Immigration-Related Criminal Offenses

Immigration-Related Criminal Offenses

Updated January 31, 2023
Immigration-Related Criminal Offenses
The Immigration and Nationality Act (INA) governs the
illegal reentry when the defendant was immediately
admission, removal, and presence of individuals who are
apprehended when stepping on U.S. soil and was thus never
not citizens or nationals of the United States (i.e., “aliens”
free from official restraint); see also United States v.
as defined in the INA). Congress has established criminal
Lombera-Valdovinos, 429 F.3d 927 (9th Cir. 2005)
sanctions for certain conduct that undermines immigration
(overturning conviction for attempted illegal reentry
rules. Immigration-related cases make up a significant
because the alien crossed with the specific intent to be
portion of the federal criminal caseload, accounting for
imprisoned). Some circuits have neither explicitly endorsed
29.6% of all cases in Fiscal Year 2021. See U.S.
nor rejected the doctrine. See, e.g., United States v. Rojas,
SENTENCING COMMISSION, FISCAL YEAR 2021 OVERVIEW
770 F.3d 366, 368 (5th Cir. 2014) (deciding case without
OF FEDERAL CRIMINAL CASES 18 (2022). Immigration-
reaching the question of whether the circuit should
related crimes generally cover three categories of conduct:
recognize the official restraint doctrine).
(1) improper entry and reentry; (2) smuggling, transporting,
and harboring aliens; and (3) immigration-related fraud.
Bringing in, Harboring, Transporting, or
Encouraging Aliens
Improper Entry and Illegal Reentry
Several provisions in the INA criminalize activities that
Unlawfully entering the United States may result in
involve smuggling aliens into the United States,
criminal sanction with enhanced penalties for illegal
transporting aliens within the United States, or otherwise
reentry.
assisting unlawfully present aliens to remain in the country.
Located in 8 U.S.C. § 1324, these offenses typically
Improper Entry: 8 U.S.C. § 1325(a) makes it a criminal
constitute felonies and may sometimes carry lengthy prison
offense to enter or attempt to enter the United States
terms, including enhanced penalties when the offense is
without authorization. A violation may result in a fine and
performed for commercial advantage or private financial
imprisonment for up to six months for a first offense and up
gain. In a few instances, such as alien smuggling offenses
to two years’ imprisonment for a subsequent violation. An
resulting in serious harm to or the death of a person, the
alien may commit improper entry in three ways:
maximum available penalty may be life imprisonment or
1. entering or attempting to enter the United
death. Additionally, any vehicle, vessel, or aircraft that was
States at any time or place other than as
used in the commission of the crime or otherwise traceable
designated by immigration officers;
to gross proceeds from a violation of 8 U.S.C. § 1324 may
2. eluding examination or inspection by
be seized and subject to forfeiture. Humanitarian concerns
immigration officers; or
are not a defense to a charge of transporting or harboring
aliens. United States v. Aguilar, 883 F.2d 662 (9th Cir.
3. attempting to enter or obtaining entry by a
1989); see also Dimova v. Holder, 783 F.3d 30 (1st Cir.
willfully false or misleading
2015) (reasoning that the statute’s plain language includes
representation or the willful concealment
no exception for humanitarian assistance).
of a material fact.
Illegal Reentry: 8 U.S.C. § 1326 makes it a felony for an
Smuggling: 8 U.S.C. § 1324(a)(1)(A)(i) makes it a crime
alien previously denied admission or removed from the
for any individual to bring or attempt to bring a person to
United States (or who departed the country while an order
the United States between ports of entry knowing that
of removal was outstanding) to enter, attempt to enter, or be
person is an alien. The individual may be convicted even if
found in the United States without prior authorization.
the smuggled alien had received prior authorization to
Absent certain factors, a conviction carries a punishment of
enter, come to, or reside in the United States and regardless
a fine and imprisonment for up to two years. Aliens may
of any future official action that might be taken with respect
face enhanced penalties if they were previously removed or
to the alien. The defendant must have made an affirmative
excluded on certain grounds or had committed specified
and knowing act of help or assistance. An individual’s mere
crimes. See 8 U.S.C. § 1326(b). In some cases, the
presence during the commission of the crime is insufficient.
maximum penalty may be up to 20 years’ imprisonment.
See Altamirano v. Gonzalez, 427 F.3d 586 (9th Cir. 2005).
Some reviewing courts have held that the alien must have
Transporting: To be guilty of the crime of transporting
entered “free from official restraint,” though the statutory
under 8 U.S.C. § 1324(a)(1)(A)(ii), a person must—
language does not expressly use that term. See United
knowing or in reckless disregard of the fact that an alien
“has
States v. Gaspar-Miguel, 947 F.3d 632, 633-34 (10th Cir.
come to, entered, or remains in the United States in
violation of law”—
2020) (detailing history of the concept of “freedom from
have knowingly transported the alien for
official restraint”); United States v. Pacheco-Medina, 212
the purpose of helping him or her further such violation of
F.3d 1162, 1166 (9th Cir. 2000) (reversing conviction for
law. A defendant acts with “reckless disregard” if he or she
is aware of but consciously disregards facts and
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Immigration-Related Criminal Offenses
circumstances indicating that the person being transported
inadmissible on health-related grounds (8 U.S.C. § 1322);
is an alien who had unlawfully entered or remained in the
unlawful bringing of aliens into the United States by a
United States. See, e.g., United States v. Tydingco, 909 F.3d
carrier (8 U.S.C. § 1323); knowingly hiring 10 or more
297 (9th Cir. 2018).
aliens within a 12-month period while having actual
