Helping a relative cross the border: what counts as smuggling?

This is general information, not legal advice. The facts of what you did matter a lot. Only a lawyer who hears the whole story can tell you where you stand.

What does immigration law call "smuggling"?

Immigration law uses the word broadly. Under 8 U.S.C. 1182(a)(6)(E), a person is inadmissible if they knowingly encouraged, induced, assisted, abetted or aided another person to enter or try to enter the U.S. in violation of law.

That means:

• It covers family. There is no exception just because the person was your relative. Most smuggling cases DNLH readers face are about family.
• No money needed. You don't have to be a paid smuggler.
• No arrest or conviction needed. The immigration ground is about what you did, not whether you were charged.
• You must have known. If you didn't know the other person had no right to enter, it is not smuggling.
• There is no time limit for the green card and visa rule. Something you did 20 years ago can still come up.

What usually counts?

Each case is different, but these are the kinds of acts that courts and legal groups treat as smuggling:

• driving a relative across the border or hiding them in a car,
• lending your child's birth certificate or another person's papers so someone could cross,
• arranging or paying for a smuggler ("coyote"). The Immigrant Legal Resource Center warns that sending money to pay a smuggler has been treated as smuggling. Ask your lawyer how this applies to you.

What does not count?

The law requires an affirmative act of help. The Ninth Circuit, which covers California and most of the West, held in Altamirano v. Gonzales (2005) that just being in the car while knowing someone was hidden in the trunk is not enough. A later Ninth Circuit decision from 2020 explains that rule and applies it.

So these, by themselves, are usually not smuggling under that rule:

• being present while someone else carried out the plan,
• knowing about the plan but doing nothing to help it, and
• helping a relative after they were already living here, like giving them a room. (That is different under criminal law. See below.)

Other parts of the country may apply the rule differently. Your lawyer will look at the law where your case is.

How can smuggling hurt my immigration case?

In four main ways.

1. It can block a green card or a visa. That's the inadmissibility ground above.
2. It can get a green card holder deported. Under 8 U.S.C. 1227(a)(1)(E), a green card holder is deportable if they helped someone enter illegally before their own entry, at the time of any entry, or within 5 years after any entry.
3. It blocks good moral character. Anyone who falls under the smuggling ground can't show good moral character during the period that counts, under 8 U.S.C. 1101(f)(3). That matters for citizenship and for cancellation of removal.
4. A conviction can be an aggravated felony. A conviction for smuggling under federal law is an aggravated felony, under 8 U.S.C. 1101(a)(43)(N), except a first offense where you prove you only helped your spouse, child or parent. See What is an aggravated felony?

Is there a waiver for helping family?

Sometimes. The waivers are narrow.

For a green card through family, or a returning green card holder. Under 8 U.S.C. 1182(d)(11), the government may forgive the smuggling ground for humanitarian reasons, to keep a family together, or in the public interest, if all of these are true:

• you helped only your spouse, parent, son or daughter (and no one else), and that person was already your relative when you helped, and
• you are a green card holder coming back from a temporary trip, or you are applying as an immediate relative of a U.S. citizen or in a family category other than brothers and sisters.

What this waiver does not cover, as the ILRC advisory explains:

• helping a cousin, niece, nephew, friend, or anyone besides your spouse, parent or child,
• green cards through a brother or sister who is a citizen (the fourth family category),
• green cards or visas through a job, and
• citizenship and other cases where you must show good moral character.

For green card holders facing deportation. A similar waiver exists under 8 U.S.C. 1227(a)(1)(E)(iii), again only if you helped your spouse, parent, son or daughter.

The old Family Unity rule. A separate exception covers some people who were in the U.S. on May 5, 1988, and before that date helped only a spouse, parent, son or daughter. It is tied to the 1986 amnesty program, so it fits few people today.

A waiver is a request, not a right. You will need to show why it should be granted, like hardship to your family, long ties here, and good conduct since.

Does it affect citizenship?

Yes, it can. If you helped someone enter illegally during the years USCIS looks at for good moral character, you can't show good moral character for that period. The family waiver above does not fix that. Often the answer is to wait until the act falls outside the period. Get a screening before you file. See Can I become a US citizen? Check these warning signs first.

And if you have a green card and the smuggling happened within 5 years of an entry, applying could expose you to deportation. That's why a lawyer must check your dates first.

Can I be charged with a crime for this?

Yes. Federal criminal law, 8 U.S.C. 1324, makes it a crime to bring someone in at a place other than a port of entry, to transport or hide someone who is here unlawfully in furtherance of the violation, or to encourage or induce someone to come or stay unlawfully. The penalties are per person:

• up to 10 years for bringing someone in, or for other acts done for money,
• up to 5 years for transporting, hiding or encouraging without money involved, and
• up to 20 years if someone is seriously hurt or put in danger, and life or death if someone dies.

In 2023, in United States v. Hansen, the Supreme Court read the "encourage or induce" part narrowly. It covers only purposeful soliciting or helping of specific acts known to be illegal, not general advice or speech. Living with or loving a relative who has no papers is not a crime by itself.

If you are charged, get a defense lawyer right away and tell them you are not a citizen. See Not a citizen and arrested in California and Why some people face criminal charges for crossing the border.

What should I tell officers or put on forms?

Tell the truth. Lying on an immigration form or to an officer is its own serious problem and can be harder to fix than the smuggling issue. Many forms ask whether you have ever helped anyone enter illegally.

But get legal advice before you answer, so your lawyer can tell you whether you fall under the ground, whether a waiver fits, and how to explain what happened. Bring your lawyer to any interview if you can.

What does this look like in real life?

Example (fictional). Ana became a green card holder in 2012. In 2014, she drove to the border and helped her 16 year old son cross without inspection. Now her U.S. citizen husband wants to help her son, and Ana wants to apply for citizenship. Her lawyer explains: helping her son is smuggling, but the family waiver may be available for his own case later. For Ana's citizenship, she should wait until 2014 is well outside the good moral character period, and her lawyer will check whether the 5 year deportation rule reaches her before she files.

Questions people ask

I helped my sister. Is there a waiver? Not under the family waiver, which covers only a spouse, parent, son or daughter. A lawyer may still find another option.

I paid a coyote years ago for my child. Does that count? It may. Legal groups say paying a smuggler can count. The family waiver may help if it was only your child.

Does it matter that I was never caught? No. The immigration ground does not require an arrest or conviction. Officers may learn about it from your answers or old records.

My relative now has papers. Does that erase it? No. What matters is what you did and when.

Who can help?

Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

• Anywhere in the U.S.: search ImmigrationLawHelp.org by zip code for nonprofit legal help, or the EOIR list of pro bono legal service providers if you are in immigration court.
• Anywhere in California: the California Department of Social Services provider map, or call (916) 651-8017.
• San Mateo and Santa Clara county residents with low income: Community Legal Services in East Palo Alto (CLSEPA), (650) 326-6440.
• Bay Area: Immigration Institute of the Bay Area, Redwood City, free first consultation, (650) 587-1558.
• More help: Free or low cost immigration legal help in the Bay Area and Warning signs of an immigration scam.

You helped someone you love. The law may see it differently, but you still have options. Get honest advice first, and take the next step with a plan.