Criminal Defense of Immigrants


§ 17.29 (H)

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(H)  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.[212]  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.[213]  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.[214]  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.[215]


[212] 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).

[213] IIRAIRA § 351(a), (b), 110 Stat. 3009, 3009-640 (amending INA § § 212(d)(11), 237(a)(1)(E)(iii), 8 U.S.C. § § 1182(d)(11), 1227(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).

[214] IIRAIRA § 351(c).

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



Fifth Circuit

Santos-Sanchez v. Holder, 744 F.3d 391 (5th Cir. Mar. 7, 2014) (federal conviction for aiding and abetting improper entry into the U.S., in violation of 8 U.S.C. 1325(a), established deportability under INA 237(a)(1)(E)(i), 8 U.S.C. 1227(a)(1)(E)(i), and conviction documents are sufficient to establish substantial evidence to support the BIA determination of deportability).