U.S. Court of Appeals Holds that Alien Smuggling Statute Requires an Actually Illegal Entry

Rosas-Lopez v. Ashcroft, 2005 U.S. App. LEXIS 789 (9^th Cir.).

The Ninth Circuit Court of Appeals held that in order to be in violation of the alien smuggling statute, found at 8 U.S.C. § 1182(A)(6)(E), an actual illegal entry into the United States is required.

The Petitioners, natives and citizens of Mexico, are married with five children. Four of the children are natives and citizens of Mexico, and one child is a native and citizen of the United States, born after the family’s entry into the U.S. in the mid-1980s. The U.S. citizen child has health problems and requires medical treatment in the U.S. When served with notices to appear for removal proceedings in 1998, the Petitioners applied for cancellation of removal under 8 U.S.C. § 1229b(b).

The Immigration Judge found that the Petitioners failed to qualify for cancellation of removal because they could not establish "good moral character" as required by 8 U.S.C. § 1229b(b)(1)(B). The Immigration Judge determined that the Petitioners had been involved in alien smuggling in violation of 8 U.S.C. § 1182(A)(6)(E), by bringing their four children into the U.S. on valid 72-hour border crossing cards and then keeping them in the U.S. beyond the terms of the border crossing cards. The Immigration Judge determined that the actual entry itself was legal, but that keeping the children in the U.S. beyond of the terms of the border crossing cards placed the Petitioners in violation of the alien smuggling statute.

The Ninth Circuit reversed and remanded the Immigration Judge’s decision and the Board of Immigration Appeals’ affirmation, stating that the plain language of the statute focuses on entry. Section 1182(A)(6)(E)(i) reads, "any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter the United States in violation of law is inadmissible." The Ninth Circuit held that since the four children entered legally with valid border crossing cards, that the Petitioners did not violate 8 U.S.C. § 1182(A)(6)(E). The case was remanded for further consideration of the Petitioners’ applications for cancellation of removal.