Vinodbhai Bholidas Patel v. JOHN ASHCROFT, Attorney General of the United States

PRECEDENTIAL
Filed June 20, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3365
VINODBHAI BHOLIDAS PATEL,
Petitioner
v.
JOHN ASHCROFT, Attorney General of the United States,
Respondent
On Petition for Review from the
Board of Immigration Appeals
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 8, 2002
BEFORE: McKee, Barry, Circuit Judges, and
Alarcon, Senior Circuit Judge*
(Opinion Filed: June 20, 2002)
JAMES J. ORLOW, ESQ.
600 Chestnut Street -- Suite 656
Philadelphia, PA 19106
Attorney for Petitioner
_________________________________________________________________
* The Honorable Arthur L. Alarcon, Senior Circuit Judge of the United
States Court of Appeals for the Ninth Circuit, sitting by designation.
ROBERT D. McCALLUM, JR., ESQ.
Assistant Attorney General
Civil Division
DAVID J. KLINE, ESQ.
Principal Deputy Director
HUGH G. MULLANE, ESQ.
Senior Litigation Counsel
DAVID J. KLINE, ESQ.
JOHN M. McADAMS, JR., ESQ.
TERRI J. SCADRON, ESQ.
Office of Immigration Litigation
Civil Division
United States Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Attorneys for Respondent
OPINION OF THE COURT

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McKEE, Circuit Judge:
This petition for review of an order of removal requires
that we determine if a conviction for harboring an alien
constitutes an "aggravated felony." The Immigration Judge
(sometimes referred to as "IJ") concluded that it was, and
that the permanent resident alien who is the petitioner here
was therefore removable. For the reasons that follow,
inasmuch as we agree with the IJ’s conclusion, we must
dismiss the petition for review because we lack subject
matter jurisdiction.
I. FACTS AND PROCEDURAL HISTORY
Vinodbhai Bholidas Patel is a native and citizen of India
who was admitted to the United States as a nonimmigrant
in 1984. In 1990, he adjusted his status to that of lawful
permanent resident. However, on January 10, 2000, he
pled guilty to harboring an alien in violation of
S 274(a)(1)(A)(iii) of the Immigration and Naturalization Act
("INA"), 8 U.S.C. S 1324(a)(1)(A)(iii), and was subsequently
sentenced to five months imprisonment, followed by three
years of supervised release.
2
While he was serving his sentence, the Immigration and
Naturalization Service ("INS") issued a Notice to Appear
charging him with being removable based upon his
conviction for an aggravated felony as defined in INA
S 101(a)(43)(N), 8 U.S.C. S 1101(a)(43)(N). The INS alleged
that harboring an alien is an aggravated felony rendering
Patel removable. Based upon that Notice, the INS
eventually took Patel into custody and placed him in
detention.1
At a hearing before an Immigration Judge on February
15, 2001, Patel, through counsel, acknowledged the fact of
his conviction, but argued that his crime was not an
aggravated felony as defined in the INA. He did not,
however, request relief from removal.2 The IJ disagreed, and
held that harboring an alien was an aggravated felony and
that Patel was therefore removable as charged. Accordingly,
the IJ ordered Patel removed to India. The Board of
Immigration Appeals ("BIA") affirmed, and this petition for
review followed.
_________________________________________________________________
1. This is the second time that Patel has been before this court. While he
was in INS custody, he challenged his mandatory detention in a habeas
petition under 28 U.S.C. S 2241. See 8 U.S.C. S 1226(c). The district
court denied his request for habeas relief. However, we reversed, holding
that INA S 1226(c)’s mandatory detention provision was unconstitutional.
Accordingly, he was ordered released from INS custody unless the
government promptly determined whether his continued detention was
necessary to prevent risk of flight or danger to the community. Patel v.
Zemski, 275 F.3d 299 (3d Cir. 2001).
2. The statutory provisions for relief from removal include cancellation of

