When a person from another country finally secures U.S. citizenship, one of the first thoughts to cross their mind is to have that family member, relative, or friend back in their country of origin join them. However, apart from the fact that there are limited visa categories that allow people to immigrate to the United States, processing the visa itself can take many years of waiting.
Consequently, many people may be tempted to find means to cheat the United States immigration system and have their loved one cross the United States border illegally and in secret. However, before crossing someone or agreeing to help, you want to stop first and think about the consequences of your actions.
In most cases, assisting a loved one to enter the United States unlawfully is a criminal offense known as alien smuggling. Like any other immigration law-related crime, a conviction will subject you to harsher immigration consequences, including deportation and inadmissibility. If you have been accused of alien smuggling, you want to seek legal assistance immediately.
What Alien Smuggling Means
When the term alien smuggling comes up, most people envision a coyote escorting someone across the U.S. border in the dead of night. Of course, that sometimes happens, but per federal law, alien smuggling is much more than that. You commit the alien smuggling offense when you knowingly encourage, induce, help, aid, or abet someone else to cross or attempt to cross the border and enter the U.S. unlawfully. A financial motive need not be proven to be guilty of alien smuggling.
It is particularly essential to know you may be convicted of alien smuggling whether or not you physically do the smuggling act. Merely furnishing a person with the required tools for unlawful United States entry, like false documents or money, also suffices and can equally subject you to consequences.
Apart from coyotes, the following are examples of instances considered alien smuggling:
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A parent applying for a visitor visa for their child but secretly plans on enrolling the minor in a United States school after arrival could be considered an alien smuggler.
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A visa consultant counseling their clients to consciously lie on visa applications or furnishing them with false documentation to assist them in obtaining visas
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If, as a tour organizer, you deliberately add an outsider to a group. That is, let us say someone is seeking a visa as a baseball team member but, in the real sense, does not have anything with that team. When you knowingly try to facilitate visa issuance to that person, you could face alien smuggling charges.
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Funding an illegal alien's trip to the U.S. can be considered consciously committing alien smuggling.
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A person lying that a visa applicant is their son or daughter. Here, the immigration officer can demand a DNA test to establish maternity or paternity.
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Illegally aiding an alien to cross the border into the U.S.
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A person is lying about their dependent applicant's marital status or age. For immigration reasons, someone under 21 years old and unmarried is deemed dependent. Therefore, a parent who deliberately lies that their child is under 21 years old or that the minor is unmarried when they are married can face alien smuggling charges. When an immigration officer has these suspicions, they could demand a bone density test to assist them in determining a child's age. Alternatively, they may check with the civil registry to establish whether or not the child is married.
The federal statutes on alien smuggling are broad, and the maximum federal prison sentence can be severe. Four different but related types of alien smuggling activities exist under 8 U.S. Code 1324. These are:
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Smuggling or assisting in any other way an alien in entering the United States from a location outside the United States
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Aiding or abetting alien smuggling or conspiring to smuggle an alien into the country.
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Concealing, shielding, or harboring an alien already in the U.S.
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Unlawful transporting an illegal immigrant internally within the United States
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Inducing or encouraging an alien to cross the U.S. border or live in the United States, conscious of or disregarding the fact that it would violate immigration laws.
The alien smuggling crime is among the most prevalent immigration-related crimes in California. Due to their proximity to the border, some parts of California, like Imperial and San Diego counties, are considered hotspots for illegal migration. Alien smugglers are frequently also engaged in money laundering, drug trafficking, migrant labor exploitation, and weapons trafficking. This has made different federal agencies take a harsh stance on smuggling aliens.
The FBI, ICE (Immigration and Customs Enforcement), Department of Homeland Security, United States Customs, Immigration and Naturalization Service, Department of State, the U.S. Marshals Service, and Transportation Security Administration have all joined forces with local police agencies and California Border Patrol to combat smuggling rings.
These agencies are actively searching for people engaged in the smuggling of aliens. Additionally, the federal authorities are also proving and prosecuting companies that retain illegal aliens. Business owners who were aware or should reasonably have been aware they employed undocumented illegal immigrants can face charges under federal immigration laws.
