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Child Smuggling, What Is It, and How Does It Affect Your Immigration Status?

Child Smuggling, What Is It, and How Does It Affect Your Immigration Status?

Child Smuggling

To understand the effects of alien child smuggling, it is crucial to first understand the implications of alien smuggling in general. Based on the United States Sentencing Commission, for the year of 2019, there were approximately 3,487 offenders convicted of alien smuggling. This accounted for 13.1% of all immigration offenders sentenced under the rules. In 15.5% of alien smuggling cases, a person smuggled an unaccompanied minor.[1]

Although alien smuggling has always been a major concern for those seeking citizenship, it has become an even greater concern with President Trump’s direction to DHS to take action against parents, family members, and any other individual who directly or indirectly facilitate the smuggling or trafficking of unaccompanied minors into the United States.[2]

Alien smuggling and alien child smuggling can have serious and permanent consequences, so it is important to learn what it is and the various ways it can impact your immigration status.

Defining Alien Smuggling

According to the Immigration Nationality Act (INA), an alien smugger is any person who helps anyone in any way enter the United States unlawfully.[3] This definition of the law has been interpreted broadly. For example, courts have found that sending money to someone to pay a smuggler or even simply encouraging someone to enter the United States illegally can constitute alien smuggling.[4] A good example of this can be found in the case of Hernandez-Guadarrama v. Ashcroft where the court found that smuggling includes knowingly participating in a prearranged plan to bring people to the border and then meeting them on the U.S. side of the border to transport them in the United States. In addition, alien smuggling does not only cover professional smugglers as it applies to individuals who bring in their family members as well.[5]

But there are limitations to this broad provision. In order to qualify as an alien smuggler, the person must have made:

  1. An affirmative AND
  2. Knowing act

This means you must know that you are helping someone enter illegally, and if you did not know that the other person did not have legal status to enter, then you have not participated in alien smuggling.[6] A prime example of what does not qualify as alien smuggling can be shown in the case of In Altamirano v. Gonzales, here, the Court found that an individual was not inadmissible to the United States just because she knew that someone was hiding in the trunk of the car she was riding in but where she made no direct act to help.[7]

How Can it Affect Your Immigration Status?

Grounds of Inadmissibility

Alien smuggling can impact your immigration status on a number of levels. First, it is a grounds of inadmissibility. Grounds of inadmissibility are a list of reasons in INA § 212(a) in which an alien can be refused admission to or removed from the United States. Noncitizens who in any capacity and at any time assist other noncitizens illegally into the United States are

inadmissible.

However, there are waivers to grounds of inadmissibility. The first one is a limited alien smuggling inadmissibility waiver that consists of two requirements:

  1. The person applying for the waiver must either be:
    1. A lawful permanent resident who temporarily traveled abroad voluntarily (not under an order of deportation or removal), and is otherwise admissible; OR
    2. A person applying for a green card based on a family-based petition (including immediate relatives or through a first, second, or third preference visa petition—but not through a fourth preference visa petition for brothers and sisters of U.S. citizens). AND
  2. The person must have smuggled only her spouse, parent, son, or daughter (and no other individual).[8]

After meeting the basic requirements, you must then persuade the adjudicator to grant the waiver based on one or more of the following grounds:

  • For “humanitarian purposes,”
  • To “assure family unity” or
  • When it is “otherwise in the public interest.”[9]

Although the alien smuggling inadmissibility waiver is quite limited, there are other forms of relief. Some forms of humanitarian relief have general waivers that can apply to alien smuggling, such as:

  • U nonimmigrant status, under INA § 212(d)(14);
  • T nonimmigrant status, under INA § 212(d)(13);
  • Special immigrant juveniles seeking adjustment of status, under INA § 245(h); AND
  • Asylees and refugees seeking adjustment of status, under INA § 209(c).[10]

Lastly, there is an exemption to the grounds of inadmissibility as well. A person is automatically exempt from the alien smuggling ground of inadmissibility if he or she is eligible for the “Family Unity” program. The Family Unit program allows admission of spouses and children of people granted legalization, or “amnesty,” under the Immigration Reform and Control Act of 1986. However, it only applies if the person smuggled a spouse, parent, son or daughter before May 5, 1988. Under INA § 212(a)(6)(E)(ii), an individual who qualifies for this exemption is automatically not inadmissible.[11]

