Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

I can Alien Smuggle and not get deported? Question: I helped somebody get across the border of the U.S., and it was not done in a legal matter. I am now in removal proceedings and they are trying to deport me. Do I have any way of staying here in the U.S.? Answer: First, what you did would be known as alien smuggling. It is when you encouraged, induced, assisted, abetted, or aided an individual who to enter the United States in violation of the law. There are waivers available for this, but it is limited and only in certain circumstances. Who did you smuggle into the U.S.? Question: It was my husband. Can you help? Answer: Yes, there is a Waiver available here. The waiver is only available to residents who have the Green Card, and only when you have encouraged, induced, assisted, abetted, or aided an individual who, at the time of the offense, was your spouse, parent, son, or daughter to enter the United States in violation of the law. The waiver does not apply if the individual assisted anyone else. Question: What do I need to do to apply for the Waiver? Answer: The Attorney General may grant the waiver for humanitarian purposes, to ensure family unity, or when otherwise in the public interest. Immigration judges have authority to grant the waiver in removal proceedings. There is no particular form required to make application. You must establish that you meet the statutory requirements and demonstrate how granting the waiver would serve a humanitarian or public interest purpose or promote family unity. Question: What if I was not married at the time that I smuggled my husband into the U.S.? Answer: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 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. The change applies to applications filed before, on, or after September 30, 1996, as long as there has been no final determination on the application as of that date. The amendment was drafted specifically to overrule a 1996 Board of Immigration Appeals (BIA) decision that held that the waiver was available if the familial relationship arose after the smuggling incident but before the time of application for relief. In Matter of Farias-Mendoza, the respondent, an LPR, was caught smuggling her boyfriend from Mexico into the United States. She married her boyfriend before the deportation hearing and the BIA held that the waiver was available. It found that to hold any other way would defeat the purpose of the waiver provision, which was to encourage family unity. Congress apparently did not agree. It passed the amendment to foreclose what it perceived to be an opportunity for abuse. Therefore, unless you are applying for this relief prior to 1996 which is not likely, you would have had to have been married at the time that the alien smuggling was committed and you would have to be a Lawful Permanent Resident. Question: Should I get the help of an attorney in Removal Proceeding to help apply for the Waiver since there is no actual form? Answer: It would be a great idea to get an attorney. Just because there is no formal form required, there will have to be put together a Waiver package and there must be witnesses and a trial that is put on for the Judge. It is very discretionary and if not approved, you would be deported.

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