ALLOWING USE OF CHILD’S U.S. BIRTH CERTIFICATE
IS NOT “ALIEN SMUGGLING”

By Michael J. Gurfinkel Esq.

Recently, the 9^th Circuit Court of Appeals (which is one level below the U.S. Supreme court) ruled that a woman who allowed her father to use her U.S. citizen’s son birth certificate (in order to bring an infant into the U.S.) did not commit “alien smuggling:”

“We hold that… mere presence and acquiescence [in allowing the use of a child U.S. birth certificate] does not constitute alien smuggling under INA Section 212(a)(6)(E)(i).”

In that particular case, the woman’s father asked to use her infant son’s U.S. birth certificate in order to bring a undocumented infant relative into the U.S. from Mexico. He further told her that it would be “easier” to get through border inspection if the child’s “mother” was with them. Although she initially refused, she later reluctantly agreed to this scheme. She accompanied her father to Mexico. When they attempted to return to the U.S. with another child seated beside her in the vehicle, her son’s U.S. birth certificate was presented to Customs and Border Protection (CBP) officers. The officers suspected that the infant in the vehicle was not the “rightful owner” of that U.S. birth certificate and the woman and her father were sent to secondary inspection, where they ultimately admitted that the infant was not a U.S. citizen.

At her deportation/removal proceeding, the woman explained that her participation in the scheme (to bring the infant into the U.S.) was unwilling, even though she knew that her son’s birth certificate would be used to bring an undocumented infant across the border. The immigration judge nevertheless concluded that she had assisted in alien smuggling by “lending countenance” to the scheme, by lending her son’s birth certificate to her father, with the knowledge that it would be used to bring an undocumented infant into the U.S.

The 9^th Circuit Court of Appeal stated that the issue in the case was whether the woman “assisted” in alien smuggling by reluctantly acquiescing in (or going along with) her father’s use of her son’s U.S. birth certificate. The 9^th Circuit held that in order to be “guilty” of alien smuggling, there must be an affirmative act of help, assistance, or encouragement. However, reluctantly saying “yes” to her father’s repeated requests to use her son’s birth certificate is not an “affirmative act.” Therefore, she did not “assist in alien smuggling.”

I want to be clear that alien smuggling is absolutely wrong, and carries a lifetime ban if a person has knowingly “encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.”

However, there may be occasions in the past where a person was charged or accused of alien smuggling, and was refused a visa to the U.S., or a green card, but they may not have engaged in an “affirmative act.” If you had been charged with alien smuggling (or a friend or relative has been charged under circumstances similar to this case (i.e. no “affirmative conduct”)), I would strongly suggest that you seek the advice of a reputable attorney, who can analyze your circumstances and determine, in light of the applicable cases and laws, whether the conduct truly constitutes “alien smuggling.”