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removal, INA S 240A, 8 U.S.C. S 1229b, withholding of removal, INA
S 241(b)(3), 8 U.S.C. S 1231(b)(3), asylum, INA S 208(a), 8 U.S.C. S 1158,
voluntary departure, INA S 240B, 8 U.S.C.S 1229c, and Article 3 of the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc., No.
100-20 (1988), as well as non-statutory options such as post-conviction
relief or legitimate claims of citizenship. However,"aliens who have
committed aggravated felonies are not eligible for some of these forms of
relief." Patel, 275 F.3d at 314 n.11.
3
II. DISCUSSION
A. Standard of Review
At the outset, we note that there is some confusion
surrounding the proper standard of review in cases such as
this. We usually afford deference to decisions of
administrative agencies when we are reviewing the agency’s
interpretation of a statute the agency is charged with
administering. See Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). This deference
recognizes the agency’s expertise in addressing issues that
often arise when interpreting such statutes. However, we
recognize that legal issues that turn on a pure question of
law not implicating the agency’s expertise do not raise the
same concerns under Chevron. See Sandoval v. Reno, 166
F.3d 225, 250 (3d Cir. 1999) ("An issue concerning a
statute’s effective date is not one that implicates agency
expertise in a meaningful way, and does not, therefore,
appear to require Chevron deference."). Accordingly, when
we are called upon to resolve pure questions of law by
statutory interpretation, we decide the issue de novo
without deferring to an administrative agency that may be
involved. INS v. Cardoza-Fonesca, 480 U.S. 421, 446
(1987). Our analysis here involves a pure question of law
because we must determine if Patel’s criminal conviction is
an "aggravated felony" under 8 U.S.C. S 1252(a)(2)(C); the
relevant statute. Moreover, inasmuch as our subject matter
jurisdiction turns upon that inquiry, the need to defer to
the expertise of the INS is attenuated at best. Nevertheless,
we have previously suggested that some deference is still
required under Chevron even though we are reviewing a
purely legal question such as the BIA’s interpretation of a
criminal statute. See Drakes v. Zimski, 240 F.3d 246, 250
(3d Cir. 2001).
In Drakes, we noted that our decision in Sandoval
predated the Supreme Court’s decision in INS v. Aguirre-
Aguirre, 526 U.S. 415 (1999) wherein the Court reversed
the decision of the Court of Appeals for the Ninth Circuit
because the circuit court had not afforded proper deference
to the BIA’s interpretation of a statute. However, Aguirre-
Aguirre concerned the extremely sensitive issue of whether
4

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criminal conduct that an alien admitted committing in
Guatemala precluded the alien’s eligibility for asylum or
withholding of deportation from the United States. The
alien claimed that his conduct in Guatemala should not bar
his eligibility for that relief because he committed those
crimes as part of a protest against certain policies of the
government of Guatemala. The IJ granted the requested
relief holding that the alien had demonstrated a well
founded fear of persecution based upon his political beliefs
if he was returned to Guatemala. The BIA reversed. The BIA
did not decide if the alien had demonstrated a risk of
persecution. Rather, the BIA simply concluded that the
alien "had committed a serious nonpolitical crime" within
the meaning of the relevant statute, and he was therefore
not eligible for asylum or withholding of deportation. 526
U.S. at 422. However, the court of appeals reversed the
BIA’s ruling. That court held that the BIA should have
weighed certain factors before deciding that the alien’s
Guatemalan crimes destroyed his eligibility for asylum or
withholding of deportation. The Supreme Court reversed. In
doing so, the Court stated:
It is clear that principles of Chevron deference are
applicable to this statutory scheme. . . . In addition, we
have recognized that judicial deference to the Executive
Branch is especially appropriate in the immigration
context where officials exercise especially sensitive
political functions that implicate questions of foreign
relations. A decision by the Attorney General to deem
certain offenses violent offenses committed in another
country as political in nature, and to allow the
perpetrators to remain in the United States, may affect
our relations with that country or its neighbors. The
judiciary is not well positioned to shoulder primary
responsibility for assessing the likelihood and
importance of such diplomatic repercussions.
Id. (internal quotation marks and citations omitted). Those
considerations were not present in Drakes, and they are
absent here. Ultimately, we did not decide if Chevron
deference applied to our analysis in Drakes because we
concluded that the result would be the same whether we
afforded de novo or deferential review. That is also our
5
situation here. Therefore, we need not now decide the issue
of whether deference should be afforded to the BIA’s
interpretation of the statutory definition of "aggravated
felon." Just as in Drakes, our result would be the same
whether we afford the BIA’s statutory interpretation
deferential or de novo review. Under either scope of review
we conclude that the BIA did not err in concluding that
Patel has been convicted of an aggravated felony.
B. Jurisdiction
Under S 242(a)(2)(C) of the INA, 8 U.S.C.S 1252(a)(2)(C),
courts of appeals lack jurisdiction to review a final order of