Alien Smuggling Penalties
The criminal consequences of smuggling an alien hinge on the unique facts of every case. If found guilty of the offense under federal law, the minimum prison sentence is five years, while the maximum is twenty years. Most convictions of alien smuggling are deemed aggravated felonies except if it was a first-time violation and it entailed transporting the accused person's parents, children, or spouse.
Various factors can aggravate the crime of alien smuggling, including:
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The reason for alien smuggling, for example, prostitution, financial gain, or sex trafficking
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Whether weapons were involved
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Whether the aliens suffered death, injury, or risks of injury
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The number of illegal aliens involved
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Whether the alien that was smuggled is an aggravated felon, that is, they have previously faced violent or serious felony convictions.
The means of illegally transporting aliens throughout or into the country are usually dangerous. It is prevalent for aliens to be exposed to unsafe conditions while being carried in boats, aircraft, cars, and trucks. Should an undocumented individual suffer severe injury during smuggling, the people responsible may be subject to a maximum of twenty years in federal prison.
A prevalent example experienced is illegal aliens being smuggled in trunks of vehicles without any safety restraint or capability to set themselves free. Should an alien smuggling result in demise, the defendant could be subject to life imprisonment. Unluckily, people die trying to cross into the U.S. via remote desert regions of the Mexico-United States border in the hot months of summer and run out of essential supplies like water. Aliens have also drowned in botched maritime operations trying to flee law enforcement capture.
Inadmissibility or Deportation for Smuggling an Alien
Helping someone to cross the U.S. border illegally can impact your immigration status in various ways:
If you are a lawful permanent resident (LPR), also called a green card holder, or a visa holder on the side of the U.S. border, you can face deportation proceedings in immigration court for smuggling an alien, even if the prosecution does not file criminal charges and there is no conviction. Also, you can be deported even if you have the right to be in the U.S.
You can be categorized as inadmissible if you are on the opposite side of the U.S. border. That means you cannot receive or apply for a United States green card or other United States visas, whether or not you qualify.
What if you have applied for United States citizenship and are found guilty of alien smuggling? Among the primary conditions for a green card holder to neutralize and change to being a United States citizen is having good moral character. You may not be naturalized into the United States if you cannot demonstrate good moral conduct. You can never be considered of good moral conduct for seeking naturalization if you have been found guilty of smuggling aliens any period after Nov. 29th, 1990, and your crime was an aggravated felony. Thus, you will be permanently barred from becoming a United States citizen.
Even if you have not been found guilty of smuggling aliens, you can be permanently barred from becoming a U.S. citizen by naturalization after assisting or encouraging someone to cross the U.S. border. To qualify for becoming a United States citizen by naturalization, you must demonstrate good moral conduct for the previous five years before your application (or thirty-six months if you have applied early due to an exception that is highly likely marital union to a United States citizen).
An immigration consultant may conclude that you do not satisfy the condition for having good moral conduct if they discover you assisted or encouraged someone to cross the U.S. border during that three- or five-year period. Thus, they cannot grant your naturalization request.
What if you are not documented in the U.S.? If you are an undocumented immigrant in the U.S., you are already exposed to the risk of being deported. However, with an alien smuggling record, you would be giving the United States immigration authorities more reason to remove you and lowering your odds of being eligible for other immigration remedies.
It is worth repeating that no actual conviction is required for deportation to occur. Should the presiding immigration judge determine, based on facts, that you assisted or encouraged another person to cross into the country illegally, they may order your deportation.
Alien Smuggling Waivers When Seeking a Green Card or Immigration Relief
If you are found criminally liable for smuggling an alien, you may qualify for cancellation of deportation or an inadmissibility waiver. However, there are three requirements you must meet. The first condition entails proving you hold a green card or seek a fiance or family-based immigrant visa. This condition qualifies you for a waiver of inadmissibility.
You must also prove that the person you smuggled across the border into the U.S. was your immediate relative, meaning they were your child, parent, or spouse. Note that immigration will not bar you from applying for a waiver if you divorced your spouse after smuggling them into the U.S.
The last requirement is to prove that you deserve the waiver for humanitarian reasons, compelling reasons based on public interest, or reasons of family unity.
