Why Isn’t Paying Smugglers Its Own Federal Crime?

Congress should take the U.N.’s advice and cut smuggling off at the source to protect ‘the most vulnerable migrants’

By Andrew R. Arthur on February 3, 2023

There are any number of immigration-related federal crimes, from “bringing in and harboring” illegal aliens under section 274 of the Immigration and Nationality Act (INA), to “improper entry by aliens” under section 275 of the INA, to illegal reentry under section 276 of the INA, to “importation of an alien for an immoral purpose” under section 278 of the INA, and countless others. We know that individuals who are residing in the United States are paying smugglers to bring aliens in illegally, but there’s no specific crime punishing that activity. There should be.

“Aiding and Abetting” and Pinkerton Liability. At the outset, I should note that it’s not like American residents (including aliens unlawfully here) who pay smugglers to bring aliens aren’t breaking the law.

Under the federal criminal code at 18 U.S.C. § 2, anyone who “aids, abets, counsels, commands, induces or procures” an offense against the United States is as liable as the individual who commits that offense. A smuggler who “brings to or attempts to bring to the United States” an alien “at a place other than a designated port of entry” commits a felony under section 274(a)(1)(A)(i) of the INA, and thus the person who pays that smuggler is equally culpable under 18 U.S.C. § 2.

Similarly, under the rule announced by the Supreme Court in Pinkerton v. U.S., anyone who enters into a conspiracy to violate federal law is liable for any of the acts committed by a co-conspirator in furtherance of that conspiracy, provided that the individual did not attempt to withdraw from the conspiracy.

Accordingly, if you pay a smuggler to smuggle an alien into the United States illegally, and that alien or anyone else is placed into jeopardy or suffers serious bodily injury, you are facing the same 20-year sentence for that offense under section 274(a)(1)(B)(iii) of the INA as the primary actor. If that alien or another person (like a Border Patrol agent who jumps into the Rio Grande to save that alien) dies, the person who pays that alien’s smuggler could get life under section 274(a)(1)(B)(iv) of the INA.

U.S. v. Nava-Martinez. The problem is that the federal government rarely if ever goes after those who pay the smugglers, and for proof of that fact, I turn to a 2013 district-court order issued by Judge Andrew Hanen in U.S. v. Nava-Martinez.

The defendant in that case had pled guilty to violating section 274(a)(1)(A)(ii) of the INA for smuggling a 10-year-old Salvadoran girl into the United States. Specifically, when encountered by CBP at the Brownsville-Matamoros Bridge checkpoint, Nava-Martinez (a lawful permanent resident) offered up a birth certificate for the child that actually belonged to one of her daughters.

As Judge Hanen noted, the defendant “was to be paid” for smuggling the girl “although the identity of the immediate payor and the amount are unknown”. He explained, however:

The conspiracy was started when Patricia Elizabeth Salmeron Santos solicited human traffickers to smuggle [the girl] from El Salvador to Virginia. Salmeron Santos currently lives illegally in the United States.


She agreed to pay $8,500 (and actually paid $6,000 in advance) for these human smugglers to smuggle her daughter. The criminal conspiracy instigated by Salmeron Santos was temporarily interrupted when Nava-Martinez was arrested.

I will stop Judge Hanen’s narrative right there, to discuss briefly one of the most misbegotten of all immigration-related provisions, section 235 of the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).

That provision divides unaccompanied alien children (UACs) who are encountered by DHS without their parents or legal guardians, like the 10-year-old girl in Nava-Martinez, into two separate groups: those from “contiguous” countries (Canada and Mexico); and the rest from “non-contiguous” countries (every other nation).

Section 235 of the TVPRA allows DHS to return the Canadian and Mexican kids, provided they have not been trafficked and don’t have asylum claims. The UACs from non-contiguous countries (like the 10-year-old girl) must be sent to the Department of Health and Human Services (HHS) for placement in a shelter until they can be transferred to a “sponsor” in the United States — regardless of whether they have been trafficked or have any asylum claim.

That’s not the only bad law out there. In 1997, the Justice Department entered into a settlement agreement in Flores v. Reno, in which DOJ (which enforced the immigration laws before DHS was created in 2002) agreed to comply with fairly strict conditions in detaining and releasing UACs.

The Flores settlement agreement was the precursor to section 235 of the TVPRA, and yet Congress failed to explicitly address Flores when it created that HHS/sponsor regime — which led to other issues down the road when DHS tried to deal with tens of thousands of adults entering illegally with children monthly in “family units”. That’s an issue for another day.

