(C)  Waiver.  A humanitarian or public interest waiver is available to lawful permanent residents who aided only a person who at that time was the applicant’s spouse, parent or child.[1356]  IIRAIRA § 351 amended the smuggling waiver provision to specify that the family relationship must have existed at the time of the smuggling, rather than at the time of application for the waiver.[1357]  This change applies to applications filed before, on, or after September 30, 1996, if there has been no “final determination” on the application as of that date.[1358]  The waiver does not apply where brothers or other close family members — as opposed to the listed family members — have been smuggled into the United States.[1359]

[1356] INA § 237(a)(1)(E)(iii), 8 U.S.C. § 1227(a)(1)(E)(iii), as enacted by the Immigration Act of 1990, Pub. L. No. 101-649, § 602, 104 Stat. 4978, redesignated as subclause (iii) by the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), Pub. L. No. 102-232, § 307(h)(4), 105 Stat. 1733, and redesignated from INA § 241 to INA § 237 by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (enacted as Division C of Pub. L. No. 104-208, § 305(a)(2), 110 Stat. 3009, 3009-597). Compare former INA § 241(a)(13).

[1357] IIRAIRA § 351(a), (b), 110 Stat. 3009, 3009-640 (amending INA § § 212(d)(11), 237(a)(1)(E)(iii)). This provision effectively overturned Matter of Farias-Mendoza, 21 I. & N. Dec. 269 (BIA 1996). See also H.R. Conf. Rep. No. 104-828, at 228 (1996) (IIRAIRA § 351 was specifically intended to supersede the Board’s decision in Farias).

[1358] IIRAIRA § 351(c).

[1359] Perez-Oropeza v. INS, 56 F.3d 43 (9thCir. 1995) (equal protection challenge to statute rejected).

Ninth Circuit

DEPORTATION - GROUNDS - ALIEN SMUGGLING
Garcia-Quintero v. Gonzales, ___ F.3d ___, 2006 WL 2042896 (9th Cir. Jul. 24, 2006) (where government called respondent to testify against himself at removal hearing to establish conduct-based alien smuggling ground of deportation, immigration judge did not err in refusing to allow respondent's counsel to assert Fifth Amendment privilege against self-incrimination on his behalf, but requiring respondent to assert the privilege personally in response to each question, and sustained finding of deportability for admission of alien smuggling where respondent finally answered government questions without objection from respondent's counsel). http://caselaw.lp.findlaw.com/data2/circs/9th/0373930p.pdf

DEPORTATION - GROUNDS - CONDUCT-BASED GROUNDS - CONDUCT OF HEARING - TESTIMONY OF RESPONDENT
Garcia-Quintero v. Gonzales, ___ F.3d ___, 2006 WL 2042896 (9th Cir. Jul. 24, 2006) (where government called respondent to testify against himself at removal hearing to establish conduct-based alien smuggling ground of deportation, immigration judge did not err in refusing to allow respondent's counsel to assert Fifth Amendment privilege against self-incrimination on his behalf, but requiring respondent to assert the privilege personally in response to each question, and sustained finding of deportability for admission of alien smuggling where respondent finally answered government questions without objection from respondent's counsel). http://caselaw.lp.findlaw.com/data2/circs/9th/0373930p.pdf

AIDING AND ABETTING - AFFIRMITVE ACT REQUIRED
Altamirano v. Gonzales, ___ F.3d ___, 2005 WL 2839982 (9th Cir. Oct. 31, 2005) (mere presence in vehicle at port of entry does not constitute alien smuggling under INA 212(a)(6)(E)(i), 8 U.S.C. 1182(a)(6)(E)(i), even if the individual has knowledge that an alien was hiding in the trunk of the vehicle; simple knowledge encouraging, inducing, assisting, abetting, or aiding is insufficient). See also, Tapucu v. Gonzales, 399 F.3d 736, 740-42 (6th Cir. 2005) (some affirmative act required).
http://caselaw.lp.findlaw.com/data2/circs/9th/0370737p.pdf

ALIEN SMUGGLING - MERE PRESENCE IN VEHICLE AT PORT OF ENTRY NOT SMUGGLING EVEN WITH KNOWLEDGE ALIEN HIDING IN TRUNK
Altamirano v. Gonzales, ___ F.3d ___, 2005 WL 2839982 (9th Cir. Oct. 31, 2005) (mere presence in vehicle at port of entry does not constitute alien smuggling under INA 212(a)(6)(E)(i), 8 U.S.C. 1182(a)(6)(E)(i), even if the individual has knowledge that an alien was hiding in the trunk of the vehicle; simple knowledge encouraging, inducing, assisting, abetting, or aiding is insufficient). See also, Tapucu v. Gonzales, 399 F.3d 736, 740-42 (6th Cir. 2005) (some affirmative act required).
http://caselaw.lp.findlaw.com/data2/circs/9th/0370737p.pdf

ILLEGAL REENTRY - ELEMENTS - OVERT ACT -SUFFICIENCY OF INDICTMENT
Resendiz v. Ponce, ___ F.3d ___, 2005 WL 249730 (9th Cir. Oct. 11, 2005) (indictment's failure to allege any specific overt act that is a substantial step toward entry is a fatal defect in an indictment for attempted entry following deportation under 8 U.S.C. 1326, requiring dismissal).
http://caselaw.lp.findlaw.com/data2/circs/9th/0410302p.pdf