Federal Laws on Human Smuggling and Harboring Illegal Aliens – 8 USC 1324
For many people around the world, the United States of America represents a land of opportunity, as people flock to our shores and borders with hopes of building a better life for themselves and their families. While we pride ourselves as arguably the freest nation in the world, our borders are not wide open to everyone who wants to live in the U.S. There are laws that immigrants must follow to gain legal entry into the country. Despite these laws, people still find a way through our borders, and as a consequence, the United States is home to more than 10 million people who have entered the country illegally.
The Many Federal Crimes of Human Smuggling
To combat the problem of illegal immigration, Congress has established a comprehensive anti-human smuggling law (also known as “alien smuggling” or “immigrant smuggling”). This law – codified under Title 8 of the United States Code, Section 1324 – is aimed at those who help people cross American borders and enter our harbors illegally, and also at those who help these aliens remain in the United States. The federal law makes any of the following acts (or any attempts of these acts) a crime:
- Alien Smuggling: Subsection 1324(a)(1)(A)(i) makes it an offense to knowingly bring or attempt to bring into the United States an alien at any place other than an official point of entry to the country, such as a port, airport, or land immigration checkpoint. This crime applies to aliens who are here with permission of the United States as well as those who have entered illegally.
- Domestic Transporting: Subsection 1324(a)(1)(A)(ii) makes it a crime for any person, with knowledge or reckless disregard of the alien’s illegal immigrations status, to transport an alien within the United States by any means of transportation.
- Harboring: Under Subsection 1324(a)(1)(A)(iii), it is a crime for any person, with knowledge or reckless disregard of the alien’s illegal immigrations status, to conceal, harbor, or shield from detection an alien in any place, including any building or any means of transportation.
- Encouraging/Inducing Illegal Immigration: It is a crime under Subsection 1324(a)(1)(A)(iv) to encourage or induce an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that it will be a violation of law for the alien to do so.
- Conspiracy/Aiding or Abetting: Subsection 1324(a)(1)(A)(v) makes it a crime to engage in a conspiracy to commit or aid and abet the commission of any of these crimes.
- Bringing Aliens to the United States: Under Subsection 1324(a)(2), it is an offense to bring an alien into the United States who has not been authorized to enter or reside in the country. Unlike the crime of alien smuggling, this applies smuggling at immigration checkpoints, and at illegal points of entry.
- Unlawful Employment of Aliens: Subsection 1324(a)(3)(A) makes it an offense for any person, during any 12-month period, to knowingly hire at least 10 individuals with actual knowledge that these individuals are unauthorized aliens.1
“Knowledge or Reckless Disregard” Prosecution Element
In order for you to be convicted of violating federal human smuggling laws, federal law requires that the prosecutor prove beyond a reasonable doubt that you knew the person was not a U.S. citizen, or that you recklessly disregarded the truth about their citizenship.
Penalties for Human Smuggling
Human smuggling crimes are federal crimes, and convictions for any of these crimes carry severe punishment. Keep in mind that, with the exception of the crime of unlawful employment, each alien involved constitutes a separate count for each crime.
- Alien Smuggling: If you are convicted of illegal alien smuggling in federal court, you face a maximum of 10 years in federal prison. If, during and in relation to the offense, you cause serious bodily injury or put in jeopardy the life of any person, the penalty can be increased to a maximum of 20 years. If any death resulted, the death penalty may be imposed.
- Domestic Transportation: If you are convicted of domestic transportation of illegal aliens, you face up to five years in federal prison. This can be increased to 10 years if done for financial gain or commercial advantage. If, during and in relation to the offense, you cause serious bodily injury or put in jeopardy the life of any person, your sentence can be increased to a maximum of 20 years. If any death resulted, the death penalty may be imposed.
- Harboring: If you are convicted of harboring illegal aliens, you face up to five years in federal prison. This can be increased to 10 years if done for the financial gain or commercial advantage. If, during and in relation to the offense, you cause serious bodily injury or put in jeopardy the life of any person, the sentence can be increased up to 20 years. If any death resulted, you face the death penalty.
- Encouraging/Inducing Illegal Immigration: If you are convicted of encouraging or inducing illegal immigration, you face up to five years in federal prison. This can be increased to 10 years if done for financial gain or commercial advantage. If, during and in relation to the offense, you cause serious bodily injury or put in jeopardy the life of any person, your sentence can be increase to up to 20 years. If any death resulted, you face the death penalty.
- Conspiracy: Upon conviction of conspiracy to violate human smuggling laws, you face a maximum of 10 years in federal prison.
- Aiding or Abetting: Upon conviction of aiding and abetting to any of these crimes, you face a maximum of five years in federal prison.
- Bringing Aliens to the United States: This crime carries a penalty of one year in federal prison, which can be increased to 10 years if a first or second violation occurred where the alien is not immediately brought to port of entry upon arrival and presented to an immigration officer. A maximum 10-year sentence can be imposed if the alien was brought to the United States for the your financial gain or commercial advantage, or if committed with intent or reason to believe that the alien would commit an offense against the United States or any state that is punishable by more than one year. If there was reason to believe that the alien would commit an offense punishable by more than one year, your sentence can be increased to a maximum of 15 years.
