Section 212(d)(11) Waiver for Smuggling

Section 212(d)(11) of the Act provides that the Attorney General may, in his discretion, for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive the charge of inadmissibility under INA 212(a)(6)(E)(i) for alien smuggling, if the alien has encouraged, induced, assisted, abetted, or aided an individual who, at the time of the action, was the alien’s spouse, parent, son, or daughter, to enter the U.S. in violation of law. See Matter of Farias, 21 I&N Dec. 269, 281-282 (BIA 1997) (holding that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 amended the INA to limit the availability of the waiver to only those aliens who have smuggled an individual who at the time of the offense was the alien's spouse, parent, son, or daughter); Selimi v. INS, 312 F.3d 854, 861 (7th Cir. 2002) (finding that under section 212(d)(11) of the Act an alien is ineligible for a waiver “if he has aided someone other than his spouse, parent, son, or daughter”).

To qualify for a section 212(d)(11) waiver, the alien must be a lawful permanent resident who temporarily proceeded abroad voluntarily and not under an order of removal, and must be otherwise admissible to the U.S. as a returning resident under section 211(b), or the alien must be seeking admission or family-sponsored adjustment of status as an immediate relative or immigrant under section 203(a) of the Act (excluding brothers or sisters of U.S. citizens who are twenty-one or older). In addition to establishing statutory eligibility for a waiver under INA 212(d)(11), the applicant must demonstrate that he or she merits the grant of such waiver in the exercise of discretion.