Federal Immigration Crimes

If you or a family member has been arrested on a federal immigration charge, here is what the main charges mean and what penalties they carry. In short, it is a federal crime to enter the country illegally, to come back after being deported, and to knowingly help someone else enter or stay illegally. Penalties range from up to 6 months for a first illegal entry to 20 years or more in some reentry, smuggling, and document fraud cases.

Criminal Center is a federal criminal defense firm, and attorney Brandon Sample represents people accused of federal crimes, including immigration crimes. Keep in mind that a criminal conviction can also cause serious immigration problems, like removal (deportation) or being barred from coming back. Those questions are decided in a separate immigration process, so you should also talk with an immigration lawyer.

How do federal immigration charges usually come up?

U.S. immigration law is complicated, and it can be hard to understand for anyone who has not worked with it. In general, entering the U.S. unlawfully is a crime. But the government most often finds immigration offenses while it is looking into some other alleged crime.

For example, if an undocumented immigrant is arrested for driving while intoxicated, a fingerprint check may quickly show that the person is not in the country legally, or was removed before. So an immigration charge is often filed together with, or after, a charge for a different crime, and that can lead to more serious penalties. This is why it is important to have a criminal defense lawyer and also to get advice from an immigration lawyer.

Is it a crime to enter the U.S. illegally?

Yes. The basic illegal entry crime is in Title 8, Section 1325 of the U.S. Code (8 U.S.C. § 1325), which is also Section 275 of the Immigration and Nationality Act (INA). Under § 1325(a), a non-citizen commits this crime if he or she:

• Enters or tries to enter the U.S. at any time or place other than one set by immigration officers (in other words, not at an official port of entry);
• Dodges examination or inspection by immigration officers; or
• Tries to enter, or gets in, by a willfully false or misleading statement, or by willfully hiding an important fact.

What about marriage fraud and immigration business fraud?

The same law makes it a crime to knowingly enter into a fake marriage to get around immigration laws. Under 8 U.S.C. § 1325(c), marriage fraud carries up to 5 years in federal prison, a fine of up to $250,000, or both. That makes it one of the more heavily punished crimes in § 1325.

It is also a crime to knowingly set up a business to get around immigration laws. Under 8 U.S.C. § 1325(d), this carries up to 5 years in federal prison and a fine.

Is it a crime to help someone enter or stay illegally?

Yes. Under 8 U.S.C. § 1324, it is a crime to bring someone into the U.S. outside a port of entry, to move them around inside the country, to hide or “harbor” them, or to encourage them to come or stay, when you know or recklessly ignore that they are here illegally.

Each person counts as a separate offense. Depending on the facts, the maximum is 5 or 10 years per person. It rises to 20 years if someone is seriously hurt or put in danger, and up to life (or death) if someone dies.

Some smuggling cases carry a mandatory minimum, meaning a prison term the judge cannot go below. Under 8 U.S.C. § 1324(a)(2)(B), bringing someone in for money or knowing they plan to commit a serious crime carries at least 3 years for a first or second offense, and at least 5 years after that.

What are the penalties for illegal entry?

The penalties go up based on the person’s record. Under 8 U.S.C. § 1325(a), a first offense is a misdemeanor (a less serious crime). It carries up to 6 months in federal prison, a fine, or both.

Deportation is a common result for people convicted of immigration crimes. But a criminal judge does not order it. Removal (the legal term for deportation) is decided in a separate process run by immigration authorities and immigration courts. In practice, a person convicted of a first illegal entry is often turned over to immigration authorities for removal after the criminal case ends. If the person is also charged with another crime, he or she may first serve a prison sentence for that crime and then face removal after the sentence is over.

If the person has already been convicted of illegal entry before, a second or later offense is a felony under § 1325(a). It carries up to 2 years in federal prison. After the sentence ends, the person can still be removed to his or her home country. In repeat cases, prison time is more likely than going straight to removal. A lawyer can work to avoid or shorten a prison sentence, though no result can be promised.

There is also a separate civil penalty, which is not a criminal fine. Under 8 U.S.C. § 1325(b), a person caught entering or trying to enter at a place other than a port of entry can be charged at least $50 and up to $250 for each entry or attempted entry, or twice that for someone who was already given this civil penalty before. It is added on top of any criminal penalty.

Even when the money penalty is small, an immigration conviction can seriously hurt your chances of ever entering the U.S. legally again. It can also limit your job options.

What if someone comes back after being deported?

Coming back, or being found in the U.S., after being deported or removed is a separate and more serious crime called illegal reentry. It is covered by 8 U.S.C. § 1326.

The maximum prison term depends mostly on the person’s criminal record before the removal:

• No qualifying prior record: up to 2 years.
• Removal after three or more misdemeanors involving drugs or crimes against a person, or after a felony: up to 10 years.
• Prior removal after an “aggravated felony” (a long list of serious crimes defined in immigration law): up to 20 years.

Is using a fake visa or green card a federal crime?

Making, selling, using, or owning a fake visa, green card, or other immigration document is a crime under 18 U.S.C. § 1546. So is lying under oath on an immigration application.

A first or second offense usually carries up to 10 years. The maximum is 15 years for other cases, 20 years if it was done to help drug trafficking, and 25 years if it was done to help terrorism.

Do you have rights in a criminal case if you are undocumented?

Yes. The federal immigration process is complex, and the government treats immigration crimes very seriously. But even if you came to the U.S. without papers, you still have rights and protections under U.S. law. In a criminal case, those include the right to a lawyer and the right to stay silent.

Immigration prosecutions get a lot of public attention, and enforcement trends can change quickly. That can make an immigration charge even more stressful. Acting early gives your lawyer more time to look at your case and protect your rights.

What should you do next?

Book a consultation to talk it through with Brandon Sample.

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