Grounds of Deportability

Second, alien smuggling is a grounds of deportability. Grounds of deportability are a list of reasons in INA § 237(a) in which an alien who has been admitted, can be removed from the United States. Grounds of deportability are arguably more lenient than grounds of inadmissibility. This rule applies to individuals who commit alien smuggling despite their conviction status if it occurred at the time of any entry, prior to any entry, or within five years after any entry. Based on the INA, the word “entry” is defined as coming into the United States whether it is legally or illegally, with or without inspection and authorization by an immigration officer.[12]

Just like grounds of inadmissibility, there are exceptions and exemptions to grounds of deportability. In order to qualify for this waiver, the lawful permanent resident must have only:

  • smuggled his or her parent, spouse, son or daughter AND no other individual,
  • and that person must have had that family status at the time the smuggling occurred.

Additionally, under INA § 237(a)(1)(E)(ii), the same exemption applies for noncitizens eligible for Family Unity with regards to deportability as to inadmissibility.[13]

Bar to Good Character

Third, under INA § 101(f), alien smuggling is a bar to good moral character. Good moral character is a requirement for naturalization, non-lawful permanent resident cancellation of removal, self-petitioning and cancellation of removal under the Violence Against Women Act (VAWA), registry, and one of the methods of voluntary departure. [14]

Alien smuggling also constitutes an aggravated felony. An aggravated felony is a ground of deportability, a bar to a number of forms of relief, and a permanent bar to good moral character if the conviction occurred on or after November 29, 1990.[15]

Provisional Unlawful Presence Waiver

Under the provisional unlawful presence waiver, some immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can apply for the waiver before they leave the United States for their consular interview. After August 29, 2016, this waiver process was extended to all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United States.

To be eligible for a provisional unlawful presence waiver, you must meet all of the following requirements:

  • Be physically present in the United States to file your application and provide biometrics.
  • Be at least 17 years of age or older.
  • Be in the process of obtaining your immigrant visa and have an immigrant visa case pending with Department of State (DOS) because you:
    • Are the principal beneficiary of an approved Form I-130, Petition for Alien Relative; an approved Form I-140, Petition for Alien Worker; or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant who has paid the immigrant visa processing fee;
    • Have been selected by DOS to participate in the Diversity Visa (DV) Program (that is, you are a DV Program selectee);
    • Are the spouse or child of a principal beneficiary of an approved immigrant visa petition who has paid the immigrant visa processing fee to DOS; or
    • Are the spouse or child of a DV Program selectee (that is, you are a DV Program derivative)
  • Be able to show that refusal of your admission to the United States would cause extreme hardship to your U.S. citizen or Legal Permanent Resident spouse or parent.
  • Believe you are or will be inadmissible only because of a period of unlawful presence in the United States that was:
    • More than 180 days, but less than 1 year, during a single stay (INA section 212(a)(9)(B)(i)(I)); or
    • 1 year or more during a single stay (INA section 212(a)(9)(B)(i)(II)).
Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.
 

[1] United States Sentencing Commission, Alien Smuggling (April 2020), https://www.ussc.gov/research/quick-facts/alien-smuggling.

[2] Donald J. Trump, Exec. Order No. 13767, Border Security and Immigration Enforcement Improvements (Jan. 25, 2017).

[3] 2 INA § 212(a)(6)(E)(i); INA § 237(a)(1)(E)(i).

[4] Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005).

[5] Id.

[6] 9 FAM 302.9-7(B)(3).

[7] 427 F.3d 586, 591-96 (9th Cir. 2005).

[8] INA § 212(d)(11).

[9] Id.

[10] Id.

[11] INA § 212(a)(6)(E)(ii).

[12] INA § 237(a).

[13] INA § 237(a)(1)(E)(ii).

[14] INA § 101(f),

[15] INA § 274(a)(1)(A).

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