Criminal Defense of Immigrants

(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.