Under immigration law, an alien smuggling offense takes place when one knowingly encourages, induces, assists, abets, or aids an alien to enter or to try to enter the United States. Committing this offense is cause for either removal or inadmissibility charges under the Immigration and Nationality Act ("INA"). In addition, a federal criminal conviction for alien smuggling under INA section 274(a)(1)(A) or 274(a)(2) classifies the immigrant as an aggravated felon, leading to near certain deportation.
Although the INA levies harsh penalties against smugglers, the practice has not showed any signs of slowing. In 2010, the United States Border Patrol apprehended 463,382 individuals smuggled across the border, including 8,905 smugglers. Of the smugglers, 3,027 were deemed deportable under the INA. The types of smugglers who are seized vary "from self-smugglers [that is, migrants illegally crossing the border on their own] . . . , to local-level individual smuggling entrepreneurs [family-based smugglers] . . . , to highly organized and sophisticated transnational smuggling networks . . . ."
Despite the severe penalties imposed on most categories of smugglers, a small refuge exists for some family-based smugglers. All three of the major INA sections punishing alien smuggling include either a discretionary waiver or an outright exception for a smuggler who is the spouse, child, or parent of the smugglee. These nuclear family exemptions provide a safe haven for some immigrants; however, strictly limiting this waiver to three relationship categories fails to protect all aliens deserving of congressional exemption.
This paper argues that in order for the U.S. Congress to faithfully carry out the purposes behind these exemptions, it must expand the family exception and waivers to include all close genetic relatives when the smugglee is a minor child. Using the procedural history and legislative framework of the current exemptions, Part II defines the three primary purposes for excluding parents, spouses, and children from immigration smuggling prosecutions. Part III examines the current enforcement practices in the area of family-based alien smuggling, drawing on empirical data from recent case law, anecdotal accounts, and prosecutorial policies established by the Department of Homeland Security and United States Attorneys Offices. Finally, Part IV suggests a statutory or regulatory modification to the current exemptions that would better serve Congress's stated goals for these statutory exclusions.