January 21, 2020
Immigration-Related Criminal Offenses
The Immigration and Nationality Act (INA) governs the
2004). But an alien may still be charged with attempting to
admission, removal, and presence of non-U.S. nationals
unlawfully enter (or reenter) the country. See, e.g., United
(aliens). Congress has established criminal sanctions for
States v. Cabral, 252 F.3d 520 (1st Cir. 2001) (upholding
certain conduct that undermines immigration rules.
illegal reentry conviction of previously removed alien who
Immigration-related cases make up a significant portion of
was arrested at port of entry for making a false claim of
the federal criminal caseload. See U.S. SENTENCING
residency in an attempt to reenter the country).
COMMISSION, FISCAL YEAR 2018 OVERVIEW OF FEDERAL
CRIMINAL CASES 12 (2019). Immigration-related crimes
Bringing in, Harboring, Transporting, or
generally cover three categories of conduct: (1) improper
Encouraging Aliens
entry and reentry; (2) the smuggling, transporting, and
Several provisions in federal law criminalize activities that
harboring of aliens; and (3) immigration-related fraud.
involve smuggling aliens into the United States,
transporting aliens within the United States, or otherwise
Improper Entry and Illegal Reentry
assisting unlawfully present aliens to remain in the country.
Unlawfully entering the United States may result in
Primarily located in 8 U.S.C. § 1324, these offenses
criminal penalties with enhanced penalties for illegal
typically constitute felonies and may sometimes carry
reentry.
lengthy prison terms, including an enhanced penalty when
the offense is performed for commercial advantage or
Improper Entry: 8 U.S.C. § 1325 makes it a criminal
private financial gain. In a few instances, such as alien
offense to enter or attempt to enter the United States
smuggling offenses resulting in serious harm to or the death
without authorization. A violation may result in a fine and
of a person, the maximum available penalty may be life
imprisonment for up to six months for a first offense and up
imprisonment or death. Additionally, any vehicle, vessel, or
to two years for a subsequent violation. An alien may
aircraft that was used in the commission of the crime or
commit improper entry in three ways:
otherwise traceable to gross proceeds from a violation of 8
U.S.C. § 1324 may be seized and subject to forfeiture.
entering or attempting to enter the United States at any
Humanitarian concerns are not a defense to a charge of
time or place other than a designated port of entry;
transporting or harboring aliens. United States v. Aguilar,
883 F.2d 662 (9th Cir. 1989); see also Dimova v. Holder,
eluding examination or inspection by immigration
783 F.3d 30 (1st Cir. 2015) (reasoning that the statute’s
officers; or
plain language does not contain an exception for
humanitarian assistance).
attempting to enter or obtaining entry by a willfully false
or misleading representation or the willful concealment
Smuggling: 8 U.S.C. § 1324(a)(1)(A)(i) makes it a crime
of a material fact.
for any individual to bring or attempt to bring a person to
the United States between ports of entry, knowing that
Illegal Reentry: 8 U.S.C. § 1326 makes it a felony for an
person is an alien. The individual may be convicted
alien previously denied admission or removed from the
regardless of whether the smuggled alien had received prior
United States, or who departed the country while an order
authorization to enter, come to, or reside in the United
of removal was outstanding, to enter, attempt to enter, or be
States and regardless of any future official action that might
found in the United States without prior authorization.
be taken with respect to the alien. The defendant must have
Absent certain factors, a conviction carries a punishment of
made an affirmative and knowing act of help or assistance;
a fine and a term of imprisonment for up to two years.
an individual’s mere presence during the commission of the
Aliens may face enhanced penalties if they were previously
crime is insufficient. See Altamirano v. Gonzalez, 427 F.3d
removed or excluded on certain grounds, or had committed
586 (9th Cir. 2005).
specified crimes. See 8 U.S.C. § 1326(b). In some cases, the
maximum penalty may be up to 20 years’ imprisonment.
Transporting: To be guilty of the crime of transporting
under 8 U.S.C. § 1324(a)(1)(A)(ii), a person—knowing or
To establish that an alien unlawfully entered the United
in reckless disregard of the fact that an alien was not
States, some reviewing courts have held that the alien must
lawfully in the United States—knowingly transported the
have entered “free from official restraint.” United States v.
alien for the purpose of helping him or her remain in the
Pacheco-Medina, 212 F.3d 1162 (9th Cir. 2000) (reversing
country unlawfully. A person acts with “reckless disregard”
conviction for illegal reentry where the defendant was
if he or she is aware of but consciously disregards facts and
immediately apprehended when stepping on U.S. soil and
circumstances indicating that the person being transported
therefore was never free from official restraint); see also
was an alien who had unlawfully entered or remained in the
United States v. Morales-Palacios, 369 F.3d 442 (5th Cir.
https://crsreports.congress.gov
Immigration-Related Criminal Offenses
United States. See, e.g., United States v. Tydingco, 909 F.3d
Offenses Involving Immigration-Related
297 (9th Cir. 2018).
