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"Borderline Behavior": Alien Smuggling and Its Consequences

"Alien smuggling" is one of the most serious immigration offenses. But what is it exactly?

The answer lies in the Immigration and Nationality Act (INA).

The principal provision of the INA dealing with the subject is Section 274, 8 USC 1324, named "Bringing in and Harboring Certain Aliens."

INA Section 274 (a) contains a number of definitions of the term, but basically alien smuggling occurs if an individual knows, or with reckless disregard for the fact that the alien has no right to enter the United States, either brings in or attempts to bring

in, engages in the conspiracy to bring in, or aids and abets the bringing in of an alien into the United States. The statute also considers it alien smuggling for an individual to "harbor" (house, hide?) such an alien already in the United States.

If the violation is done for "commercial gain" the individual found guilty of alien smuggling can being imprisoned for up to 10 years, and fines. If the offense was "not-for-profit," the term of imprisonment is up to five years, with fines. And, if any person during the smuggling suffer serious bodily injury, or faces the risk of loss of life, the penalty is 20 years! If someone loses their life during the alien smuggling act, the maximum penalty is life imprisonment! INA Section 274 (b), 8 USC 1324(b).

The INA also contains provisions that can be considered "alien smuggling lite," through the operation of INA Section 275(a), 8 USC 1325(a); and 18 USC 2, a general "aiding and abetting" prohibition in the federal criminal code, Title 18. Those reading the post before this one will remember that 8 USC 1325(a) is a provision making it a federal misdemeanor punishable by six months imprisonment and fines for an alien to enter the United States without authorization. Through the use of the "aiding and abetting" language of 18 USC 2, this provision can also be applied against any third party who literally helps the alien entering the United States without a lawful admission.

Just looking at the language it is obvious that there is a huge overlap, and that some conduct falling under 8 USC 1324(a) can just as easily be considered a violation of 8 USC 1325(a). But don't let the factual similarity fool you. The legal consequences of the two different charges are in enormous.

A conviction under 8 USC 1324(a) is a felony, and for an alien it is classified under the INA as a "aggravated felony" in most cases. For someone with status in America, who is a lawful permanent resident (LPR) or otherwise legally here, there is no greater threat to the right to remain in the United States than being convicted of an aggravated felony. Such a conviction in almost all cases signals the end of one's ability to stay in America, even if family circumstances are otherwise compelling, such as having young US citizen children to take care of. Moreover, even if an LPR is able somehow to avoid removal for such a conviction, the INA also provides that such a person is forever barred from becoming a US citizen.

In contrast, a conviction under 8 USC 1325(a) is considered a federal misdemeanor, though it is still a removable (deportable) offense. But, under the right circumstances an LPR may have a defense to deportation based on the family hardship or other considerations if convicted under 8 USC 1325(a). In addition, the person with such a conviction is not permanently barred from citizenship, but does have to wait the statutory in five years before applying for naturalization, because otherwise they will be denied naturalization on "good moral character" (GMC) grounds.

So, it is extremely important that an immigration lawyer be consulted as early as possible after an LPR is charged with alien smuggling, to make sure that the specific statutory offense is classified under 8 USC 1325(a).

How can in alien caught up in a "smuggling" allegation convince federal prosecutors to charge him or her under the federal misdemeanor rather than the aggravated felony? It isn't easy. I recently represented a client in the situation, who was originally charged with a violation of 8 USC 1324(a). However, this client (unlike others involved in the scheme) fully cooperated with federal prosecutors and by the client's own conduct showed that he had not originated the plan. I was involved early enough to work with the client's federal public defender, and educate that lawyer about the difference between the two charges, and spoke with the federal prosecutor myself to "plead the client's case" by mentioning the client's minor US citizen children and other mitigating factors in the client's case. As a result the client was charged with, and pled guilty to, a violation of 8 USC 1325(a). So, cooperation with law enforcement is the key. It is essential that federal prosecutors be educated about the client's background and motivations while involved in such activity, so that prosecutors are motivated to charge the client with the lesser offense.

A happy postscript to the above case is that the client filed an application for naturalization that was approved, seven years after the event occurred. But the road was not easy for the client after the conviction. While the client was not put into proceedings, it was "a close run thing," and the client endured years of stress and anxiety waiting for the matter finally to be resolved in the client's favor.

An unhappy, recent development in federal immigration law enforcement is the fact that many mothers fleeing to the United States from Central America with their children are now routinely charged as "alien smugglers" at the border for not only seeking entry on their own behalf but also bringing their children. Technically, it's also possible for a parent without status in the United States who contracts with a coyote to bring a child here to be charged with alien smuggling, even if there are compelling reasons for the child's presence in the United States. From my perspective, this is an abuse of prosecutorial discretion because the vast majority of women and children coming to the United States from Central America do so because their lives are at risk and the governments of their home countries are unwilling or unable to protect them. I have many many asylum cases involving women and children from Central America. For the present, my advice to moms fleeing to America with children for safety reasons is to present themselves at a lawful border crossing the claim asylum, rather than to "sneak across the border" and later claimant while in the United States. There is a risk of detention in a border state by federal authorities while the asylum claim is being heard, but this is far better than wrestling with a smuggling charge in addition to proving grounds for asylum.

Brian D. O'Neill Attorney at Law, LLC

Immigration, Employment and Business Law

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