The Ninth Circuit court, handling cases in Washington, California, Alaska, Idaho, Montana, Arizona, Nevada, and California, has ruled that a person may not seek the waiver during a removal hearing to reach the good moral conduct bar. That means that if you have assisted or encouraged a person to cross the U.S. border illegally and your case is heard in the Ninth Circuit, you will not qualify for cancellation of deportation, a legal defense against removal.
You Can Defend Against Alien Smuggling Charges and Avoid Deportation
When charged with alien smuggling, you want to hire a federal attorney knowledgeable in criminal and immigration laws who can build a compelling defense strategy depending on the case facts. That is because alien smuggling is a severe crime, and the consequences are grave and life-altering. An experienced counsel should have different tools they could employ to help beat the charges against you. Possible defenses they can argue include the following:
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Duress or coercion: arguing that you were forced or coerced into smuggling a person or people against your will.
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Inadequate evidence: Your lawyer can help you poke holes into the prosecutor's arguments and evidence, highlighting any inconsistencies or weaknesses in their case
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Constitutional violations: contesting the lawful nature of the arrest, search, or seizure and pointing out that the police violated your Fourth Amendment rights is a good defense.
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Lack of intention: Arguing that you never had the intent to transport anyone illegally and did not consciously participate in the smuggling activities can help you avoid the severe consequences of this crime.
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Lack of knowledge: This defense entails showing that you did not know about the immigration status of the person you helped or the unlawful nature of their transportation.
Your attorney may also argue official restraint (a legal defense prevalently applied in unlawful reentry or entry cases per U.S.C. Section 1326) if you are accused of smuggling for prostitution purposes or smuggling as an aggravated felony. The religious organizations exception (religious organizations are exempt from charges under particular circumstances) and entirely extraterritorial actions are also the defenses your lawyer can apply.
These are only a few examples of possible defenses to alien smuggling charges, and the winning strategy will be based on the unique facts of every case. You want to work with an experienced federal criminal lawyer to assess the best approach for your defense. A skilled attorney can also submit evidence to mitigate the likely sentence to be imposed and avoid the mandatory minimum.
Most prosecutors and federal judges are highly knowledgeable and experienced in prosecuting alien smuggling charges. Your attorney should be equally experienced and have the professional capabilities and resources to battle a federal case.
It is essential to have counsel present during any communication with prosecutors or other government authorities regarding your probationary investigation.
Related Crimes that Can Also Lead to Deportation or Inadmissibility
Illegally smuggling aliens into the U.S. is a money-making venture. The desperation that results in migrants risking their lives to try and enter the United States makes them vulnerable to exploitation. Individuals who are illegally transported across the border are usually mandated to participate in unlawful activities to pay the debt they owe to their smugglers and start a new life. Offenses that are frequently associated with alien smuggling are:
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Fraudulent marriage intending to obtain naturalization.
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Weapons trafficking—unlawfully smuggling weapons, ammunition, or munitions
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Drug trafficking: smuggling illegal drugs between border barriers and ports of entry.
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Money laundering—concealing or otherwise obscuring the unlawful income source
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Human trafficking—trafficking and exploring people for personal or financial gain.
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Immigration fraud—this involves forging, altering, or falsifying immigration documents.
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Kidnapping and kidnapping for ransom—Illegal aliens who are successfully transported across the United States border might be held against their will until they pay their smuggling fees.
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Trafficking and exploiting people for personal or financial gain
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Failure to pay taxes on unlawfully earned income
Contact a Skilled Immigration Attorney Near Me
Alien smuggling is among the most prevalent immigration crimes prosecuted in California. If you have been informed of a deportation hearing or are outside of the U.S. and inadmissible due to alien smuggling, you will need quality, effective legal assistance in securing an inadmissibility waiver or cancellation of deportation as an outcome of your alien smuggling.
We at California Immigration Attorney can help. We have helped clients throughout California address their immigration-related problems and will do the same for you. Call us at 424-789-8809 for a complimentary consultation and case evaluation regarding alien smuggling problems that are about to affect your immigration status or efforts to enter the United States. We still wish for more honest and hardworking immigrants to become American citizens.