Fraud
Federal law also penalizes fraudulent conduct that
Harboring: 8 U.S.C. § 1324(a)(1)(A)(iii) penalizes any
undermines the immigration regulatory scheme.
person who—knowing or in reckless disregard of the fact
that an alien has come to, entered, or remains in the United
Visa Fraud and False Statements: Under 18 U.S.C. §
States in violation of the law—conceals, harbors, or shields
1546, it is a felony to knowingly forge, counterfeit, alter, or
from detection an alien in any place, including any building
falsely make visas, permits, and other immigration-related
or means of transportation. Attempts to engage in the
documents, as well as to knowingly use a false
proscribed activity are likewise punishable under the
identification document or make a false attestation.
provision. Courts have generally recognized harboring as
Offenders may be subject to a criminal penalty of a fine and
conduct that substantially facilitates an alien’s unlawful
a term of imprisonment ranging from 10 to 25 years.
presence in the United States and prevents authorities from
detecting the alien’s unlawful presence. See, e.g., United
Marriage Fraud: Under 8 U.S.C. § 1325(c), marriage fraud
States v. Kim, 193 F.3d 567 (2d Cir. 1999). Any
is committed by a person who knowingly enters into a
surreptitious shielding constitutes harboring, including
marriage to evade immigration rules. A conviction carries a
giving shelter from or warning as to the presence of
penalty of a fine and imprisonment for no more than five
immigration officers. See, e.g., United States v. Rubio-
years.
Gonzalez, 674 F.2d 1067 (5th Cir. 1982) (holding that a
warning given to unlawfully present alien workers about a
False Claim of U.S. Citizenship: Under 18 U.S.C. § 911,
federal immigration enforcement inspection constituted
whoever falsely and willfully represents to be a U.S. citizen
concealing or shielding).
may be subject to a fine and imprisonment for up to three
years.
Inducing or Encouraging: 8 U.S.C. § 1324(a)(1)(A)(iv)
bars persons from encouraging or inducing an alien to come
Passport Fraud: 18 U.S.C. § 1542 makes it a criminal
to, enter, or reside in the United States while knowing or in
offense to willfully and knowingly make a false statement
reckless disregard of the fact that the alien’s entry or
in a passport application or willfully and knowingly use or
presence is or will be in violation of law. See, e.g., United
attempt to use a passport secured by a false statement. This
States v. Anderton, 901 F.3d 279 (5th Cir. 2018) (affirming
offense carries a penalty of a fine and term of imprisonment
conviction where the employer knew workers were not
ranging from 10 to 25 years.
lawfully present, continued to employ them, facilitated
housing, and assisted aliens in obtaining public benefits).
Procurement of Citizenship or Naturalization Unlawfully:
18 U.S.C. § 1425 makes it a felony to knowingly procure or
Bringing to the United States: It is a criminal offense under
attempt to procure, contrary to law, the naturalization of
8 U.S.C. § 1324(a)(2) for any person to—knowing or in
any person. This offense carries a fine and a term of
reckless disregard of the fact that an alien had not received
imprisonment ranging from 10 to 25 years.
prior authorization to come to, enter, or reside in the United
States—bring or attempt to bring an alien to the United
Immigration-related identity theft may be prosecuted under
States in any manner, regardless of whether any future
laws of general applicability targeting identity theft or
official action may occur with respect to that alien. See,
making false statements to the government. See 18 U.S.C.
e.g., United States v. Yoshida, 303 F.3d 1145 (9th Cir. 2002)
§§ 1001, 1028A.
(affirming conviction where defendant guided aliens to
aircraft heading to the United States). A conviction for
Other Offenses
“bringing to” may result in a fine and imprisonment up to
There are numerous other immigration-related offenses in
one year. A vehicle, vessel, or aircraft used in or traceable
federal statutes, such as high speed flight from an
to the commission of the violation may be subject to
immigration checkpoint (18 U.S.C. § 758); importation,
forfeiture. Notably, this is a separate crime from smuggling
holding, or keeping of an alien for prostitution or “any other
under 8 U.S.C. § 1324(a)(1)(A)(i), which applies when the
immoral purpose” (8 U.S.C. § 1328); failure to depart after
unlawful entry is between ports of entry.
a final order of removal (8 U.S.C. § 1253(a)); willful failure
to comply with terms of release under supervision (8 U.S.C.
Other Offenses: Other offenses related to alien smuggling,
§ 1253(b)); willful failure by an alien to apply for
harboring, or transporting include failure by owners,
registration and be fingerprinted (8 U.S.C. § 1306(a));
officers, or agents of any vessel to prevent the landing of an
failure to notify of a change of address (8 U.S.C. §
alien (8 U.S.C. § 1321); bringing in aliens who are
1306(b)); making fraudulent statements in application for
inadmissible on health-related grounds (8 U.S.C. § 1322);
registration (8 U.S.C. § 1306(c)); and counterfeiting
unlawful bringing of aliens into the United States by a
photographs or prints in any alien registration certificate or
carrier (8 U.S.C. § 1323); knowingly hiring 10 or more
card (8 U.S.C. § 1306(d)).
aliens within a 12-month period while having actual
knowledge that they were unlawfully brought to the United
Kelsey Y. Santamaria, Legislative Attorney
States (8 U.S. Code § 1324(a)(3)); and aiding or assisting
(Constitutional Law)
certain aliens to enter the country who are inadmissible for
certain criminal, subversive, or terrorist activity (8 U.S.C. §
IF11410
1327).
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Immigration-Related Criminal Offenses
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https://crsreports.congress.gov | IF11410 · VERSION 1 · NEW