Sanchez v. Holder (9th Cir. 2009)

Sanchez, the petitioner in this case was born in Mexico.  He first came to the United States as an undocumented alien in 1988.  He found a job and settled in Oakland, California, residing in the same area and working for the same employer for many years.  In 1993, he briefly returned to Mexico to marry is childhood sweetheart.  In order to come back to the U.S., Sanchez paid a coyote $1000 to smuggle him and his wife into the country.  The couple made it back to California and Sanchez resumed his employment with his old job.  Several years later, they had three children together, all of whom were born in the U.S., and therefore, American citizens.  During the entire time he lived in the U.S., Sanchez paid all his taxes, owned a home, stayed out of trouble with the law, and by all accounts was a respectable member of his community.  His children were model students and did very well in school.

In 2000, the government began removal proceedings against Sanchez because he was an alien not authorized to reside in the U.S.  As a defense, he applied for cancellation of removal.  Sanchez established all of the prima facie requirements.  His children, who are U.S. citizens, would suffer extreme and unusual hardship if he was removed from the U.S.  Also, he resided in the U.S. for at least 10 years.  The immigration judge found that Sanchez met all the requirements for cancellation of removal except that he could not establish that he was a person of good moral character.  Usually, a petitioner will not be able to establish good moral character if he had been convicted of certain crimes.

What was Sanchez’s crime which precluded him from being considered to have good character?  Alien smuggling.  His hiring a coyote in 1993 to smuggle him and his new wife into the country was considered alien smuggling.  8 U.S.C. § 1182(a)(6)(E)(i) defines alien smugglers broadly as aliens who have at any time “knowingly…encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.”  By this definition, Sanchez was an alien smuggler because he assisted his wife to enter the country illegally by paying a coyote.

Unfortunately for Sanchez, 8 U.S.C. § 1182(a)(6)(E) specifically precludes a person who is an alien smuggler from being considered to have good moral character.  That is, a person who has knowingly encouraged or assisted other aliens to enter the United States illegally may not be found to have good moral character.  Sanchez argued that 8 U.S.C. § 1182(d)(11) provides an exception to this strict rule in that alien smugglers who smuggle in their own family members may still be considered to have good moral character.  However, the court found that this exception did not affect Sanchez because the exception only applied in cases involving applications for waivers of inadmissibility, not cancellation of removal.  Because Sanchez was applying for cancellation of removal, the court found that the “family member” exception to the alien smuggling prohibition against a finding of good moral character did not apply to him.  For this reason, he was precluded from being found to have good moral character and therefore, not eligible for cancellation of removal.

What the court held is that the Attorney General has discretion to grant relief from inadmissibility, but not cancellation of removal.  A curious holding, to say the least.  I’m not entirely persuaded by the court’s reasoning, but nonetheless, it is now the law in the 9th Circuit.  The bottom line is that it will lead to more denials of cancellation of removal petitions because it gives the government counsel an almost non-defensible opportunity to trip up the petitioner during cross-examination because many such persons at one point or another paid someone else to help them enter the country.