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Several years ago, Juan came to my office.[1]  His mother, Marta, entered the United States in July of 2000 after she fled Mexico with Juan and his younger sister, Lidia.  Marta endured over a decade of physical, emotional, and sexual abuse in Mexico at the hands of her former domestic partner, Ramon, whom she met when she was only fourteen-years-old.  Marta called the police several times to report Ramon’s abuse, but police officers refused to intervene in a “family problem.”  Marta managed to leave Ramon and take her four children to her father’s house, but Ramon stalked Marta at home and at work, threatening multiple times to kill her.  Marta decided to leave Mexico for the United States in hopes of escaping Ramon and financially supporting her children.  Marta paid a guide to transport her and her children across the border into California.  The family made their way to Maryland, where Marta found work at a restaurant.  There, she met Carlos, a soft-spoken cook from El Salvador and they became close friends.  Their friendship blossomed into a romantic relationship and they soon married.

Carlos helped Marta raise Lidia and Juan, and the couple welcomed a little girl, Sofia, in 2003.  Carlos, a Lawful Permanent Resident, filed a petition for Marta in 2007.  After an immigrant visa became available in 2012, Marta traveled with Sofia to Mexico for what she thought would be a quick interview at the U.S. Consulate in Ciudad Juarez.  The notary who prepared Marta’s immigrant visa application told Marta she would be able to return to the United States as a Lawful Permanent Resident soon after her interview. However, at Marta’s interview, the consular officer informed Marta that she was inadmissible and he could not grant her visa application.  First, Marta had a ten-year bar to returning to the United States because she collected more than one year of unlawful presence in the United States.  Second, the consular officer told Marta she was permanently inadmissible to the United States because she was an alien smuggler.  This finding meant that, absent a waiver of her inadmissibility, Marta could not return to the United States lawfully.

Marta, a hard working mother who brought her children to the United States in an effort to protect them, does not fit the image conjured up by the term “alien smuggler.” We tend to think of alien smugglers as “human traffickers,” “coyotes,” or “guides” who bring groups of people across the U.S. border for monetary compensation.  However, the Immigration and Nationality Act (INA), has a much broader definition.  INA § 212(a)(6)(E)(i) states that an individual is inadmissible to the United States as an alien smuggler if he/she, at any time, “knowingly encouraged, assisted, abetted, or aided any other alien to enter or try to enter the United States in violation of the law….”[2] Courts interpreting this provision have generally found that this provision requires a knowing, affirmative act on the part of the so-called smuggler and/or knowing participation in a scheme to bring an individual to the United States unlawfully.  This can include physically bringing a family member or child across the border, arranging a friend’s passage from his/her home country to the United States, sending an individual money to pay for a guide or coyote, helping an individual obtain false documents to present at the border, or even filing a fraudulent petition on behalf of a family member.   These actions do not have to be undertaken with the promise of compensation.

However, it’s important to remember that actions must be “knowing,” meaning that an individual must know that he/she is assisting another person enter the United States unlawfully, in order for them to trigger the smuggling inadmissibility ground.  A woman living in the United States who gives her father money to buy her family food and necessities is not an alien smuggler if her father later uses the money to pay a guide to bring him to the United States.  She did not have knowledge at the time she sent the money that it would be used to help her father come to the United States unlawfully.  Therefore, she did not have the “knowledge” required to make her inadmissible under INA § 212(a)(6)(E)(i) as a smuggler.

So, what does this mean for Marta and others like her?  Individuals who are applying for Lawful Permanent Residency based on a family petition are inadmissible unless they apply for and receive a waiver under INA § 212(d)(11).  This waiver is wholly discretionary and granted to insure family unity or for humanitarian and public interest reasons.  It is only available to individuals who assisted their parents, spouses, sons, or daughters enter the United States unlawfully.  For example, an individual who helped his sibling enter the United States unlawfully is not eligible for this waiver.  This inadmissibility ground can also be waived for U-Visa and SIJS applicants.  However, an individual who took action to aid someone in coming to the United States unlawfully cannot prove he/she has good moral character during the period he/she took these actions.  Therefore, he/she is not eligible for Cancellation of Removal for Non-Permanent Residents, relief under NACARA, or naturalization.

Many individuals who are subject to the alien smuggling inadmissibility ground took the steps they did to help a loved one fleeing domestic abuse, gang violence, death threats, or extreme poverty.  However, as we saw in Marta’s case, our immigration law does not make exceptions for smuggling actions taken for good or understandable reasons.  Therefore, we regularly advise our clients who are currently eligible for relief or may be eligible for relief in the future about the consequences of helping loved ones and friends come to the United States unlawfully.  But, there is hope for individuals, like Marta, who are found inadmissible for smuggling.

Marta and her family worked diligently to help me prepare a thorough waiver application of the smuggling and unlawful presence inadmissibility grounds.  After a six-month adjudication period, which caused Marta and her family a great deal of stress and anxiety, the waiver was granted.  Marta is now living in the United States as a Lawful Permanent Resident with her husband, Carlos, and her children.  Marta’s case, despite its happy ending, is a good reminder that good intentions and even life-saving actions can have devastating and permanent immigration consequences.

 

[1] Client names and their family members have been changed.

[2] This provision does not apply in certain limited circumstances when an individual who is accused of alien smuggling was present in the United States on May 5, 1988, and participated the smuggling of their spouse, parent, son, or daughter before May 5, 1988.