Prosecutions for immigration crimes in the U.S. are generally based on criminal violations of the Immigration and Nationality Act, the primary federal law that regulates how people can enter the country, how they can apply for citizenship or asylum, and the civil and criminal penalties for breaking the law, including deportation or time in prison. The INA lists several kinds of immigration crimes such as visa fraud, unlawful procurement of citizenship, alien smuggling, unlawful entry or reentry, and hiring undocumented workers.

The U.S. government has several agencies charged with investigating potential immigration crimes, including the U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and Homeland Security Investigations (HSI). Prosecutions for immigration offenses are led by the U.S. Attorney’s Office in the district where the alleged offense took place, though special cases are sometimes prosecuted by other offices at the DOJ such as the Human Rights and Special Prosecutions Section (HRSP).

There are several federal criminal laws under 8 U.S.C. § 1324 that prohibit and penalize smuggling, harboring, hiring, or otherwise helping unlawful aliens (often called “illegal immigrants”) enter the U.S. and stay here illegally. These offenses include:

• Bringing a person into the U.S. other than through a designed port of entry while knowing that the person is an unlawful alien. The punishment for violating this subsection is up to 10 years in prison. If a person is seriously injured during the offense, the penalty is up to 20 years in prison. If a person dies, the penalty is up to life in prison.
• Transporting or helping an unlawful alien move within the U.S. with knowledge that they are unlawfully here or recklessly disregarding that fact. The punishment for illegally transporting an alien is up to 5 years in prison, but defendants can be sentenced up to 10 years in prison if they committed the offense for commercial advantage or financial gain. Additionally, the penalty increases to up to 20 years or life in prison if a person is seriously injured or dies, respectively.
• Concealing, harboring, or shielding an alien from detection from the government knowing that the alien came into the U.S. unlawfully. The punishment for violating this law is up to 5 years in prison unless the defendant committed the offense for commercial advantage or financial gain, in which case the penalty is up to 10 years in prison. The penalty increases to up to 20 years or life in prison if a person is seriously injured or dies during the offense.
• Encouraging or inducing an unauthorized alien to improperly enter or reside in the U.S. knowing they are an alien or recklessly disregarding that fact. The punishment for encouraging or inducing an alien is up to 5 years in prison, but 10 years if the offense was committed for commercial advantage or financial gain. The penalty increases to up to 20 years or life in prison if a person is seriously injured or dies during the offense.
• Conspiring to commit the above-listed offenses or aiding and abetting the above-listed offenses. Conspiracy offenses are punishable by up to 10 years in prison or 20 to life if there is a serious injury or death involved, respectively. Aiding and abetting is punishable by up to 5 years, or 10 if the offense is committed to gain commercial advantage or financial gain, or 20 to life if there is a serious injury or death involved.

Defenses to Alien Smuggling and Harboring Charges

In federal prosecutions involving alien smuggling or harboring charges, it is not enough for the Government to prove that a defendant transported, sheltered, or employed an unlawful alien–the Government must also prove that the defendant knew that the alien was unlawfully in the U.S. Lack of knowledge regarding an alien’s unlawful status can be a powerful defense in alien smuggling and alien harboring cases.

There are other important defenses to consider when a defendant has been charged with alien smuggling and/or alien harboring. For example, a defendant can argue that they were not acting to help an alien “remain in the U.S. illegally,” but rather out of humanitarian or legal reasons. In one prominent case, a volunteer who provided water, shelter, and transportation to immigrants crossing the border was acquitted of alien harboring charges after successfully arguing that he did not have an intent to conceal them or help them evade immigration authorities.

An alien commits the offense of improper entry under 8 U.S.C. § 1325 if they enter or attempt to enter the U.S. at any time or place other than an official port of entry. It also applies if an alien tries to elude inspection by immigration officers or gives false statements or misleading information to an immigration officer. The punishment for improper entry is up to 6 months in prison. If a defendant has already been convicted of improper entry before, however, the punishment is up to 2 years in prison.

Illegal reentry is a more serious crime. A person commits the offense of illegal reentry under 8 U.S.C. § 1326 if they have previously been deported, denied admission, or ordered for removal from the U.S. and they subsequently enter, attempt to enter, or are found within the U.S. at any time thereafter.

While the punishment for a conviction under § 1326 is normally up to 2 years in prison, there are enhanced penalties available depending on the defendant’s criminal record and immigration history. These enhanced penalties include:

• Up to 10 years in prison for a defendant convicted of illegal reentry who was initially removed due to a conviction for three or more prior misdemeanors for drugs, crimes against a person, or a felony;
• Up to 20 years in prison for a defendant convicted of illegal reentry who was initially removed due to a conviction for an aggravated felony (such as murder, rape, sex crimes against minors, drug trafficking, and other serious offenses);
• Up to 10 years in prison for a defendant convicted of illegal reentry who was initially removed and excluded due to terrorist activity or connections to terrorist activities;
• Up to 10 years in prison for a defendant convicted of illegal reentry who was initially removed while serving a sentence under state or federal law.

If a person is convicted of illegal reentry and was previously deported before they finished completing a criminal sentence, they will also have to finish that sentence on top of whatever punishment they get for illegal reentry.

Defenses to Illegal Entry and Reentry Offenses

Defendants charged with illegal entry or illegal reentry can invoke several defenses against these kinds of charges. In some cases, for example, a defendant can argue that they were brought into the U.S. unlawfully against their will or that they were deceived into believing that their entry was legal.

A defendant charged with illegal reentry after being deported or removed can argue that their initial removal or deportation order was invalid. There are strict rules limiting a defendant’s ability to challenge the prior removal order or conviction that previously led to their deportation, however, and a defendant can only do so if:

• The defendant had exhausted any and all administrative avenues for appealing the order of removal;
• The deportation proceedings that led to the improper order of removal deprived the defendant an opportunity for judicial review; and
• The entry of the removal order was fundamentally unfair.

