Immigration Matters

According to the Pew Research Center, there are currently 12.2 million unauthorized immigrants in the United States. Last year, according to ICE, 177,960 of the illegal immigrants that were deported had criminal convictions.

While Visa overstay is not itself one of the immigration crimes, there are a number of immigration-related federal offenses.

IMPROPER ENTRY BY ALIEN

Under 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 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

As commonly known, the immediate relatives of U.S. citizens may obtain permanent residency or Green Card. Marriage fraud occurs when the marriage is contract under false pretenses, in order to avoid the immigration laws of the United States.

Under 8 U.S.C. § 1325(c), 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.

USCIS is also authorized to cancel any citizenship or naturalization certificate in cases where it is deemed that the certificate was illegally obtained or created by fraud.

FRAUD AND MISUSE OF VISAS, PERMITS, AND OTHER DOCUMENTS

Under 18 U.S. Code § 1546,

• whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States (…),
• whoever, personates another, or falsely appears in the name of a deceased individual, or evades or attempts to evade the immigration laws by appearing under an assumed or fictitious name without disclosing his true identity (…),
• whoever knowingly makes under oath, or as permitted under penalty of perjury, knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact (…)

shall be fined or imprisoned not more than 25 years if the offense was committed to facilitate an act of international terrorism, 20 years if the offense was committed to facilitate a drug trafficking crime, 10 years in the case of the first or second such offense, if the offense was not committed to facilitate such an act of international terrorism or a drug trafficking crime, or 15 years in the case of any other offense, or both.

Moreover, whoever uses an identification document, knowing that the document was not issued lawfully for the use of the possessor, an identification document knowing that the document is false, or a false attestation, for the purpose of satisfying a requirement of section 274A(b) of the Immigration and Nationality Act (INA), shall be fined, imprisoned not more than 5 years, or both.

The effects of an immigration fraud conviction under 18 USC 1546 are permanent and extremely serious. Once convicted, the offender is permanently barred from receiving immigration benefits. Under 18 USC 1546, there are several types of immigration fraud.

• Document fraud or identity fraud refers to the making, sale or use of forged identity documents like birth certificates, driver’s licenses, passports, or Social Security cards. It may also involve identity theft and any attempt to procure genuine identity documents through illicit means.
• Benefit fraud is the deliberate misrepresentation, distortion, or omission of facts on an application to get an immigration benefit including legal residency or a valid visa. Because thousands are looking for any means to freely enter, work, or reside in the U.S., benefit fraud attracts schemers, middlemen, and co-conspirators looking to profit from this crime.
• Asylum fraud refers to those who seek refugee status by fraudulent means. Many fraudulent asylum seekers portray themselves as victims of religious or political persecution in their native countries.
• Marriage Fraud refers to anyone who enters into a marriage under false pretenses for the purpose of evading U.S. immigration law.

BRINGING IN AND HARBORING ILLEGAL ALIENS

Under 8 U.S. Code § 1324, 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 be fined or imprisoned not more than one year, or both; or in the case of

1. an offense committed with the intent or with reason to believe that the alien unlawfully brought into the United States will commit an offense against the United States or any State punishable by imprisonment for more than 1 year,
2. an offense done for the purpose of commercial advantage or private financial gain, or
3. an offense in which the alien is not upon arrival immediately brought and presented to an appropriate immigration officer at a designated port of entry,

shall be fined and shall be imprisoned, not more than 10 years, in the case of a first or second violation, not less than 3 nor more than 10 years, and for any other violation, not less than 5 nor more than 15 years.

It is often the case that corporations, companies, and individual citizens seize the chance to exploit the illegal status of illegal immigrants for financial gain. However, employers who blatantly ignore workers’ illegal status may face serious consequences under 8 USC 1324.

Moreover, transporting is a crime that, by its nature, always has witnesses. Like the persons who provide them assistance, these witnesses are guilty of a crime. Unlike the person accused of transporting them, the witnesses do not always face prosecution, buy may face deportation and be immediately returned to their native countries. A court may order a convicted smuggler to pay restitution if the illegal alien smuggled qualifies as a victim under the Victim and Witness Protection Act.

The following are the most common immigration crimes:

• Bringing undocumented aliens to the U.S. without authorization or prior approval.
• Transporting illegal immigrants within the U.S.
• Encouraging foreign nationals to enter the U.S. without authorization.
• Conspiracy to commit and/or aiding the execution of any of the aforementioned acts.
• Harboring aliens is any action that can significantly facilitate an alien’s capacity to stay in the United States illegally. It is unlawful for anyone to harbor, hide, or shield from detection by any means (including building or motor vehicle) a foreign national who is not a legal resident of the U.S. Even if an alien gained legal entry, once they lose legal status those who help him/her stay can be found guilty of harboring.

 

Harboring, transporting, or encouraging entry without financial gain carries a maximum sentence of five years imprisonment. Conspiracy to commit any of these crimes, committing any of these crimes for financial gain, and bringing aliens to the United States carry a penalty of up to ten years of imprisonment.

Any conveyance, including any vessel, vehicle, or aircraft, that has been used in the commission of a violation of 8 U.S.C. 1324, the gross proceeds of such violation, and any property traceable to such conveyance or proceeds, shall be seized and subject to forfeiture.

Provisions under 8 USC 1324

(i) Anyone who knowingly brings or attempts to bring an alien into the U.S. at a place other than a designated port of entry is guilty.

