By Attorney Nancy E. Miller
People come to the United States to make a better life for themselves and their families. Sometimes, they sacrifice time they could spend with their families in order to be able to earn money to provide food, clothing, shelter, medical care or an education to their loved ones. When, for whatever reason, they can’t bring their family members with them, they come alone. It is hard. Sometimes, the loneliness becomes too much to bear. They go home and persuade their family members to join them in the U.S. If the family members can obtain and enter with a valid visa, all may be good. But where that is not possible, the family may choose to enter unlawfully. They may be caught at the border during the attempt. And, even when they actually enter without being caught, all is not well. Instead of the problems being over, they may just be beginning.
The Immigration & Nationality Act states that any alien who at any time has knowingly encouraged, induced, assisted, abetted or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible. The Act provides a waiver of the ground of inadmissibility for an alien who is a green card holder who temporarily and voluntarily left and is eligible to re-enter the U.S. or an alien who is applying for a green card through a family petition, and the person he brought in was, at the time of entry, his (lawful) spouse, parent or child. The Act also states that an alien who (prior to the date of entry, at the time of entry, or within 5 years of entry) knowingly has encouraged, induced, assisted, abetted, or aided any other alien to entry or to try to enter the United States in violation of law is deportable. Here a waiver may be available for one who is lawfully admitted for permanent residence if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.
Simply put, this means that a non-citizen who tries to help someone enter the U.S. in violation of law can be refused admission, denied a green card or deported. Those aliens may still be able to get or keep their green cards under limited circumstances if the person whom they sought to help is a relative as defined above – at the time of the attempt to enter. The person who brought or attempted to bring someone else (even his parent, wife or child) into the U.S. is considered an alien smuggler. Under case law from the Ninth Circuit, he cannot be found to have good moral character. In Sanchez v. Holder, the court held that, under the Act, no person shall be found to be a person of good moral character who, during the period for which good moral character is required to be established is, or was, a person whether inadmissible or not, a smuggler.
The court held that, even if the waiver would cure the ground of inadmissibility, it would not allow the alien to be found to be a person of good moral character.
This finding impacts those who might be eligible for another form of relief. For instance, someone who does not qualify for an immigrant visa may seek to remain in the U. S. and seek status by means of cancellation of removal for certain non-permanent residents. Cancellation has four requirements: (1) that the alien have been physically present in the United States for a continuous period of not less than 10 years immediately preceding the issuance of a notice to appear in immigration court; (2) that he has been a person of good moral character during that period; (3) that he not have been convicted of various crimes that would render him inadmissible or removable; and, (4) that he have U.S. citizen or lawful permanent resident parents, spouse or children who would suffer exceptional and extremely unusual hardship if he had to leave the U.S.
Based on the holding in Sanchez, he cannot meet the statutory grounds for cancellation because he cannot show good moral character.
The desire to reunite families is understandable. Aliens who wish to bring family members to the U.S. should consult a knowledgeable and experienced immigration attorney to accomplish this goal legally.