Many people who reside in the U.S., whether as green card holders, citizens, or unlawfully, have families in their home country who they want to have join them in the United States. But the visa categories allowing immigration to the U.S. are limited, even when some U.S. family members already have immigration status, and often involve waits of many years.
If that’s leading you to wonder whether you can find a way to send for your relatives unlawfully, one of the first questions to consider is whether doing so will hurt your own current or future immigration status.
In many cases, helping a family member to enter the U.S. unlawfully constitutes a crime called “alien smuggling.” And it’s especially important to realize that someone can be found liable for this even if they do not actually, physically smuggle their relative into the United States (as occurs when the person is, for instance, hidden in the trunk of a car). Merely providing some of the tools, such as money or false documents, can get you into serious trouble.
What Is Alien Smuggling?
Under the law, an alien smuggler is a person who encourages, assists, or aids any other individual to try to enter the United States in violation of the law. The following types of actions may be considered alien smuggling:
These are some of the most common ways that a person participates in alien smuggling, but there are many other actions that fall under the definition.
And most importantly, alien smuggling occurs even if neither the smuggler nor the person being smuggled get caught and even if they are not successful in helping the individual enter the United States. So merely sending money to someone who hires a coyote but who gets caught and turned around at the entry to a tunnel to the U.S. could be enough to create a permanent stain on your immigration record.
How Might Alien Smuggling Affect My Immigration Case?
Assisting a relative to enter the United States unlawfully, or alien smuggling, can affect your immigration status in a number of ways.
Permanent Residence: A person who is found to have encouraged or assisted another individual to try to enter the United States is inadmissible. This means that they cannot apply for and receive a U.S. green card or any other U.S. visa, even if they are otherwise eligible for it.
Citizenship: One of the main requirements for an individual to naturalize and become a U.S. citizen is “good moral character.” Someone who cannot prove good moral character may not become a U.S. citizen.
If a person is convicted of alien smuggling any time after November 29, 1990, and the conviction is considered an aggravated felony, the person can never establish good moral character for naturalization purposes. The person will receive a permanent bar to naturalization and will never be able to become a U.S. citizen.
Even if the person is not convicted of alien smuggling, he or she may still be barred from naturalizing after encouraging or assisting a relative to enter the United States. In order to become a U.S. citizen, one must show good moral character for the five years preceding the application. If the person encouraged or assisted a relative to enter the United States during that five-year period, the immigration officer may find that the applicant does not meet the requirement for good moral character and is ineligible to naturalize.
Deportation: In addition to the bars to obtaining a green card and citizenship, someone who is found to be an “alien smuggler” can also be deported. This applies to people who are undocumented as well as to those who have a visa or a green card.
An actual conviction for alien smuggling is not required in order to deport someone. If the Immigration Judge determines, based on the facts before the judge, that the person encouraged or assisted someone else, including a relative, to enter the United States unlawfully, the judge may issue a deportation order.
Is There a Waiver for Alien Smuggling?
A limited waiver is available for permanent residents, green card applicants, and applicants for an immigrant visa abroad if the applicant assisted a spouse, son, or daughter to enter the United States in violation of the law. The waiver is available to people who prove that they deserve it for humanitarian purposes, to ensure family unity, or because it is in the public interest.
This waiver does not apply if the person assisted anyone besides his or her spouse or children to enter the United States. So, for example, someone who sent money to a spouse and his brother so that they could enter the United States unlawfully will not qualify for the waiver.
The Ninth Circuit, which handles court cases in Alaska, Washington, Oregon, California, Montana, Idaho, Nevada, and Arizona, has also held that an individual may not use the waiver in deportation proceedings to overcome the good moral character bar. This means that individuals in the Ninth Circuit who have encouraged or assisted a family member to enter the United States unlawfully will not be eligible for Cancellation of Removal, a defense to deportation.