Federal forced labor laws make it a crime to use force, threats, or coercion to get someone to work or provide services. These cases often involve migrant workers, unlawful aliens, and employers or recruiters accused of trafficking people to work for them. Forced labor charges are usually brought under 18 U.S.C. §§ 1589–1595 and often alongside alien smuggling and harboring charges.

A typical labor trafficking case might involve a defendant accused of bringing undocumented workers to the U.S. voluntarily, under false pretenses, or by fraudulently obtaining temporary work visas, and then forcing them to work by threatening to have them arrested or deported if they try to quit. Sometimes, employers are also accused of withholding their workers’ visas or passports to coerce them.

In some cases, the employer is accused of forcing employees to work excessive hours or under poor conditions based on these threats. The Government often relies on evidence of harsh working conditions, excessive hours for minimal pay, and poor living conditions to show that the workers were being coerced, even if there is no evidence of explicit threats.

A conviction for forced labor or human trafficking can carry up to 20 years in prison, or life if someone is seriously injured, sexually assaulted, or dies. These cases often involve aggressive asset forfeiture, fines and other financial penalties, and a push for court-ordered restitution for the alleged victims.

Defenses to Forced Labor and Human Trafficking Charges

Fortunately, there are effective defenses to these charges, and our firm’s federal criminal attorneys have been able to obtain dismissals and other remarkable outcomes. In some cases, for example, the alleged victims are lying to the Government and actually worked voluntarily and under fair conditions. An attorney experienced in federal labor trafficking cases can expose them.

In many forced labor and human trafficking cases, the alleged victims have a strong motive to lie, such as a desire to stay in the U.S. and obtain legal status. Critically, the federal government publicly advertises that immigrants who are victims of crime can be given legal status and other benefits if they report the crime to law enforcement. That creates a huge incentive to lie for a poor unlawful alien who wants to stay in the U.S. by any means necessary. For example, USCIS’s website advertises the various kinds of visas and legal status an unlawful alien can obtain by reporting that they are victims of a crime, with many of these visas allowing a pathway to permanent residency and citizenship.

In one of our firm’s cases, we got forced labor and alien smuggling charges dismissed after obtaining evidence that our client’s former workers had collaborated with each other to bring false accusations of labor trafficking against our client in order to get legal status. We were also able to obtain evidence that directly disproved the workers’ allegations that they were forced to work with no pay and were not allowed to leave their homes or their workplace, including financial records, social media posts, and other evidence showing that they were well paid and able to move around freely around the U.S. and within their communities.

In other cases, the Government overreaches and cannot prove that there were actually any threats or coercion, even if the defendant called police or immigration officials regarding their employees. In fact, employers have a legal obligation to report to immigration if a visa worker quits, as that worker is no longer eligible to remain in the U.S. Based on these requirements, statements like “you will have to go back to your home country if you quit” are not always threats, they’re simply the reality of being a temporary migrant worker in the U.S.

Immigration fraud offenses are criminal violations of immigration laws that involve lying to federal government agencies or officials in connection with applying for a visa, a passport, U.S. citizenship, or some other immigration benefit. Like other federal crimes, a conviction can lead to serious prison time, the loss of civil rights, deportation, and other consequences. Unlike other kinds of crimes, a conviction for an immigration fraud offense can also lead to “denaturalization,” where a defendant is stripped of U.S. citizenship, if they obtained their citizenship through fraud.

Immigration fraud charges are often brought alongside charges for making false statements to federal agents or agencies generally. Immigration fraud offenses include:

Visa Fraud, Passport Fraud, and Document Fraud Offenses

Under 18 U.S.C. § 1546, it is a federal crime to lie on an application for an immigrant visa, U.S. passport, or other immigration-related document, or to use or create counterfeit immigration documents like green cards, work permits, and I-94s.

The penalties for “document fraud” offenses under Section 1546 include up to 10 years in prison, though the maximum sentence can be up to 25 years in prison if the offense involved an act of terrorism or drug trafficking. If the offense involved the use of another person’s identity, the Government can also bring additional charges of “aggravated identity theft,” which can carry additional mandatory prison time.

Marriage Fraud and Entrepreneurship Fraud

Under 8 U.S.C. § 1325, the same statute that prohibits illegal entry by an alien, an individual who “knowingly enters into a marriage for the purpose of evading any provision of the immigration laws” can be sentenced to up to 5 years in prison and a fine of $250,000. The same penalties apply to an individual who “knowingly establishes a commercial enterprise” for the same purpose. It does not matter if the defendant is a U.S. citizen or an unlawful alien.

Unlawful Procurement of Citizenship or False Claims of Citizenship

Under 18 U.S. Code § 1425, making false statements in connection with a citizenship application or other immigration proceedings can result in up to 10 years in prison for a first or second offense, with the penalties increasing to up to 25 years if the offense involved terrorism or drug trafficking.

The Department of Justice has announced that they are going to aggressively pursue naturalized citizens who they suspect of lying on their citizenship applications and has specifically declared that they will use these prosecutions to strip them of their citizenship.

Defenses in Immigration Fraud Cases

A federal criminal defense attorney with experience in immigration crimes can help you identify and build strong defenses to immigration fraud charges. The Government’s evidence in these cases is often circumstantial and usually involve questions regarding the intentions behind a defendant’s statements, their lack of knowledge or good faith belief regarding their immigration history or legal requirements, the timeline and circumstances of a defendant’s relationship with their spouse or others, and other facts that are unique to a defendant’s case.

This does not constitute legal advice or an explanation of your rights under the law. Please retain an attorney for counsel on all matters related to immigration crimes in the State of Georgia.