- Unlawful Employment of Aliens: Upon conviction of unlawful employment of aliens, you face a fine of $3,000 per alien employed, and a maximum of six months in federal prison for the entire practice.2
Defenses to Human Smuggling Charges
The attorneys at Wallin & Klarich know effective legal defenses to these charges. Some of these include:
Lack of Knowledge. It may be an effective defense if you had no knowledge as to the immigrant’s legal status. Many factors may contribute to your lack of knowledge, such as language barriers, the alleged illegal alien lied to you, or you had reasonable belief that the person was a legal citizen of the United States.
Religious Affirmative Defense. Under 8 USC 1324(a)(1)(C), you are can legally claim a religious freedom defense against certain provisions of the federal human smuggling law. If you are charged with transporting, concealing, or inducing an alien to reside in the U.S. (once he or she has already crossed the border) you can claim a religious freedom defense if you can show:
- You belong to a religious denomination that has a bona fide nonprofit, religious organization in the U.S., or has agents or officers within the U.S.;
- Those agents encourage or invite an alien already present in the U.S.;
- The alien is encouraged or invited to minister as a non-compensated volunteer, with the exceptions of room, board, travel, medical, and other basic living expenses; and
- The alien minister has been a member of the denomination for at least one year.3
Thus, because the prohibited acts might be in furtherance of a religious purpose, the law states you can use this as a defense to several federal human smuggling charges.
The Valenzuela-Bernal Motion to Dismiss. In the 1982 case of United States v. Valenzuela-Bernal, 458 U.S. 858 (1982), the Supreme Court decided that the federal government has a duty in human smuggling cases to determine whether any alien witnesses possess favorable evidence to the defendant before the alien witness is returned to his or her country of origin.4 This means that if you can show that an alien could have provided testimony in your favor and could have affected the judgment of your case had he or she not been deported, then the court must grant your motion to dismiss the case.5
However, this is not an automatic defense. In fact, some federal courts have adopted the rule that you must show that government officials did not follow normal deportation procedures, or that they deported witness for the specific reason of gaining an unfair advantage in your case.6
Frequently Asked Questions
The attorneys at Wallin & Klarich frequently receive questions regarding federal human smuggling laws. These include:
- What if the alien involved in my case is later granted legal entry into the country? Can I still be convicted or can I appeal my conviction based on this new evidence?
Yes, you can still be convicted of this crime and this is not a valid ground for appeal. For example, under 8 U.S.C. 1324(a)(1)(A)(i), the law provides that alien smuggling is a crime “regardless of any future official action which may be taken with respect to such alien.”7 This means that you can be charged with alien smuggling regardless of whether that person is deported or permitted to stay in the United States. However, as discussed above, if the alien is deported before you have the opportunity to use them as a witness in your defense, you may be able to have your case dismissed.
- Does the crime of transporting an alien mean I have to check the citizenship of anyone that rides in my car?
No. The courts have said that evidence of mere transportation alone is insufficient to convict someone of transporting an alien.8 You must have acted with the specific intent to further that person’s illegal presence in the country.9
- Could I lose my car if I drive someone illegally across the border?
Potentially. Federal law allows the government to seize “[a]ny conveyance, including any vessel, vehicle, or aircraft, that has been or is being used in the commission of a violation of [8 U.S.C. section 1324(a)].”10 Therefore, any plane, boat, or car that you used to bring someone into the country illegally can be taken by the federal government, as well as any proceeds from the acts, or any property traceable to conveyances used or the proceeds from the acts.
Contact Wallin & Klarich If You Have Been Charged with Human Smuggling
Human smuggling in any of its various forms is a very serious federal crime. That is why it is vital that you contact an experienced federal criminal defense attorney as soon as possible. At Wallin & Klarich, our attorneys have over 30 years of experience successfully defending people facing federal charges. We can help you, too. We are committed to providing you with the personal attention you deserve, and to helping you overcome this difficult situation.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a Wallin & Klarich attorney experienced in federal criminal defense near you, no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.
3. 8 U.S.C. § 1324(a)(1)(C),↩
4. United States v. Valenzuela-Bernal, 458 U.S. 858 (1982).↩
5. Id. at 873.↩
6. See, United States v. Chapparro-Alcantara, 226 F.3d 616, 624 (7th Cir. 2000); United States v. Pena-Gutierrez, 223 F.3d 1080, 1085 (9th Cir. 2000); United States v. Iribe-Perez, 129 F.3d 1167, 1173 (10th Cir. 1997); but see United States v. Gonzalez, 463 F.3d 560 (5th Cir. 2006)(where 5th Circuit applies, but does not express adopt the requirement).↩
7. 8 U.S.C. § 1324(a)(1)(A)(i).↩
8. United States v. Chavez-Palacios, 30 F.3d 1290 (10th Cir. 1994)↩
9. United States v. Rivera, 879 F.2d 1247 (5th Cir. 1989), cert. denied, 493 U.S. 998, 110 S.Ct. 554, 107 L.ED.2d 550 (1989)↩
10. 8 U.S.C. § 1324(b).↩