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removal for an alien convicted of one or more specified
criminal offenses, including any aggravated felony. 3
However, notwithstanding the seemingly broad restriction
of jurisdiction contained in S 242(a)(2)(C), we retain the
jurisdiction to determine whether we can review a decision
of the BIA even though that review entails the same inquiry
as a review of the merits of the BIA’s decision; i.e., whether
the underlying criminal offense is an "aggravated felony."
Therefore, we have jurisdiction here to determine whether
Patel is an alien, and whether he is removable by reason of
having been convicted of one of the enumerated offenses in
INA S 242(a)(2)(C). See Drakes, 240 F.3d at 247. If both of
those conditions are satisfied, S 242(a)(2)(C) prohibits
further adjudication of the petition for review and we must
dismiss for lack of jurisdiction. Id. at 248. However, if either
condition is not satisfied, our review is not precluded, and
we have jurisdiction to review the BIA’s decision. Id. In that
instance, the petition for review must be granted and the
order of removal vacated. Id. Simply put, we have
jurisdiction to determine our jurisdiction under
S 242(a)(2)(C). Drakes, 240 F.3d at 247. Our inquiry here
_________________________________________________________________
3. INA S 242(a)(2)(C) provides, in pertinent part: "Notwithstanding any
other provision of law, no court shall have jurisdiction to review any final
order of removal against an alien who is removable by reason of having
committed a criminal offense covered in [8 U.S.C.S ] 1182(a)(2) or
1227(a)(2)(A)(iii), (B), (C), or (D) of this title. . . ." The offenses referred to
in S 1252 include aggravated felonies; controlled substance convictions;
certain firearm, national security, and defense crimes; and multiple
convictions for crimes of moral turpitude.
6
need only focus on the second factor since it is undisputed
that Patel is an alien. The instant dispute centers instead
on whether Patel’s conviction for harboring aliens is an
aggravated felony, rendering him removable. The
jurisdiction inquiry is, therefore, a back-door merits inquiry
because the former supplies the answer for the latter.
C. Is a Conviction for Harboring Aliens
an Aggravated Felony?
INA S 274(a)(1)(A) provides as follows:
Bringing in and harboring certain aliens
(a) Criminal penalties
(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 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

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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; or
7
(v)(I) engages in any conspiracy to commit any of the
preceding acts, or
(II) aids or abets the commission of any of the
preceding acts,
shall be punished as provided in subparagraph (B).
8 U.S.C. SS 1324(a)(1)(A)(i), (ii), (iii), (iv) and (v) (italics
added). Patel pled guilty to harboring an alien, in violation
of INA S 274(a)(1)(A)(iii) - the italicized portion of
S 274(a)(1)(A) set forth above. INA S 241(a)(2)(A)(iii) provides:
"[a]ny alien who is convicted of an aggravated felony at any
time after admission is deportable."4 8 U.S.C.
S 1227(a)(2)(A)(iii). "Aggravated felony" is defined to include:
an offense described in paragraph (1)(A) or (2) of
section 1324 (a) of this title (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 chapter.
8 U.S.C. S 1101(a)(43)(N) (italics added).
Patel’s challenge to the Immigration Judge’s ruling is
rather literal. He focuses on the statute’s reference to alien
"smuggling" and argues that his conviction for harboring an
alien cannot be an aggravated felony because the alien he
harbored was already in this country and he (Patel) had no
part in the alien’s illegal admission or entry. 5 Simply put,
he argues that since he was not convicted of bringing the
alien into this country ("smuggling"), his conviction for

