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Feb 16, 2006
“Alien Smuggling” Requires an Affirmative Act of Assistance
- Atty. Michael Gurfinkel Email this article


Recently, the Ninth Circuit Court of Appeals (which is one level below the U.S. Supreme Court) held that a person was not guilty of alien smuggling, despite being fully aware that an illegal alien was in the trunk of the car in which she was riding, and she knew fully well that the alien was trying to enter the U.S. in violation of U.S. immigration laws. 


The Court held that the person’s “mere presence in the vehicle at the port of entry does not constitute alien smuggling… despite her knowledge that an alien was hiding in the trunk of the vehicle.”  Instead, the law requires “an affirmative act of help, assistance, or encouragement.”


In that case, the person (who was a citizen of Mexico), made frequent trips back and forth from the U.S. to Mexico.  On one of the trips, she attempted to enter the U.S. in a vehicle in which an illegal alien was hiding in the trunk.  She admitted in court that she knew the alien was in the trunk when the vehicle attempted to pass through the border checkpoint.  She claimed that she was not guilty of alien smuggling because “she did not affirmatively assist the alien in attempting to enter the United States.”  All she did was sit in the car, but knew full well that the alien was in the trunk. 


The Department of Homeland Security charged her with alien smuggling because she knew that, “there was undocumented and unauthorized [alien] in the trunk of the car”, and thus, was guilty of alien smuggling. 


The Ninth Circuit Court of Appeal noted that in order to be guilty of alien smuggling, the person must have “knowingly encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law…”  The Ninth Circuit reasons that the plain meaning of this law requires “an affirmative act of help, assistance, or encouragement.”  In this particular case, the person did not “affirmatively” act to assist the alien who was hiding in the trunk, and therefore did not engage in any alien smuggling, even though she know fully well he was hiding in the trunk and that he was trying to cross the border.  The Court further noted that even the Foreign Affairs Manual (which is a guide-book for the U.S. Embassy) notes that there must be some “action” on the part of the person being charged with alien smuggling.  If no such action took place, there’s no alien smuggling.


I think that this case could be important to many Filipinos who have been charged with alien smuggling.  For example, I have come across several cases where siblings were being petitioned as “single” by their parent, but one of them may have married.  In some cases, the truly single brother(s) or sister(s) had been charged with alien smuggling, based on the conclusion that, as siblings, they must have known of the other sibling’s marriage, and didn’t say anything.  Accordingly, the truly single sibling(s) were “aiding or abetting” the married one to enter the U.S. 


However, this recent Ninth Circuit case indicates that such conduct (or lack thereof) may not constitute alien smuggling, if there was no affirmative assistance or “action”.  Remember, mere knowledge of another alien’s attempt to enter the U.S. would not be enough to constitute alien smuggling under this case.


If you were refused a visa, or know someone who was refused a visa for alien smuggling under these circumstances, you may want to seek the advise of an attorney, who could evaluate your case and determine if or whether you committed alien smuggling.  (Please note that claiming a child as your own when such is not the case (i.e. a given child, grandchild, niece, or nephew), in order to get a visa for that child, may not be covered by the exception in this recent case.  This is because in such a situation, there may have been an “affirmative act” in aiding or abetting the other alien, such that it could be alien smuggling).



Michael  J. Gurfinkel has been an attorney for over 25 years, and is an active member of the State Bar of California and New York, as well as the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association.  He has always excelled in school:  Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. 




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