The United States Code contains several federal statutes concerning criminal offenses of “aliens” or “illegal aliens.” The most common ones known to the public are illegal re-entry (after deportation), which is found at Title 8 U.S.C. §1326, and alien smuggling, or “immigrant smuggling,” as it is sometimes called, at Title 8 U.S.C. §1324.
The federal statutes that criminalize activities towards aliens are found in and near §§1324 – 1327 of Title 8 of the U.S. Code. These cases are “federal cases,” and thus, are prosecuted by the United States Attorney’s Offices, and usually they are investigated by agents of the U.S. Customs and Border Protection, U.S. Border Patrol, U.S. Immigration and Customs Enforcement (“ICE”), and/or other areas of U.S. Homeland Security.
These cases are prosecuted by the United States Attorney’s Office, that is, the federal prosecutor’s office, yet they are different from other federal criminal cases in that the defendants in these cases often, or usually, are deportable themselves after criminal prosecution. In such a situation, the ICE will have a “hold” on the defendant in the criminal case, which does not allow the defendant to be released if he/she posts a bond on the criminal case. Rather, the immigration hold will prevent the defendant’s release by transferring him/her to the custody of ICE, where his/her issue of deportation will be addressed. If the administrative judge in the immigration deportation matter issues an order of deportation, then the defendant in the criminal case will be deported after serving a sentence of imprisonment in that criminal case.
Charges
Criminal charges from illegally transporting, smuggling, or harboring aliens are found together in the U.S. Code. The most common and frequently used statutes for such violations are the following:
- Bringing Aliens at a Place Other Than a Port of Entry — 8 U.S.C. §1324(a)(1);
- Bringing Aliens in Any Manner Whatsoever – 8 U.S.C. §1324(a)(2);
- Transporting/Moving Aliens – 8 U.S.C. §1324(a)(1);
- Concealing, Harboring, or Shielding Aliens from Detection – 8 U.S.C. §1324(a)(1);
- Encouraging or Inducing Aliens – 8 U.S.C. §1324(a)(1);
- Conspiracy to Commit Any Alien Smuggling or Transporting (as listed above) – 8 U.S.C. §1324(a)(1);
- Aiding and Abetting Smuggling / Transporting Aliens – 8 U.S.C. §1324(a)(1);
- Improper Entry by Alien (Improper Time or Place) – 8 U.S.C. §1325(a);
- Marriage Fraud – 8 U.S.C. §1325(b);
- Immigration-related Entrepreneurship Fraud – 8 U.S.C. §1325(d);
- Reentry After Deportation – 8 U.S.C. §1326
- Aiding or Assisting Certain Aliens to Enter – 8 U.S.C. §1327
- Unlawful Employment of Aliens – 8 U.S.C. §1324a
Proving the Criminal Immigration Charges
Once a person is formally charged (indicted) for a criminal charge related to immigration issues, then the U.S. Attorney has to prove the allegations beyond a reasonable doubt, as in any criminal case. The following lists contain the elements of each crime listed above, and/or the wording of these charges listed above found in the statute for each one in Title 8 of the U.S. Code.
Bringing Aliens at a Place Other Than a Port of Entry — 8 U.S.C. §1324(a)(1)
Any person who knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien.
Bringing Aliens in Any Manner Whatsoever – 8 U.S.C. §1324(a)(2)
Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien shall, for each alien in respect to whom a violation of this paragraph occurs—be fined in accordance with Title 18 or imprisoned not more than one year, or both.
Transporting/Moving Aliens – 8 U.S.C. §1324(a)(1)
Any person who knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law.
Concealing, Harboring, or Shielding Aliens from Detection – 8 U.S.C. §1324(a)(1)
Any person who knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation.
Encouraging or Inducing Aliens – 8 U.S.C. §1324(a)(1)
Any person who encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.
Conspiracy to Commit Any Alien Smuggling or Transporting (as listed above) – 8 U.S.C. §1324(a)(1)
Any person engages in any conspiracy to commit any of the preceding acts.
Aiding and Abetting Smuggling / Transporting Aliens – 8 U.S.C. §1324(a)(1)
Any person who aids or abets the commission of any of the preceding acts.
Improper Entry by Alien (Improper Time or Place) – 8 U.S.C. §1325(a)
Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter s or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.
Marriage Fraud – 8 U.S.C. §1325(b)
Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.
Immigration-related Entrepreneurship Fraud – 8 U.S.C. §1325(d)
Any individual who knowingly establishes a commercial enterprise for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, fined in accordance with title 18, or both.
Reentry After Deportation – 8 U.S.C. §1326
Any alien who
(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission; or (B) with respect to an alien previously denied admission and removed.
Aiding or Assisting Certain Aliens to Enter – 8 U.S.C. §1327
Any person who knowingly aids or assists any alien inadmissible… to enter the United States, or who connives or conspires with any person or persons to allow, procure, or permit any such alien to enter the United States, shall be fined under title 18, or imprisoned not more than 10 years, or both.
Unlawful Employment of Aliens – 8 U.S.C. §1324a
It is unlawful for a person or other entity—
(A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to such employment, or
(B) to hire for employment in the United States an individual without complying with the requirements of subsection (b) of this section or (ii) if the person or entity is an agricultural association, agricultural employer, or farm labor contractor (as defined in section 1802 of title 29), to hire, or to recruit or refer for a fee, for employment in the United States an individual without complying with the requirements of subsection (b) of this section.
Practical Use of Charges
Often, people think of smuggling of immigrants when they hear of criminal immigration cases, yet there are a variety of criminal charges as seen herein. However, many U.S. Attorney’s Offices very selectively or rarely bring charges, such as Illegal Re-entry After Deportation. Many “smuggling” cases are brought after evidence shows that a person or persons take money to bring illegal aliens into the United States, doing so using enclosed containers and/or under inhumane conditions. There are also several other statutes that are used to indict for these activities, as for example, you will occasionally see a Marriage Fraud indictment, or a Harboring Aliens indictment.
Other charges that may overlap with immigration issues that result in criminal charges are passport fraud, false statements to obtain a passport, conspiracy to distribute controlled substances, conspiracy to import controlled substances, as well as others.
Sentencing
Persons convicted of alien smuggling, harboring illegal aliens, marriage fraud, or any immigration matter that becomes a federal criminal immigration case is subject to sentencing by the U.S. Sentencing Guidelines, taking into consideration the recommendation punishment range from the offense level calculations of the U.S. Sentencing Guidelines.
