Can I apply for asylum if I paid a smuggler to help my child cross the U.S. border?

Involvement in alien smuggling can bar asylum eligibility, but the key will be whether you were involved in the person's actual border crossing.

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Question

I am a citizen of El Salvador who has lived in the United States unlawfully for more than 20 years. Actually, I’ve gone in and out of the U.S. a bit -- my most recent entry was a few months ago. While visiting my wife in my country I was beaten by gangs who knew I lived in the United States. I now want to apply for asylum. However, I’m worried about one issue. My son joined me in the United States three years ago. I only learned about his journey North after receiving a phone call from a coyote (smuggler) asking for money. They were in Texas when they called and I wired money. Can I get asylum in the United States, or will my role in bringing my son here be a problem?

Answer

You are right to be concerned, because a conviction for alien smuggling is considered an aggravated felony under U.S. immigration law (unless the person helped a spouse, child, or parent). (See I.N.A. Section 101(a)(43)(N).) A person convicted of an aggravated felony is typically barred from asylum, because aggravated felonies are considered particularly serious crimes. (See I.N.A. Section 208(b)(2)(B)(i).)

Since you, however, appear not to have been actually convicted of any crime -- given that you didn’t mention having been caught or tried in court, nor having entered a guilty plea – you should not have any trouble with this particular section of the law.

But the asylum officer who handles your asylum case can still look at whether you have committed a crime, and if so, whether it is what’s called a crime involving moral turpitude (CIMT). If the officer decides that your role in assisting your child with an unlawful border crossing constitutes a CIMT, you can be denied asylum in the discretion of the officer (regardless of the fact that you weren’t actually convicted).

In order for your role in this situation to be considered the crime of alien smuggling, you would have to have known that your son was being brought into the United States. Alien smuggling involves actually crossing the border. Therefore, it will be important to point out that you did not “assist, abet, or aid” any alien unlawfully crossing the border. (See 8 U.S.C. Section 1324(a).)

You apparently did not hire the coyote to bring your child to the United States, nor were aware of the plan before he arrived within this nation’s borders. Explain to the asylum officer that the first contact you had with the smugglers took place inside the United States and that you had nothing to do with the border crossing itself.

Consider consulting with an attorney experienced in immigration law so that you can properly explain why the asylum officer should not consider your experience to be a CIMT. Presented in the correct way, the officer should not regard your efforts on your son’s behalf as a negative factor in your asylum case.

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