The Not-Smuggling Problem: The Effects of The United States' Overbroad Definition of Migrant Smuggling on Migrant Families

Abstract

By signing and ratifying the United Nations Protocol Against the Smuggling of Migrants by Land, Sea and Air, the United States promised to the international community and to its citizens that it would adhere to a legal criminal definition of migrant smuggling that protects migrant families by only targeting in its language the organized offenders that aim to benefit financially or materially. After it made this promise, the United States did not amend 8 U.S.C. § 1324 to conform fully with the protocol. Contrary to the demands of the protocol, the statute does not establish as an element of the base offense of migrant smuggling intent for financial or material benefit. Instead, a prosecutor can decide whether to charge as a migrant smuggler one family member who assists another in entering unlawfully to the United States. The repercussions of this overbroad understanding of migrant smuggling are felt most in the immigration context in which a mother entering unlawfully into the United States while holding her infant is barred from seeking legal admission to the United States. This Article analyzes the protocol and finds that the United States falls short of its promise. I argue for amending 8 U.S.C. § 1324 and I propose that the United States extend the protocol's targeted migrant smuggling definition to its immigration statutes.

Keywords: Migrant Smuggling, Immigration, United Nations Protocol Against the Smuggling of Migrants by Land Sea and Air, 8 U.S.C. § 1324, International Law, international criminal organization, criminalizing migration, transnational organized crime