Attorney Sotelo was retained by a family living abroad after their green card applications were denied. The husband and wife are citizens of St. Lucia, a country in the West Indies, and their 20-year-old son is a citizen of Canada. In 2003, the wife’s U.S. citizen sister sponsored her and her family for green cards.
After waiting in line for over a dozen years, the family applied for immigrant visas when their priority date became current in 2015. They appeared for their consular interview at the US Embassy in Barbados in November 2016. At their interview, the officer learned that the son had previously entered the U.S. as a tourist and had overstayed. Fortunately, for him, only a few months of this period occurred after he turned 18, and as such, only those count as unlawful presence in the United States.
The son also attended school in the U.S., but he did not change his status to F-1 student.
His mother and father believed that as a Canadian citizen who did not require a visa to come to the U.S., he could remain in the U.S. and attend school here. His mother obtained a tourist visa in order to accompany him to the U.S. She knew that she could not stay longer than six months on her visa, and never did, nor did she ever otherwise violate the terms of her visa. She was not aware that similar restrictions applied to her Canadian son.
However, based on her son’s prior unlawful presence and school attendance in the U.S., the officer at the U.S. Embassy found that she was inadmissible to the U.S. for alien smuggling under section 212(a)(6)(E) of the Immigration and Naturalization Act (INA), which makes inadmissible any alien who knowingly encourages, assists, aids or abets another to enter the U.S. illegally. Because her son was a minor at the time of his entry, overstay and school attendance in the U.S., and she had provided financially for him while he was in the U.S., she was deemed to have “encouraged, assisting, aided or abetted” him in entering the U.S. in violation of law. What’s more, she was not eligible for a waiver of the alien smuggling ground.
When she scheduled a consultation with us, she was very upset. She had waited in line for over 15 years only to be refused a green card on the false grounds that she had smuggled her son into the US.
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“My family and I were clients of Mr. Carl Shusterman and I can honestly say that he had a tremendous impact on our lives – a very positive one. Even when my parents had been denied and they had been told to pack and get out of this country, Mr. Shusterman rushed to find an alternative in order to ensure that my parents could stay.”
- Diana Cabrera, Reno, Nevada
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Attorney Sotelo advocated for her, arguing that her actions did not meet the definition of “alien smuggling” under 212(a)(6)(E), INA. To be found inadmissible for alien smuggling, one must act “knowingly” encourage, induce or assist an illegal alien to enter the U.S. A defense to this ground is a good faith belief that the alien was entitled to enter legally, even if this belief is mistaken.
Our client never knew anything was wrong with her son’s prior entries into the U.S. until she was charged with alien smuggling by the consular officer. In fact, her son had been able to enroll in school without any problems and had been offered a soccer scholarship at a community college. What’s more, he had been allowed to return to the U.S. after a brief departure in 2016 by a CBP officer whom he told about his prior school attendance and who told him, “okay, good luck and enjoy” before admitting him to the U.S.
Attorney Sotelo also challenged the “aiding and abetting” portion of the law arguing that our client never helped her son enter the U.S. illegally because he was always lawfully admitted after inspection by an immigration officer, and the fact that she financially supported him was not a means to aid and abet an unlawful entry but rather to provide for her minor son’s needs.
Attorney Sotelo submitted her arguments to LegalNet which consists of attorneys employed by the US Department of State. LegalNet agreed with Attorney Sotelo’s argument that the inadmissibility ground for alien smuggling did not apply in this case, and instructed the US Embassy in Barbados to resume processing the applicants’ immigrant visa applications.
This time, the U.S. Embassy granted our clients applications for permanent residence in the US. They could not be happier!
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.