Returning to Judge Hanen’s order where I left off, however, the court explained:

Despite this setback, the goal of the conspiracy was successfully completed thanks to the actions of the United States Government. ... The DHS officials were notified that Salmeron Santos initiated this illegal conduct, yet instead of arresting Salmeron Santos for instigating the conspiracy to violate our border security laws, the DHS delivered the child to her — thus successfully completing the mission of the criminal conspiracy.


This is the fourth case with the same factual situation this Court has had in as many weeks. In all the cases, human traffickers who smuggled minor children were apprehended short of delivering the children to their ultimate destination. In all cases, a parent, if not both parents, of the children was in this country illegally. That parent initiated the conspiracy to smuggle the minors into the country illegally. He or she also funded the conspiracy. In each case, the DHS completed the criminal conspiracy, instead of enforcing the laws of the United States, by delivering the minors into the custody of the parent living illegally in the United States. In response to the court’s inquiry in this specific case, the Government responded with a copy of the 1997 [Flores settlement agreement] and a copy of a portion of the Homeland Security Act. No other explanation was offered — no doubt because there is no explanation.

Biden in Guatemala in 2014 and the DeSantis Grand Jury. It’s no secret that parents and other family members in the United States of children abroad are paying smugglers to bring those children to the United States, where they can have those children delivered to them by the federal government thanks to the TVPRA and the Flores settlement agreement.

In a February 2017 memorandum, then-DHS Secretary John Kelly noted that approximately 60 percent of the 155,000 UACs who were apprehended at the border in the previous three years had been “placed in the care of one or more parents illegally residing in the United States”.

That’s a problem, not least of all because smugglers are really bad people, and unfit to care for the minors entrusted to their custody. You don’t have to trust me on this point, however, because as then-Vice President Joe Biden explained following a June 2014 meeting in Guatemala City to discuss a then-UAC surge:

The United States, to state the obvious, is greatly concerned by the startling number of unaccompanied minors that — children and teenagers who are making a very perilous journey through Central America to reach the United States. These are some of the most vulnerable migrants that ever attempt — and many from around the world attempt — to come to the United States. They’re among the most vulnerable. And the majority of these individuals rely — we estimate between 75 and 80 percent — rely on very dangerous, not-nice, human-smuggling networks that transport them through Central America and Mexico to the United States.

These smugglers — and everyone should know it, and not turn a blind eye to it — these smugglers routinely engage in physical and sexual abuse, and extortion of these innocent, young women and men by and large.

And they profit from the misery of these children and teenagers; these desperate, desperate young people. [Emphasis added.]

Despite this fact, the Biden administration has done little to stop the smuggling of UACs by violent, rapacious, “very dangerous, not-nice, human-smuggling networks”. It may go after a handful of smugglers like Nava-Martinez, but that’s about it. It does nothing about those who pay the smugglers bringing those kids.

One official who is doing something is Florida Governor Ron DeSantis (R). In June, he used his powers under Florida law to ask that a state grand jury be convened to examine various immigration-related “crimes and wrongs” residents and local officials there may have engaged in.

One of the targets of that grand jury are the family members who have paid smugglers to bring unaccompanied alien children into the Sunshine State. That grand jury has been convened and should announce its findings and charges — if any — in the next few months.

Confusion and Mixed Messaging. Given Biden’s and Judge Hanen’s clearly expressed concerns and DeSantis’ grand jury, why isn’t the federal government doing anything to crack down on those in the United States who are paying smugglers to bring children and other illegal migrants here?

The obvious answer is confusion and mixed messaging. The Flores settlement agreement and section 235 of the TVPRA essentially invite parents to pay violent rapists to bring their kids here. Again — that’s not my assessment of the smugglers, it’s Joe Biden’s, circa 2014.

I am not a big proponent of creating new crimes, let alone federal ones. In his 2011 best-seller, “Three Felonies a Day”, criminal defense attorney Harvey Silverglate described just how many statutory offenses there are and how many even the most “law-abiding” among us transgress.

That said, Congress should make clear to both prosecutors and potential offenders that paying money to have a friend or loved one smuggled to this country is a crime. If you had never heard of 18 U.S.C. § 2 or Pinkerton liability before, ask yourself how many Patricia Elizabeth Salmeron Santoses haven’t, either.

As the United Nations (of all organizations) has explained: “The absence or inadequacy of national legislation to address the smuggling of migrants in many parts of the world often means that smugglers of migrants can continue to commit the crime with little fear of being brought to justice.”

Those smugglers are in it for the money, so cutting off that money at the source is key to bringing this scourge to heel. For that reason, Congress should take the U.N. at its word and clearly and concisely criminalize the specific act of paying smugglers to bring others to the United States. That’s the best way to protect what Joe Biden has termed “the most vulnerable migrants”.