, 21 I&N
Dec. 812 (BIA, A.G. 1997),

Congress has not legislated away the long-accepted canon of construction that ambi-
guities in deportation statutes are to be construed in favor of the alien. And this is not
an invitation to do so, as any such attempt would be likely to clash with the due process
clause of the Fifth Amendment of the United States Constitution. . . . As a practical
matter, it means that in deportation matters, when the law is less than clear, the bene-
fit of the doubt goes to the noncitizen.

Id. at 38. Nevertheless, as I was forced to conclude then, and again, am
forced to conclude now, “[I]n their opinion today, [the majority] communi-
cate[s] the message that, after the IIRIRA, the benefit of the doubt has been
turned on its head. Like Alice in Through the Looking Glass, what was the
benefit of the doubt, now has become, the doubt that any alien should
receive a benefit.” Id.

IV. CONCLUSION

The majority decision is wrong. It is contrary to the canons of statuto-
ry interpretation and contrary to our own precedent and federal court law.
Consequently, I dissent.

511

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6074578. Public record. Not legal advice.