Challenging a Finding of Smuggling
By Frank Head*
In 2001 my client left his home in Mexico and entered the United States without inspection. Years later he met a U.S. citizen, they fell in love, and in 2009 they got married. They are now the proud parents of two US citizen children. His wife filed an I-130 petition in his behalf, which was quickly approved. He was then scheduled for an immigrant visa interview with the consulate in Ciudad Juarez on February 10, 2012. Knowing that he would be found inadmissible for triggering the unlawful presence bar when he left the country, our office assisted in preparing a waiver application based on extreme hardship to his wife. Since he had never left the country after entering in 2001, he had had no contact with immigration officials, and he had no criminal record, we treated this as a relatively routine case. In fact, the only thing that was unusual about the case was the strength of the waiver application: he had excellent evidence supporting extreme hardship in almost every category. Unfortunately, he didn’t get the chance to submit the waiver.
At the consular interview the officer appeared friendly and asked what seemed like innocuous questions about when he had crossed the border in 2001. Who did he come with? How did they enter? He responded truthfully: he had entered with his two uncles and a cousin. They had paid a "coyote," who was a friend of one of his uncles. My client was the youngest of the group. Each person paid their fair share of the coyote’s fee. The officer didn’t ask any more questions about the coyote, but did return several times during the interview to the issue of crossing with his uncles, but always in an offhand way. She would preface her questions with something like: "Oh, sorry, I have to reenter this into the computer. So you entered the United States in the company of your uncles, right?" My client answered in the affirmative. Then the officer told him that her computers were down and he would have to go home and wait for his paperwork to arrive by DHL.
Two weeks later, my client received the "Blue Sheet" from the consulate indicating it had denied his immigrant visa application based on a finding of inadmissibility under section. 212(a)(6)(E)(i). The consul had determined that he had "aided and abetted" the entry of his uncles and therefore was permanently inadmissible for smuggling. There is no waiver for smuggling your uncles, only for smuggling your spouse, parent, son, or daughter. He would not be eligible to file a waiver for the unlawful presence bar.
I started doing research and it didn’t look promising. Most sources told me the client was out of luck, due to the "doctrine of consular non-reviewability" – an unwritten rule that you cannot challenge a consular officer on questions of fact. So, in other words, if the consular officer reports that the applicant stated that he was a serial murderer, you cannot contradict the consul’s finding of facts. I was advised that it was important that, regardless of outcome, to follow protocol, so I did.
Protocol in this case mandated that I first communicate with the consulate through the Legal Inquiry for attorneys and BIA representatives (http://ciudadjuarez.usconsulate.gov/feedback-form.html) and request that a supervisor review the case. I did that and received a standard response reiterating the same statement the consular officer made, i.e. "client stated that he aided and abetted the illegal entry of his uncles and cousin during his 2001 entry." In fact my client never admitted any such thing.
After more extensive outreach and with CLINIC's help, I made contact with an attorney whose client had received a similar charge of inadmissibility. He was successful in getting the inadmissibility finding rescinded by requesting an Advisory Opinion at LegalNet@state.gov, an office of the State Department located in Washington, D.C. The attorney suggested a strategy of contesting the ruling as a misapplication of the law, not challenging it as a factual determination.
I followed his lead and filed a one-page request for intervention. I stated that the facts were not in dispute: my client entered the United States with the assistance of a coyote and was accompanied at the time by his uncles and cousin. I pointed out that my client was the youngest member of the group and that one of his uncles had found and hired the coyote. I argued that it was a misapplication of the law to conclude based on those facts that my client had “smuggled” his uncles. I argued that “this cannot have been the intent of Congress when this law was passed – otherwise all persons illegally crossing the border other than strictly alone would be declared permanently inadmissible.” I attached a G-28, a statement by the client as to what had happened during the interview, and a copy of the Blue Sheet indicating my client's ineligibility.
After seven weeks I had still not received a response, other than an email stating my request had been referred to the Legal Advisory Opinion Department. During the last two weeks of April 2012, my client’s wife started a social media campaign. I wrote letters explaining the case and contacted my client's U.S. senators. I managed to get one of those letters into the hands of Secretary of State Hillary Clinton's office manager. I also personally delivered one into the hands of President Bill Clinton, who was speaking at an event in Arkansas. The client's brother created a You-Tube movie about their case and started a petition drive on change.org. Just as we were about to unleash all this, I sent an email requesting a status update on the case and LegalNet advised me of the following:
“The Visa Office has provided an advisory opinion to the consular officer who has agreed to rescind Mr. X’s INA section 212(a)(6)(E) ineligibility. The consular officer will contact Mr. X to provide instructions on filing a waiver for his 212(a)(9)(B) ground of inadmissibility.”
I have no idea if any of this "extracurricular activity" had any influence on the State Department’s decision or if anyone even contacted them. I do believe that it is important not to accept an improper decision, even if it comes from the State Department, which is considered above review. This was an injustice and required using every means available to remedy it. At a minimum, all of the outreach, organizing, and advocacy kept my client and his family busy, kept their hope alive, and gave them something to focus on other than the thought of permanent inadmissibility.
* Frank Head is Program Director of Catholic Charities of Arkansas, Immigration Services Northwest Office in Springdale, AR.