The guilty party will be imprisoned for up to 10 years or up to 20 years if during and in relation to the offense the person causes serious bodily injury or puts in jeopardy the life of any person. The penalty may be death, if any death resulted.

(ii) A person knowing or in or in reckless disregard that an alien has come to, entered, or remained in the U.S. in violation of law and thereafter transports or moves or attempts to move that alien within the U.S., in any way, in furtherance of that alien’s violation of law is guilty.

The penalties are up to 5 years, 10 if done for private financial gain or commercial advantage or up to 20 years if during and in relation to the offense the person causes serious bodily injury or puts in jeopardy the life of any person. The penalty may be death, if any death resulted.

(iii) A person is guilty if they act in knowing or reckless disregard of the fact that an alien has come to, entered, or remained in the U.S. in violation of law, and thereafter conceals, harbors, shields from detection or attempts to do any of the foregoing.

The penalties are up to 5 years, 10 if done for private financial gain or commercial advantage or up to 20 years if during and in relation to the offense the person causes serious bodily injury or puts in jeopardy the life of any person. The penalty may be death, if any death resulted.

(iv) A person who encourages or induces an alien to come to, enter, or reside in the U.S., knowing that such coming to, entry, or residence is in violation of law.

The guilty parties will be punished to up to 5 years, 10 if the offense is done for private financial gain or commercial advantage or up to 20 years if during and in relation to the offense the person causes serious bodily injury or puts in jeopardy the life of any person. The penalty may be death, if any death resulted.

Employing Aliens & Bringing in Aliens for Employment

It is unlawful to hire an alien, to recruit an alien, or to refer an illegal alien for a fee, knowing the illegal alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an illegal alien knowing that the illegal alien is unauthorized to work.

Under title 8 USC 1324 (a)(3)(A), employers are expressly prohibited from hiring at least ten aliens during any one year period knowing that they are undocumented. This offense carries a five year maximum sentence. The maximum sentence in these cases may also be increased to a maximum of 10 years if an offense was part of ongoing commercial enterprise in which groups of aliens were transported in a manner that endangered their lives.

Under 8 USC 1324 (a)(1)(C), it is also illegal for nonprofit or religious organizations to knowingly assist an employer to violate employment sanctions, regardless of claims that their convictions require them to assist illegal aliens. It is a violation of the title for religious denomination having a bona fide nonprofit, religious organization, or the agents or officers of such denomination or organization, to encourage or enable an alien, present in the U.S., to perform the vocation of a minister or missionary as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other basic living expenses, provided the minister or missionary has been a member of the denomination for at least one year.

8 USC 1324 and living with an illegal alien

Merely living with an illegal alien is unlikely to be held a violation of 8 USC 1324. In United States v. Costello, 666 F.3d 1040, 1050 (7th Cir. 2012), Judge Posner concluded:

“Our rejection of equating harboring to providing a place to stay compels the acquittal of the defendant, for on our understanding of the offense no trier of fact could reasonably find that the defendant had “harbored” her boyfriend based on the stipulated facts, or that she had concealed him or shielded him from detection.”

While this decision is only binding in the Seventh Circuit, Judge Posner also noted that: “in the only case we’ve found in which the government prosecuted, for harboring, someone who had merely cohabited with a known illegal alien, United States v. Silveus, 542 F.3d 993, 1003–04 (3d Cir.2008), the government conceded that cohabitation, without more, is not harboring, and the court reversed the defendant’s harboring conviction.”

ALIEN HINDERING REMOVAL

Foreign nationals may be removable from the United States for violations including failure to abide by the terms and conditions of admission or engaging in crimes such as violent crimes, document and benefit fraud, terrorist activity, and drug smuggling. In general, all legal permanent residents are given the opportunity to present their case before an immigration judge. Aliens who have entered without inspection (EWI) are entitled to a removal hearing before an immigration judge unless they fall under the category of “arriving aliens”.

Under 8 U.S.C. § 1253, any alien who does not leave the United States within the removal period, does not take steps to secure travel arrangements, conspires to prevent their departure, and/or fails to present himself for removal at the time and place required by the Attorney General may also be found guilty of hindering his or her removal. This offense carries a maximum term of imprisonment of four years, a period of supervised release following imprisonment, and a maximum fine of $250,000.

RE-ENTRY OF DEPORTED ALIEN

If you return to the U.S. without consent after a removal order, that order may be reinstated. In this case, an immigration officer can send you back to the country to which you were previously deported without the opportunity for an immigration judge to hear your case. Moreover, you may be charged with the crime of illegal reentry under 8 USC § 1326. If convicted, you may face a maximum of two years in federal jail and/or a fine. Reentry after deportation is one of the most severe immigration crimes

 

Under 8 U.S.C. § 1326, any alien who 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 enters, attempts to enter, or is at any time found in, the United States, unless 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 with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act, shall be fined, or imprisoned not more than 2 years, or both. If the alien was removed for having committed a felony, the alien can be imprisoned for up to 10 years. If the basis of removal was an aggravated felony, the term of incarceration can be up to 20 years.

As a criminal immigration lawyer licensed in California and federal court, I have defended many immigration criminal cases in both State and Federal Courts. I provide the highest level of advocacy, and do anything possible to get my clients the best result possible in their criminal matters.

Contact my office immediately if you have been charged with a Federal Immigration Crime.