Excerpted From: Valeria Martinez, The Not-Smuggling Problem: The Effects of the United States' Overbroad Definition of Migrant Smuggling on Migrant Families, 41 Wisconsin International Law Journal 443 (Spring, 2024) (207 Footnotes) (Full Document)

ValeriaMartinezMaribel is a young single mother. Public sector corruption, widespread poverty, and gang violence plague her home country. She can turn to neither strained social assistance programs or the police for help. She lacks a secondary education but is unable to return to school, as she and the education system are underresourced. There are no gainful employment prospects. Hoping to find work to build a better life for her infant son, she opts to take the treacherous path to the US-Mexico border. Leaving her newborn behind is not an option. She has no one else that could care for the baby in her absence, and she is still nursing. With the guidance of a “coyote,” or smuggler, she crosses the desert into the United States without authorization, holding her infant close to her chest.

Years pass, and Maribel is now married to a US citizen. Her husband petitions for her to become a US permanent resident. United States Citizenship and Immigration Services (USCIS) approves the first and second steps of the multiyear process, the I-130 Petition for Alien Relative and the I-601A Application for Provisional Unlawful Presence Waiver. In the third step, Maribel returns to her home country to attend an immigrant visa interview at the US Consulate. However, the consular officer denies her immigrant visa. The consular officer finds that Maribel “smuggled” her son into the United States years ago when she carried him across the border. US immigration law bars her from admission and permanent residence because she unlawfully brought her child across the border and paid for the coyote. While there is a waiver available for those accused of smuggling their children, it is discretionary. Maribel must pay a $1,050 filing fee and legal fees as well as remain in her home country for over a year while USCIS processes the application. Local conditions have not improved since she last lived in her home country, and her US citizen-spouse now carries the burden of sending remittances to support Maribel abroad. Yet, Maribel is lucky: she evaded criminal prosecution for migrant smuggling. An overzealous federal prosecutor could have charged her for bringing her child into the United States unlawfully.

It does not have to be this way for Maribel or migrants like her. Migrating families are not smugglers. The problem is that the United States defines migrant smuggling too broadly in immigration and criminal statutes, implicating migrant families instead of narrowly targeting true migrant smugglers: criminals who seek profit. The United Nations Protocol Against the Smuggling of Migrants by Land, Sea and Air (Migrant Smuggling Protocol), a treaty the United States ratified, narrowly defines smuggling as an act committed for the purpose of financial or other material benefit ([Financial or Other Material Benefit}), and it obligates its signatories to adhere to its definition. In response to an implementation survey of states party to the protocol, the United States claimed that allowing prosecution in situations lacking the [Financial or Other Material Benefit} element does not dilute the protocol but, rather, exceeds its standards.

I disagree. The Migrant Smuggling Protocol clearly requires party-states to include the intent to benefit financially or otherwise materially as an element of the base offense. I propose that the United States extend the protocol's approach to migrant smuggling to its immigration statutes as well. Part I of this Article defines migrant smuggling, contextualizes the activity, and paints a real-world picture of the common migrant smuggler. Part II describes the domestic and international legal instruments to combat migrant smuggling and introduces the Migrant Smuggling Protocol. Part III analyzes the protocol's text and supplementary documents to demonstrate how the United States fails to comply fully by not establishing as an element of the base offense intent for [Financial or Other Material Benefit}. Part IV argues that using discretion when choosing which acts to prosecute does not solve the gap in compliance, and it offers an amendment to the US criminal law as a solution. Finally, Part V makes a case for the United States to extend the protocol's definition to its immigration statutes.

[. . .]

Imagine the following alternative to Maribel's story: Years pass, and Maribel is now married to a US citizen. Her husband petitions for her to become a US permanent resident. USCIS approves the first and second steps of the multiyear process. In the third step, Maribel returns to her home country to attend an immigrant visa interview at the US Consulate there. Her immigrant visa is approved without further delay, and she returns to the United States as a permanent resident to reunite with her son. Three years later, she acquires citizenship and continues to be a productive member of society. She and her son enjoy a safe and stable life with opportunities. This ending could be true if the United States' definition of migrant smuggling required intent for [Financial or Other Material Benefit}.

The UN Migrant Smuggling Protocol instructs that state parties shall establish as a criminal offense the smuggling of migrants which occurs for [Financial or Other Material Benefit}. Despite signing and ratifying the protocol and committing to its demands, the United States maintains an overly broad criminal statute, which, read plainly, implicates the actions of migrant families who assist each other's unauthorized entries without intending to gain [Financial or Other Material Benefit}. As long as the statute maintains this possibility, the United States fails to comply fully with the protocol. The United States would benefit from adopting the [Financial or Other Material Benefit} requirement in its immigration statutes because it would promote family unity and judicial and administrative efficiency.

J.D. Candidate 2024, University of Wisconsin Law School.