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I previously published a post on cancellation of removal for permanent residents and indicated that I would discuss “discretion” in a later blog post.  It is sometimes easier to talk about concepts when they do not apply.  In the situation of a person who is an alien smuggler, the 9th Circuit Court of Appeals has established that such a person cannot establish good moral character for purposes of cancellation of removal.  The Judge has no discretion to grant a case with such facts because the applicant is statutorily prevented from obtaining the relief.  I will discuss the case that established this law and the facts surrounding it.

In Sanchez v. Holder, 560 F.3d 1028 (9th Cir. 2009), the applicant, Mario Sanchez, entered the United States in April 1988 without inspection, and resided here without lawful status.  He returned to Mexico for three weeks in August 1993 to get married.  After the wedding, he paid a “coyote” $1,000.00 to smuggle himself and his new spouse into the United States.

In May 2000, the Immigration and Naturalization Service (“INS”) (the agency that previously existed before the creation of United States Citizenship and Immigration Services and Immigration Customs and Enforcement), charged him with removal and placed him in removal proceedings.  He applied for cancellation of removal on the ground that removal would result in exceptional and extremely unusual hardship to his U.S. citizen children and lawful permanent resident father.  After a hearing, the Immigration Judge (“IJ”)  found that Mr. Sanchez had met the statutory qualifications for cancellation of removal in all but one respect: he was barred from establishing good moral character because he helped his wife enter the country illegally in 1993. The IJ reasoned that Sanchez’s conduct made him “a member of one or more of the classes of persons”—in this case, a smuggler who by statute cannot be found to have good moral character.

The Court first analyzed the definition of good moral character as contained in 8 U.S.C. 1101(f).  Under the provisions of that statute as well as under another – 8 U.S.C. Section 1182(a)(6)(E)(i) a person is precluded from establishing good moral character who has at any time “knowingly…encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter the United States in violation of law.”

The Court determined that Mr. Sanchez could not establish good moral character because he admitted to aiding his wife to enter the United States illegally by paying a coyote to smuggle her across the border.

There are other statutes which waive “alien smuggling” in the context of admissibility and adjustment of status but the Court determined that they were inapplicable to applicants for cancellation of removal.

There were two dissenting opinions in the case and one of them would have reversed the decision.  Nevertheless, Sanchez, remains good law and has been upheld in cases decided after it.  The best advice to an individual in this situation would be to argue that the alien smuggling provisions should not apply or to apply for another form of relief other than cancellation of removal, if there is something else available.  Cancellation of removal is not available to persons who have been found to be alien smugglers.