knowledge that they were unlawfully brought to the United
Harboring: 8 U.S.C. § 1324(a)(1)(A)(iii) penalizes any
States (8 U.S.C. § 1324(a)(3)); and aiding or assisting aliens
person who—knowing or in reckless disregard of the fact
to enter the country who are inadmissible for certain
that an alien has come to, entered, or remains in the United
criminal, subversive, or terrorist activity (8 U.S.C. § 1327).
States in violation of the law—conceals, harbors, or shields
from detection an alien in any place, including any building
Immigration-Related Fraud
or means of transportation. Likewise, attempts to engage in
the proscribed activity are punishable under the provision.
Visa Fraud and False Statements: Under 18 U.S.C.
Courts have generally defined harboring as conduct that
§ 1546, it is a felony to knowingly forge, counterfeit, alter,
substantially facilitates an alien’s unlawful presence in the
or falsely make visas, permits, and other immigration-
United States and prevents authorities from detecting the
related documents, as well as to knowingly use a false
alien’s unlawful presence. See, e.g., United States v. Kim,
identification document or make a false attestation.
193 F.3d 567 (2d Cir. 1999). Any surreptitious shielding
Offenders may be subject to a criminal penalty of a fine and
violates this provision, including giving shelter from or
a term of imprisonment ranging from 10 to 25 years.
warning as to the presence of immigration officers. See,
Marriage Fraud: Under 8 U.S.C. § 1325(c), marriage fraud
e.g., United States v. Rubio-Gonzalez, 674 F.2d 1067 (5th
is committed by a person who knowingly enters into a
Cir. 1982) (holding that a warning given to unlawfully
marriage to evade immigration rules. A conviction carries a
present alien workers about a federal immigration
penalty of a fine and imprisonment for no more than five
enforcement inspection constituted concealing or
years.
shielding).
False Claim of U.S. Citizenship: Under 18 U.S.C. § 911,
Inducing or Encouraging: 8 U.S.C. § 1324(a)(1)(A)(iv)
whoever falsely and willfully represents to be a U.S. citizen
bars persons from encouraging or inducing an alien to come
may be subject to a fine and imprisonment for up to three
to, enter, or reside in the United States while knowing or in
years.
reckless disregard of the fact that the alien’s entry or
presence is or will be in violation of law. See, e.g., United
Passport Fraud: 18 U.S.C. § 1542 makes it a criminal
States v. Anderton, 901 F.3d 279 (5th Cir. 2018) (affirming
offense to willfully and knowingly make a false statement
conviction where an employer knew workers were not
in a passport application or willfully and knowingly use or
lawfully present, continued to employ them, facilitated
attempt to use a passport secured by a false statement. This
housing, and helped them obtain public benefits). There has
offense carries a penalty of a fine and term of imprisonment
been some debate over what conduct falls within this
ranging from 10 to 25 years.
provision and whether the provision is overbroad in
violation of the Free Speech Clause of the First
Procurement of Citizenship or Naturalization Unlawfully:
Amendment. See United States v. Hansen, 25 F.4th 1103,
18 U.S.C. § 1425 makes it a felony to knowingly procure or
1107 (9th Cir. 2022), cert. granted, 2022 WL 17544995
attempt to procure, contrary to law, the naturalization of
(Dec. 9, 2022); see also CRS Legal Sidebar LSB10705,
any person. This offense carries a fine and a term of
Ninth Circuit Holds that Criminal Penalties for
imprisonment ranging from 10 to 25 years.
Encouraging or Inducing Illegal Immigration Violate First
Immigration-related identity theft may be prosecuted under
Amendment, by Kelsey Y. Santamaria.
laws of general applicability targeting identity theft or
Bringing to the United States: It is a criminal offense under
making false statements to the government. See 18 U.S.C.
8 U.S.C. § 1324(a)(2) for any person to—knowing or in
§§ 1001, 1028A.
reckless disregard of the fact that an alien had not received
Other Offenses
prior authorization to come to, enter, or reside in the United
States—bring or attempt to bring an alien to the United
There are additional immigration-related offenses in federal
States in any manner, regardless of whether any future
statutes, such as high-speed flight from an immigration
official action may occur with respect to that alien. See,
checkpoint (18 U.S.C. § 758); importation, holding, or
e.g., United States v. Yoshida, 303 F.3d 1145 (9th Cir.
keeping of an alien for prostitution or “any other immoral
2002) (affirming conviction where defendant guided aliens
purpose” (8 U.S.C. § 1328); failure to depart after a final
to aircraft heading to the United States). A conviction for
order of removal (8 U.S.C. § 1253(a)); willful failure to
“bringing to” may result in a fine and imprisonment up to
comply with terms of release under supervision (8 U.S.C.
one year. A vehicle, vessel, or aircraft used in or traceable
§ 1253(b)); willful failure by an alien to apply for
to the commission of the violation may be subject to
registration and be fingerprinted (8 U.S.C. § 1306(a));
forfeiture. Notably, this is a separate crime from smuggling
failure to notify of a change of address (8 U.S.C.
under 8 U.S.C. § 1324(a)(1)(A)(i), which applies when the
§ 1306(b)); making fraudulent statements in application for
unlawful entry is between ports of entry.
registration (8 U.S.C. § 1306(c)); and counterfeiting
Other Offenses: Other offenses related to alien smuggling,
photographs or prints in any alien registration certificate or
harboring, or transporting include failure by owners,
card (8 U.S.C. § 1306(d)).
officers, or agents of any vessel to prevent the landing of an
Kelsey Y. Santamaria, Legislative Attorney
alien (8 U.S.C. § 1321); bringing in aliens who are
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Immigration-Related Criminal Offenses

IF11410

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https://crsreports.congress.gov | IF11410 · VERSION 2 · UPDATED