The Board of Immigration Appeals (BIA) ruled recently and as a result clarified in the case of Matter of Martinez-Serrano, 25 I&N Dec. 151 (BIA 2009) that a conviction for Alien Smuggling is not necessary for the U.S. Department of Homeland Security (DHS) to charge a foreign national with a ground of deportability under section 237(a)(1)(E)(i) – (Alien Smuggling) of the Immigration & Nationality Act (INA).

Ms. Martinez-Serrano became a permanent resident (green card holder) on December 1, 1990.  On August 23, 2006 when she returned to the U.S. from a trip abroad, fifteen (15) undocumented immigrants were apprehended in her home. 

On September 19, 2006, she was convicted of aiding and abetting 2 undocumented immigrants to evade and elude inspection by immigration officers.  She was also charged with harboring illegal aliens, but that charge was dismissed in exchange for her plea to the aiding and abetting charge for which she was sentenced to three (3) months in prison.

The case was initially terminated by the Immigration Judge in March 7, 2007 because the Immigration Judge ruled that although the facts of Ms. Martinez-Serrano’s case showed that she harbored undocumented immigrants, there was not enough evidence to show that she helped those immigrants enter the U.S. illegally.  Therefore, the Judge terminated Ms. Martinez-Serrano’s deportation  proceedings.

The DHS filed an appeal to the BIA.  The BIA exercised their authority to review the underlying Immigration Judge’s findings, discretion, rule of law and, whether the DHS met their burden of proof whether or not Ms. Martinez-Serrano was deportable.

 The BIA in its analysis looked at the section of the INA that Ms. Martinez-Serrano was charged with.  The BIA ruled and hence clarified that by looking at the plain language of that section of the immigration law, the DHS is not required to establish that a conviction is necessary to establish a basis for deportation under the alien smuggling statute.

In light of the BIA’s clarification, the fact that Ms. Martinez-Serrano was in fact convicted of aiding and abetting undocumented immigrants made the DHS’ case easier.  As a result, the BIA sustained the DHS’ appeal, vacated the underlying Immigration Judge’s decision, reinstated the deportation proceedings and, ordered that the case be sent back to the underlying Immigration Judge to consider any relief for which Ms. Martinez-Serrano may be eligible for.