You can be barred from the US for smuggling, even if of your own child, and even if you were not paid. The Trump administration is going after ordinary immigrants with both criminal and civil smuggling charges, even if they are not connected to professional criminal smugglers. However, there is a waiver.
In 2017, the Trump administration hatched a plan to prosecute the parents and family members of children who were smuggled to the US. There are various criminal grounds under which one can be prosecuted for smuggling. See, for example, “Documents detail ICE campaign to prosecute migrant parents as smugglers”, https://theintercept.com/2019/04/29/ice-documents-prosecute-migrant-parents-smugglers/. Oddly enough, the Trump administration, in a cruel twist, has focused on individual parents and family members, and has not devoted much in the way of resources to stopping professional criminal smuggling networks. See, “Despite Trump’s tough talk about migrant smugglers, he’s undercut efforts to stop them”, https://www.propublica.org/article/trump-migrant-smugglers-border-patrol-homeland-security-undercut-efforts-to-stop-them
This article will not review the criminal charges for smuggling, we will only review the charges of inadmissibility and deportability/removability for smuggling. Many parents and other family members have been charged by ICE with smuggling, in order to deny them immigration benefits and deport them from the U.S.
The ground of inadmissibility for smuggling, Section 212(a)(6)(E) of the Immigration and Nationality Act (INA) bars from the US any foreign national “who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law”. The statute does not require any remuneration. If you help a friend or relative enter the US illegally, you may be charged with smuggling even though you did not get paid anything and received no compensation. The statute is very broad and covers ordinary people, not just professional smugglers. Notice that the statute includes smuggling “at any time”; there seems to be no time limit to how far in the past the smuggling occurred.
There is also a ground of deportability for smuggling, which does have time limits. The ground of deportability would apply to people who have already entered the U.S., as well as to permanent residents. The ground of deportability (also called removability), Section 237(a)(1)(E), states: “any alien who (prior to the date of entry, at the time of any entry, or within 5 years of the date of any entry) knowingly 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”. Again there is no element of remuneration. However, there is a time limit. If someone has been residing in the U.S. for more than five years, has not traveled, and then commits smuggling, the individual is not deportable.
The U.S. Consulates have been aggressive in questioning applicants for immigrant visas about any possible smuggling issue, particularly if they brought their children to the U.S. Unfortunately, many would-be immigrants who have previously lived in the U.S. for long periods of time, obtained an unlawful presence waiver and then traveled abroad for their interview with the US Consulate to get their immigrant visa and come back as a permanent resident are shocked to find their immigrant visas denied because of a smuggling charge.
It is enough to sustain a smuggling charge if the parent paid a smuggler, or made arrangements, to bring their child to the U.S., even though the parent himself did not actually transport the child across the border. See, for example, Ramos v. Holder, 660 F.3d 200, 203-206 (4th Cir. 2011).
However, smuggling charges have not been sustained if the applicant did not have any plan prior to the smugglee’s entry to bring the person to the US. For example, the AAO held in an unpublished decision that an applicant who picked up his brother after the brother had already entered the US. did not commit smuggling. See, In re [name redacted], 2014 Immigration Reporter LEXIS 4288 (AAO Oct. 22, 2014). The BIA has also held that where the person picks up a smugglee near the border, “the focus is on whether there was pre-arrangement”. See, In re Maria Isabel Guzman-Sanchez, A087-118-694 (BIA Oct. 23, 2013).
The good news is that there is a waiver for this ground of inadmissibility, Section 212(d)(11), which is discretionary and may be granted for “humanitarian purposes, to assure family unity, or when it is otherwise in the public interest”, in the case of a permanent resident who has traveled out of the US, and who is otherwise admissible as a returning resident. It also waives inadmissibility for foreign nationals with an immediate relative petition (through their U.S. citizen child, spouse or parent), if the smuggling was only of their spouse, parent, son or daughter.
There is a similar waiver of the ground of deportability for permanent residents, INA 237(a)(1)(E)(ii) and (iii). So, it is possible to overcome a charge of smuggling.
Copyright 2019 © Heidi J Meyers, all rights reserved.