(A)  Alien Smuggling.  A person is inadmissible if s/he “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.”[204]  This ground does not apply where the person did not engage in an “affirmative and illicit act” of aiding unlawful entry into the United States.[205]

 

An automatic exemption is available for persons who are the relatives of legalized noncitizens and are applying for Family Unity or immigration through a family visa petition.[206]  A waiver is also available to certain persons provided they assisted only their spouse, parent, or child, and no other person.[207]

 

The conduct covered under this ground of inadmissibility may also be considered a crime of moral turpitude,[208] an aggravated felony[209] and trigger other grounds of deportability.[210]

[204] INA § 212(a)(6)(E), 8 U.S.C. § 1182(a)(6)(E).

[205] See Tapucu v. Gonzalez, 399 F.3d 736 (6th Cir. 2005); Altamirano v. Gonzalez, 427 F.3d 586 (9th Cir. 2005).

[206] INA § 212(a)(6)(E)(ii), 8 U.S.C. § 1182(a)(6)(E)(ii).

[207] INA § 212(d)(11), 8 U.S.C. § 1182(d)(11).

[208] See, e.g., United States v. Raghunandan, 587 F.Supp. 423 (D.N.Y. 1984) (where wilfulness and knowledge are elements).  But see Matter of Tiwari, 19 I. & N. Dec. 875 (BIA 1989) (conviction of a regulatory offense under INA § 274(a), 8 U.S.C. § 1324(a), of bringing in and transporting noncitizens, without a showing of “gain,” is not a crime of moral turpitude under INA § 241(a)(4)(A), 8 U.S.C. § 1231(a)(4)(A), as fraud is not an essential element of § 274(a) and the amended version of § 274(a) resembles a strict liability statute, not requiring a showing of “fraud or an evil intent”).

[209] INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N).  See § § 19.24-19.26, infra.

[210] INA § 237(a)(1)(E)(i), 8 U.S.C. § 1227(a)(1)(E)(i).  See § 17.29, supra.

Fifth Circuit

INADMISSIBILITY - ALIEN SMUGGLING - AIDING ANOTHER TO ENTER ILLEGALLY
Soriano v. Gonzales, 414 F.3d 318 (5th Cir. Apr. 5, 2007) (any noncitizen seeking admission to the U.S. who participates in a scheme to aid other aliens in an illegal entry is inadmissible under INA 212(a)(6)(E)(i), regardless of whether the assisting individual was present at the border crossing).

Ninth Circuit

INADMISSIBILITY - ALIEN SMUGGLING - WAIVER
Sanchez v. Holder, 560 F.3d 1028 (9th Cir. Mar. 26, 2009) (en banc) (alien smuggling inadmissibility waiver under INA 212(d)(11), 8 U.S.C. 1182(d)(11), does not prevent the act of alien smuggling to be considered a bar to a finding of good moral character).

INADMISSIBILITY - ALIEN SMUGGLING - WAIVER ALIEN SMUGGLING - GOOD MORAL CHARACTER
Sanchez v. Holder, 560 F.3d 1028 (9th Cir. Mar. 26, 2009) (en banc) (family-only alien smuggling is sufficient to demonstrate a lack of good moral character), overruling Moran v. Ashcroft, 395 F.3d 1089 (9th Cir.2005).

INADMISSIBILITY - ALIEN SMUGGLING - MERE PRESENCE AND ACQUIESCENCE IN ANOTHER'S SMUGGLING INSUFFICIENT
Aguilar-Gonzales v. Mukasey, ___ F.3d ___ (9th Cir. Jul. 29, 2008) (granting petition for review of a denial of motion to terminate removal proceedings and immigration judge's finding that noncitizen was inadmissible for assisting in smuggling undocumented minors into the U.S. because mere presence and acquiescence in another's plan to smuggle noncitizens does not constitute alien smuggling under INA 212(a)(6)(E)(i), 8 U.S.C. 1182(a)(6)(E)(i)).

ALIEN SMUGGLING - OFFENSE DOES NOT END AT BORDER BUT CONTINUES UNTIL SMUGGLER CEASES TO TRANSPORT NONCITIZEN
Covarrubias v. Gonzales, __ F.3d __ (9th Cir. May 29, 2007) (alien smuggling, as defined in 8 U.S.C. 1182(a)(6)(E)(i), does not end once the noncitizen crosses the border, but continues until the initial transporter who brings the noncitizen into the U.S. ceases to transport the person).