Alien Smuggling, Harboring Aliens and Other Immigration Crimes
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), and alien smuggling, or “immigrant smuggling,” as it is sometimes called.
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. 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, yet they are different from other federal criminal cases. This means that the defendants in these cases are deportable from the United States after criminal prosecution. ICE will have a detainer, or “hold,” on the defendant in the criminal case. The hold does not allow the defendant to be released on bond or when the criminal case is finished. Rather, the immigration hold will prevent the defendant’s release by transferring him/her to the custody of ICE. There, his/her issue of deportation will be addressed. If the immigration service judge issues an order of deportation, then the defendant will be deported after serving a sentence of imprisonment in the criminal case.
Criminal charges – from illegally transporting, smuggling, marriage fraud, 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
Common Immigration / Alien Charges
Indictments charging federal criminal offenses concerning immigration / alien activities are often Alien Smuggling or Alien Transporting, Illegal Re-Entry After Deportation, Marriage Fraud, and Harboring Aliens.
Alien Smuggling or Transportation charges are usually the result of transporting persons who enter into the United States without citizenship. The transportation or smuggling activities for these charges can occur before, or well after, the border crossing.
Illegal Re-Entry After Deportation is based upon an entry into the United States after the person has previously been deported.
Marriage Fraud is usually based upon a person without citizenship marrying a United States citizen in order to remain in the United States. Prosecutions of these cases are based upon various factors, including the length of the marriage before a divorce, if the “married” persons actually live as husband and wife after the marriage ceremony, if they held themselves out to the community as husband and wife, etc. In other words, does the evidence show that the marriage was a sham marriage?
A conspiracy to commit marriage fraud can be based upon the citizen agreeing to marry the non-citizen, especially if the citizen is paid to do so. The prosecution would look at the same type of evidence, as well as payment. That is, was there a divorce soon after the marriage ceremony, did the husband and wife live together as husband and wife, did the couple represent themselves as husband and wife, etc?
Harboring an alien is based upon hiding the non-citizen alien or helping the illegal alien avoid detection and arrest.
Any person convicted of immigration / alien criminal charges in federal courts is sentenced as in any other federal case. Federal sentencings are affected greatly by the U.S. Sentencing Guidelines, which make a potential imprisonment recommendation. Even if the Sentencing Guidelines recommend imprisonment, that fact does not mean that the person charged will receive the recommended punishment.