A HARSH POLICY TARGETING CENTRAL AMERICAN PARENTS AND CHILDREN SEEKING REFUGE IN THE UNITED STATES
"Alien smuggling" again. I have previously posted about the criminal and immigration problems that "alien smuggling" poses for individuals who bring aliens into the United States without being inspected and admitted. It is considered a crime far worse than simply crossing the border oneself illegally. It can easily put a permanent resident into removal proceedings and, if the more strict form of alien smuggling is charged (the one usually associated with for-profit entry) it will be considered an aggravated felony that could result in loss of permanent resident status and permanent removal from the United States.
Under the current administration ICE is making increased use of "alien smuggling" as a means of deterring central American children from seeking refuge in the United States. Let me give an based on recent experience.
A foreign citizen who is a lawful permanent resident sends money to the home country to assist his children or other family members with basic living expenses. This is a extremely widespread practice.
Without the knowledge of the lawful permanent resident, the family in the home country uses it in whole or in part to hire a "coyote" (alien smuggler) to send the child to "El Norte" (the USA). Once the child is detained and his relatives are discovered here in the USA, ICE conducts money transfer research and determines that the LPR sent money to the child's family.
An LPR here in New Jersey was recently grilled by ICE for hours under this very fact pattern in the hopes that they would get the LPR to admit that he sent the money to "smuggle" the child here. He did not, but the fact that ICE is targeting such an LPR is evidence of a broader policy to deter kids arriving at the border, regardless of their need. In the case such as this, for example, the child could have a legitimate asylum claim, or a special immigrant juvenile claim if he/she were abused or abandoned or neglected by the remaining parent in the home country.
There is a very simple response that anyone sending money to Central America to have a child appear at the border and seek refuge should employ. It is not alien smuggling if the child or the accompanying relative or adult arrives to the border and, rather than "sneak across," presents themselves instead at a lawful port of entry or border crossing and tells US Customs and Border Protection that they have arrived to seek refuge here.
That is my advice in every such case. If there is an accompanying parent, arriving with the child will deprive the child of "unaccompanied minor" status and some liberality in making asylum claims, this is "okay" if the parent him/herself has a parallel asylum claim, or even one in which the child is a derivative beneficiary. (Think battered Central American women seeking asylum in the United States in bringing their children.)
In a parallel post I will deal with the direct targeting of undocumented parents in the United States in connection with children's asylum or special immigrant juvenile claims.
Brian D. O'Neill Attorney at Law, LLC
Immigration, Employment and Business Law