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"harboring" an alien already here is not an aggravated
felony.
_________________________________________________________________
4. Congress has replaced the term "deportation" with "removal." See
Omnibus Appropriations Act of 1997, Pub.L. No. 104-208, div. C, S 308,
1996 U.S.C.C.A.N. (110 Stat.) 3009-620, 3009-621. However, the change
in nomenclature has yet to make its way into all of the existing sections
of the United States Code.
5. The government does not dispute Patel’s claim that he had no part in
the alien’s illegal entry to the United States.
8
We disagree. We believe that the parenthetical:"relating
to alien smuggling" in INA S 101(a)(43)(N), is descriptive and
not restrictive. The phrase is nothing more than a short-
hand description of all of the offenses listed in INA
S 274(a)(1)(A). Congress did not intend it to be a substantive
restriction limiting which of the several offenses specified in
S 274(a)(1)(A) applies to S 101(a)(43)(N). Consequently, the
offense of harboring an alien in violation of INA
S 274(a)(1)(A)(iii) is an aggravated felony rendering Patel
removable.
This reading of the statute is consistent with that of every
appellate court that has considered this issue. See Gavilan-
Cuate v. Yetter, 276 F.3d 418 (8th Cir. 2002); Castro-
Espinosa v. Ashcroft, 257 F.3d 1130 (9th Cir. 2001); United
States v. Galindo-Gallegos, 244 F.3d 728 (9th Cir. 2001);
United States v. Salas-Mendoza, 237 F.3d 1246 (10th Cir.
2001); Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. 2000);
United States v. Monjaras-Castaneda, 190 F.3d 326 (5th
Cir. 1999). We realize that not all of these cases involved
petitions for review of removal orders. Galindo-Gallegos,
Salas-Mendoza, and Monjaras-Castaneda concerned the
interpretation of the Sentencing Guidelines. However, those
cases are nevertheless relevant to our inquiry.
Section 2L1.2(b)(1)(A) of the Guidelines is entitled:
"Unlawfully Entering or Remaining in the United States,"
and provides for a 16 level increase in the applicable
offense level if a defendant is convicted of illegal re-entry
after a criminal conviction for an aggravated felony.6
_________________________________________________________________
6. Monjaras-Castaneda, Salas-Mendoza and Galindo-Gallegos were all
deported after aggravated felony convictions for illegally transporting
aliens. Thereafter, they all illegally re-entered the United States and were
apprehended. After their convictions for illegal re-entry, their offense
levels were enhanced by 16 points because of their prior aggravated
felony convictions for illegally transporting aliens.
The issue of whether the BIA’s prior determinations that the aliens’
illegal transportation convictions were aggravated felonies rendering
them deportable would preclude the aliens from arguing at their
sentencing hearings for the subsequent illegal re-entry convictions that
their prior illegal transporting convictions were not aggravated felonies

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was not discussed or addressed.
9
Application Note One to that Guideline states: an
"[a]ggravated felony is defined at 8 U.S.C.S 1101(a)(43)(N)."
U.S.S.G. S 2L1.2, comment, n.1. Therefore, although the
issue arises in a slightly different context when courts are
presented with a petition for review of a removal order than
when courts must determine the appropriate sentence
under the Sentencing Guidelines, both sets of precedent
address the "relating to alien smuggling" parenthetical in
S 1101(a)(43)(N).
In interpreting that statute we note, as a matter of
general structure and context, that Congress included a
catalogue of aggravated felonies and described each by
reference to criminal offenses outside the confines of the
INA; viz., offenses contained in titles 18, 21, 26 and 50 of
the United States Code. Specifically, subparagraphs (D), (E),
(H), (I), (J), (K), (L), (M), and (P) of INA S 101(a)(43) define
aggravated felonies by specific reference to section numbers
of the Code and then include a parenthetical setting forth
the general nature of the referenced offenses.7 This leads us
_________________________________________________________________
7. INA S 101(a)(43), provides in relevant part, as follows:
(a) As used in this chapter--
**********
(43) The term "aggravated felony" means--
**********
(D) an offense described in section 1956 of Title 18 (relating to
laundering of monetary instruments) or section 1957 of that title
(relating to engaging in monetary transactions in property derived
from specific unlawful activity) if the amount of the funds exceeded
$10,000;
(E) an offense described in--
(i) section 842(h) or (i) of Title 18, or section 844(d), (e), (f), (g),
(h), or (i) of that title (relating to explosive materials offenses);
(ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or
924(b) or (h) of Title 18 (relating to firearms offenses); or
(iii) section 5861 of Title 26 (relating to firearms offenses);
**********
10
to conclude that these parentheticals are intended only as
a general illustration of the referenced criminal statutes.

