In 1952, Congress passed the McCarran-Walter Act, the so-called “Immigration and Nationality Act” (INA), which has been codified into law under 8 U.S.C. §1101 to 1503. There are many other immigration-related statutory provisions (and more likely on the way soon), but modern immigration legislation derives in large part from the legislative work that was done in the 1950s. When discussing immigration crimes, there is a clear distinction between what happens at the state level and what happens at the federal level. At the state level, enforcement efforts often focus on criminal complaints or indictments against undocumented immigrants for crimes associated with unlawful residence: forgery, identity theft, fraudulent use of credit devices, and other related state-level crimes.
At the federal level, different crimes are often the focus of prosecutorial efforts. Smuggling, transporting, or harboring aliens are distinct federal crimes, and will be discussed separately. Under 8 U.S.C. §1324(a), it is unlawful for anyone to:
(a) bring an alien into the United States,
(b) transport or harbor an alien,
(c ) encourage an alien to enter the United States, or
(d) to conspire to commit any of the preceding offenses.
Illegal entry is governed by 8 U.S.C. §1325. Under §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.
Under 8 U.S.C. §1324(b), civil penalties can be assessed for violations of immigration provisions:
Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of—
(1) at least $50 and not more than $250 for each such entry (or attempted entry); or
(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.
Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.
Under §1325(c ), “marriage fraud” is criminalized; it is defined as “knowingly” entering into a marriage for the purpose of evading any provision of the immigration laws. And §1325(d) criminalizes “immigration-related entrepreneurship fraud”, which is defined as “knowingly” establishing a commercial enterprise for the purpose of evading the immigration laws.
Smuggling. Smuggling is defined as knowingly bringing or attempting to bring an alien into the United States at a non-designated place of entry. Even if a person has received “prior official authorization” to come to the United States, a crime may be alleged if the person is brought in at a non-designated place of entry.
Transporting. Anyone who “transports, or moves or attempts to transport or move…[an] alien within the United States by means of transportation or otherwise, furtherance of such violation of law” may be in violation of 8 U.S.C. §1324(a)(1). The key consideration in a transportation offense is the “reason” behind the transportation. U.S. v. Moreno, 561 F.2d 1321, 1323 (9th Cir. 1977). Courts have held, for example, that it is not a crime to transport known illegal aliens between job sites in the ordinary and required course of the defendant’s employment, or to transport aliens for job searches in another state. U.S. v. Moreno-Duque, 718 F.Supp. 254 (D. Vt. 1989); U.S. v. 1982 Ford Pick-Up, 873 F.2d 947 (6th Cir. 1989). However, some courts have held that transportation for work or employment reasons is not a defense to the crime of transportation of undocumented aliens. U.S. v. Shaddix, 693 F.2d 1135, 1138 (5th Cir. 1982).
Harboring. Harboring an alien is covered under §1324(a)(1)(A)(iii). It basically criminalizes any attempt to shield or protect an unlawful alien from detection from the authorities.
Hiring. It is unlawful to recruit or hire someone who is an alien. §1324(a)(1)(A). The burden of compliance is placed squarely on the shoulders of an employer. Failure to comply with the eligibility verification process is itself a crime. Evidence of violations of these provisions can be found, according to §1324, as follows. The applicable section reads:
In determining whether a violation of subsection (a) of this section has occurred, any of the following shall be prima facie evidence that an alien involved in the alleged violation had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law:
(A) Records of any judicial or administrative proceeding in which that alien’s status was an issue and in which it was determined that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
(B) Official records of the Service or of the Department of State showing that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
(C) Testimony, by an immigration officer having personal knowledge of the facts concerning that alien’s status, that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
Due to some dispute between state and federal authorities over who has the enforcement authority in these matters, a provision was inserted in Section 1324 specifying who has the authority to make arrests: “No officer or person shall have authority to make any arrests for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.”
Forfeiture provisions round out Section 1324, making it clear that asset forfeiture can come into play when violations of these provisions are found. As Congress continues to amend, modify, and add to the complex rules surrounding immigration, it is not unreasonable to expect significant changes in immigration crimes and enforcement in the years ahead.