By Amanda Kwong and Nancy Miller
The phrase “alien smuggling” often conjures images that Hollywood has dramatized. Movies depict unsavory people paid to sneak people into the country, as well as armed henchmen playing cards and hired to play a part in a major international human trafficking ring. Recently, a truck driver in Texas was caught transporting at least 100 undocumented Mexican nationals in the back of his tractor-trailer. Sadly, ten died, and about 30 were hospitalized for heat stroke and dehydration. What many people do not realize, however, is that alien smuggling can be charged against those who travel with family members who are entering the country unlawfully. It can also charge those who pay and arrange for the smuggler to help people enter the U.S. illegally, regardless of whether the smuggler was physically present at the time of planning the entry. There is no requirement of monetary exchange or ill-intention before the individual is charged.
On February 20, 2017, an executive memo was released directing the Department of Homeland Security (DHS) to take action against parents, family members, and others who have directly or indirectly facilitated the illegal smuggling or trafficking of an alien child into the US. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) officers may ask questions about undocumented family members or travel companions, and find that a person is a smuggler even if the person does not admit to it. ICE has confirmed that it has begun to target individuals in the US who may have paid to smuggle family members into the US.
The definition of alien smuggling for immigration purposes is broad. It includes any person who has knowingly encouraged, induced, assisted, abetted, or aided any other person to enter, or try to enter, the U.S. illegally. Case law explains that the person must have knowingly and affirmatively acted in order for the conduct to constitute alien smuggling. The key is that the assistance must have been given knowingly that the person was entering unlawfully. For example, if money remittances were sent to help with finances, and a portion was saved by the recipient who then used that money to pay to enter into the country illegal, there may be no alien smuggling if there was no knowledge. Depending on the facts of the case, there is a thin line between being charged with alien smuggling and fraud—which could open the door to different problems and potential avenues of relief.
Once found to be an alien smuggler, the individual is not only inadmissible, or alternately deportable, from the United States, but she can also be barred from certain forms of relief that require good moral character for the statutory period required. Good moral character is a requirement to apply for citizenship, self-petitioning and cancellation under the Violence Against Women Act, and cancellation of removal for non-permanent residents before an immigration judge. Additionally, a smuggler can be charged criminally for that offense and, if convicted, will be an aggravated felon and subject to removal from the United States.
Clearly, the consequences of alien smuggling are serious. Nevertheless, there may be hope for relief through a discretionary waiver. The waiver for inadmissibility requires that the person be either a lawful permanent resident who temporarily and voluntarily traveled outside of the US, and is otherwise admissible, or someone who is applying for permanent residence based on certain family-based petitions. The person must also have smuggled only her spouse, parent, son, or daughter. Additionally, the person must show that the waiver is warranted for humanitarian purposes, for family unity, or for reasons that are otherwise in the public interest. Other waivers available for alien smuggling are the general waivers for those who are applying for U or T nonimmigrant status, as well as for special immigrant juveniles, aslyees, and refugees applying for adjustment of status.
The rules differ if the person is charged under deportation grounds. The person is deportable if she committed alien smuggling before, during, or within five years of any entry into the United States. There is defense to this charge if the person engaged in the conduct over five years after her last entry. Similarly, if charged under this ground, the person may request the discretionary waiver if the smuggling was only of her parent, spouse, son, or daughter, who had that family status at the time of the smuggling. Alien smuggling is extremely complex area of law; the ramifications of being charged can be devastating. Additionally, each fact changes the possible outcome of the case. Therefore, anyone who believes she may be subject to this charge should consult a knowledgeable and experienced immigration lawyer as soon as possible.