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_________________________________________________________________
(H) an offense described in section 875, 876, 877, or 1202 of Title
18 (relating to the demand for or receipt of ransom);
(I) an offense described in section 2251, 2251A, or 2252 of Title 18
(relating to child pornography);
(J) an offense described in section 1962 of Title 18 (relating to
racketeer influenced corrupt organizations), or an offense described
in section 1084 (if it is a second or subsequent offense) or 1955 of
that title (relating to gambling offenses), for which a sentence of one
year imprisonment or more may be imposed;
(K) an offense that--
(i) relates to the owning, controlling, managing, or supervising of
a prostitution business;
(ii) is described in section 2421, 2422, or 2423 of Title 18
(relating to transportation for the purpose of prostitution) if committed
for commercial advantage; or
(iii) is described in section 1581, 1582, 1583, 1584, 1585, or
1588 of Title 18 (relating to peonage, slavery, and involuntary
servitude);
(L) an offense described in--
(i) section 793 (relating to gathering or transmitting national
defense information), 798 (relating to disclosure of classified
information), 2153 (relating to sabotage) or 2381 or 2382 (relating to
treason) of Title 18;
(ii) section 421 of Title 50 (relating to protecting the identity of
undercover intelligence agents); or
(iii) section 421 of Title 50 (relating to protecting the identity of
undercover agents);
(M) an offense that--
(i) involves fraud or deceit in which the loss to the victim or
victims exceeds $10,000; or
(ii) is described in section 7201 of Title 26 (relating to tax
evasion) in which the revenue loss to the Government exceeds
$10,000;
11
The parentheticals thus assist the reader who is attempting
to determine whether a particular offense constitutes an
aggravated felony. As one court of appeals has suggested:
Section 1101(a)(43) contains a long list of aggravated
felonies that it references by section number. Without
any descriptions of what this "litany of numbers"
referred to, determining whether an offense qualified as

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an aggravated felony would be a long and arduous
process. One would need to look up each section
number in the Code to get to the right one. The
parentheticals here provide an "aid to identification"
only.
Monjaras-Castaneda, 190 F.3d at 330; see also United
States v. Salas-Mendoza, 237 F.3d at 1247 ("Section
1101(a)(43) contains a long list of aggravated felonies
referenced by section number. Without any descriptions of
what the section numbers refer to, determining whether an
offense qualifies as an aggravated felony would be a
laborious process."); Galindo-Gallegos, 244 F.3d at 734
_________________________________________________________________
**********
(P) an offense (i) which either is falsely making, forging,
counterfeiting, mutilating, or altering a passport or instrument in
violation of section 1543 of Title 18, or is described in section
1546(a) of such title ((P) an offense (i) which either is falsely making,
forging, counterfeiting, mutilating, or altering a passport or
instrument in violation of section 1543 of Title 18, or is described in
section 1546(a) of such title (relating to document fraud) and (ii) for
which the term of imprisonment is at least 12 months, 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 chapter;) and (ii) for
which the term of imprisonment is at least 12 months, 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 chapter;. . . .
8 U.S.C. SS 1101(a)(43)(D), (E), (H), (I), (J), (K), (L), (M) and (P) (italics
added).
12
("The function of the descriptive language appears to be to
make reading the statute easier, so that one does not have
to look up each citation to see what it is about, and to
protect against scrivener’s error in getting the statute from
the drafting desk to the United States Code.").
Moreover, this interpretation of the statute is
corroborated by the fact that other subsections have
parentheticals that are expressly restrictive or limiting. For
example, INA S 101(a)(43)(F), defines an aggravated felony
as "a crime of violence (as defined in section 16 of title 18,
but not including a purely political offense) for which the
term of imprisonment [is] at least one year." 8 U.S.C.
S 1101(a)(43)(F) (italics added). Similarly, INA S 101(a)(43)(J),
defines an aggravated felony as "an offense described in [18
U.S.C. S 1962] (relating to racketeer influenced corrupt
organizations), or an offense described in [18 U.S.C. S 1084]
(if it is a second or subsequent offense)." 8 U.S.C.
S 1101(a)(43)(J) (italics added). Such parentheticals clearly

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establish that Congress used restrictive or limiting language
where it intended a parenthetical to limit or refine a given
provision.
With this general structure and context in mind, we turn
to the specific provision at issue here. As noted above, INA
S 101(a)(43)(N) defines an aggravated felony as
an offense described in paragraph (1)(A) or (2) of
section 1324 (a) of this title (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 chapter.
8 U.S.C. S 1101(a)(43)(N) (italics added). Perhaps the most
compelling reason to find that the "relating to alien
smuggling" parenthetical is descriptive and not limiting is
(as the Court of Appeals for the Fifth Circuit has noted)
that "conventional rules of grammar" demonstrate "that the
parenthetical, ‘relating to alien smuggling’ refers to
‘paragraph (1)(A) or (2) of section 1324(a) of this title,’ not
‘offense.’ " Monjaras-Castaneda, 190 F.3d at 329 (citing 8
13
U.S.C. S 1101(a)(43)(N)). The parenthetical"relating to alien
smuggling" is contained in the prepositional phrase
beginning: "in . . . ." "[P]aragraph" is the subject of that
phrase and, therefore, it clearly refers to "paragraph (1)(A)
or (2) of section 1324(a) of this title." Id. If the parenthetical
were intended to be restrictive, it would have been placed
directly after the word "offense." The statute would then
read: "an offense (relating to alien smuggling) described in
paragraph (1)(A) or (2) of section 1324(a)." Id. That wording
would be consistent with Patel’s claim. However, that is not
what Congress did, that is not what the statute says, and
we can not amend the statute in that manner. Yet,
accepting Patel’s argument would result in just such a
judicial amendment of the statute.
We also note that "smuggling" does not appear anywhere
in the text of INA S 274(a)(1)(A). This underscores the fact
that insertion of the "relating to alien smuggling"
parenthetical in INA S 101(a)(43)(N) simply reflects the wide
range of illegal activities Congress has subsumed under the
rubric of "alien smuggling" proscribed inS 274(a)(1). The
legislative history of S 274(a)(1) "exhibits Congress’
continuing efforts to strengthen federal anti-smuggling law
by broadening the scope of proscribed conduct ." United
States v. Sanchez-Vargas, 878 F.3d 1163, 1169 (9th Cir.
1989)(italics added).
[F]rom its genesis as a statute prohibiting only the
bringing in of aliens, [INA S 274(a)(1)] now presents a
single comprehensive "definition" of the federal crime of
alien smuggling -- one which tracks smuggling and

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related activities from their earliest manifestations
(inducing illegal entry and bringing in aliens) to
continued operation and presence within the United
States (transporting and harboring or concealing aliens).
Id. (italics added).8
_________________________________________________________________
8. Finally, we think it obvious that even the nontechnical offense of
"harboring an alien" does relate to alien smuggling. Harboring an alien
requires, as one of its elements, that an offender know or have reckless
disregard of the fact that "an alien has come to, entered, or remains in
the United States in violation of law." Therefore, the offender must know
or recklessly ignore the possibility of the alien’s illegal presence here.
Consequently, with the possible exception of an alien in this country on
an expired visa, harboring an alien "relates to alien smuggling" in some
way. See Galindo-Gallegos, 244 F.3d at 733-734.
14
III. CONCLUSION
In sum, we find that the parenthetical "relates to alien
smuggling" in INA S 101(a)(43)(N) is descriptive of all of the
offenses contained in INA S 274(a)(1)(A), including the
offense of harboring an alien in violation of INA
S 274(a)(1)(A)(iii). Therefore, Patel’s conviction for harboring
an alien meets the definition of an aggravated felony under
INA S 101(a)(43)(N). Consequently, we must dismiss his
petition for review because we lack jurisdiction under INA
S 242(a)(2)(C), 8 U.S.C. S 1252(a)(2)(C).9
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
9. Patel makes two additional, yet related, arguments that require little
discussion. First, he claims that a construction of the parenthetical as
descriptive rather than limiting "is significantly different from the plain
meaning of the language [of S 101(a)(43)(N)], fail[ing] to give aliens
sufficiently clear notice as to what behavior would subject them to the
draconian effects of classification as an aggravated felon." Patel’s Br. at
11. However, reading the parenthetical as descriptive is not significantly
different from the plain language of the statute. On the contrary, as we
have explained above, that is the only way to read it. Second, Patel
suggests, albeit without using the term, that the rule of lenity should
apply and, therefore, his conviction should not be determined to be an
aggravated felony. The function of the rule of lenity is to protect people
"from the unfair application of ambiguous punitive statutes." United
States v. Thompson/Center Arms Co., 504 U.S. 505, 525 (1992)(Stevens,
J., dissenting). The rule only applies if there is a"grievous ambiguity or
uncertainty in the statute." Muscarello v. United States, 524 U.S. 125,
138 (1998). INA S 101(a)(43)(N) is not ambiguous or uncertain, let alone
grievously so. Thus, we summarily reject these arguments.

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