Serious Immigration Crimes

Contested Deportation Hearings
Federal Appeals and Litigation

John T. Floyd III is an experienced attorney who defends individuals and businesses charged with serious immigration crimes before all State and Federal courts throughout the State of Texas. The John T Floyd Law Firm also represents individuals contesting formal removal or deportation proceedings.

Prosecutions convictions and sentences for immigration offenses

According to the Justice Department’s Bureau of Justice Statistics, the number of people prosecuted for immigration offenses in federal courts more than tripled from 1996 through the year 2003, growing from 6,605 defendants in 1996 to 20,771 defendants in 2003. The number of prosecutions has continued to increase since 9-11, and is expected to continue this course under current US policy. The average punishment for individuals convicted of immigration offenses in 2003 was 21.5 months in the Bureau of Prisons, followed by continued detention in U.S. Citizenship & Immigration Services (USCIS) custody or voluntary deportation.

The number of immigration offenders serving federal prison sentences increased more than nine-fold between 1985 and 2003– from 1,593 to 14,891 adult men and women—more than twice the rate of increase for the entire federal prison population. A major portion of this growth was attributable to changes in federal sentencing law that increased the likelihood of a convicted immigration felony offender receiving a prison sentence, from 57 percent in 1985 to 81 percent in 2003. The growth was also the result of increased sentences and time actually served, which increased from about 4 months in 1985 to 21.5 months in 2003.

Overall, 96 percent of immigration offense defendants are convicted when prosecuted in the federal courts.

It is important to note that the people processed through the federal court system for criminal prosecutions do not include aliens whom the INS detains and deports for illegal entry or unlawful residence. During 2003 alone, federal immigration officers officially removed 1,073,266 aliens from the U.S. Roughly, ninety percent accepted an offer of voluntary deportation, and 10 percent were removed following a formal hearing.


Offenses and Penalties

Title 8, U.S.C. § 1324(a) defines several distinct offenses related to aliens. Subsection 1324(a)(1)(i)-(v) prohibits alien smuggling, domestic transportation of unauthorized aliens, concealing or harboring unauthorized aliens, encouraging or inducing unauthorized aliens to enter the United States, and engaging in a conspiracy or aiding and abetting any of the preceding acts. Subsection 1324(a)(2) prohibits bringing or attempting to bring unauthorized aliens to the United States in any manner whatsoever, even at a designated port of entry. Subsection 1324(a)(3).

Alien Smuggling: Subsection 1324(a)(1)(A)(i) makes it an offense for any person who -- knowing that a person is an alien, to bring to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien.

Domestic Transporting: Subsection 1324(a)(1)(A)(ii) makes it an offense for any person who -- knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law.

Harboring: Subsection 1324(a)(1)(A)(iii) makes it an offense for any person who -- knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation.

Encouraging/Inducing: Subsection 1324(a)(1)(A)(iv) makes it an offense for any person who -- encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.

Conspiracy/Aiding or Abetting: Subsection 1324(a)(1)(A)(v) expressly makes it an offense to engage in a conspiracy to commit or aid or abet the commission of the foregoing offenses.

Bringing Aliens to the United States: Subsection 1324(a)(2) makes it an offense for any person who -- knowing or in reckless disregard of the fact that an alien has not received prior authorization to come to, enter, or reside in the United States, to bring 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.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), enacted on September 30, 1996, added a new 8 U.S.C. § 1324(a)(3)(A) which 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.

Penalties: The basic statutory maximum penalty for violating 8 U.S.C. § 1324(a)(1)(i) and (v)(I) (alien smuggling and conspiracy) is a fine under title 18, imprisonment for not more than 10 years, or both. With regard to violations of 8 U.S.C. § 1324(a)(1)(ii)-(iv) and (v)(ii), domestic transportation, harboring, encouraging/inducing, or aiding/abetting, the basic statutory maximum term of imprisonment is 5 years, unless the offense was committed for commercial advantage or private financial gain, in which case the maximum term of imprisonment is 10 years.

In addition, significant enhanced penalties are provided for in violations involving serious bodily injury or placing life in jeopardy. Moreover, if the violation results in the death of any person, the defendant may be punished by death or by imprisonment for any term of years.

Hiring Illegal Aliens: Title 8 U.S.C. § 1324a(a)(1)(A) makes it unlawful for any person or other entity to hire, recruit, or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien, as defined in subsection 1324a(h)(3). Subsection 1324a(2) makes it unlawful for any person or entity, after hiring an alien for employment, to continue to employ the alien in the United States knowing the alien is or has become an unauthorized alien with respect to such employment.

Subsection 1324a(f) provides that any person or entity that engages in a "pattern or practice" of violations of subsection (a)(1)(A) or (a)(2) shall be fined not more than $3000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than six months for the entire pattern or practice, or both. The legislative history indicates that "a pattern or practice" of violations is to be given a commonsense rather than overly technical meaning, and must evidence regular, repeated and intentional activities, but does not include isolated, sporadic or accidental acts. In addition, 18 U.S.C. § 1546(b) makes it a felony offense to use a false identification document, or misuse a real one, for the purpose of satisfying the employment verification provisions in 8 U.S.C. § 1324a(b).

Ilegal entry, marriage or establishing a business for evading immigration laws: Section 1325 sets forth criminal offenses relating to (1) improper entry into the United States by an alien, (2) entry into marriage for the purpose of evading immigration laws, and (3) establishing a commercial enterprise for the purpose of evading immigration laws.

Illegal entry after excluded, deported, or removed: Subsection 1326(a) now makes it an offense for 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 such alien received prior written consent from the Attorney General.

The basic statutory maximum penalty for reentry after deportation is a fine under title 18, imprisonment for not more than 2 years, or both. However, with regard to an alien whose "removal" was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), the statutory maximum term of imprisonment is 10 years. Moreover, if deportation was subsequent to conviction for an aggravated felony, the statutory maximum term of imprisonment is 20 years.

Although subsection 1326(a) now refers to 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," subsections 1326(b)(1) and (b)(2), relating to aliens with prior criminal convictions, refer only to aliens "whose removal was subsequent to a conviction."

Prohibited sexual activities with aliens: Section 1328 prohibits three kinds of sexual activities with respect to aliens: (1) importing aliens for prostitution, (2) holding aliens for prostitution, and (3) keeping, maintaining, controlling, supporting, employing, or harboring aliens for prostitution. Each of the three is a separate crime. See Dalton v. Hunter, 174 F.2d 633 (10th Cir.), cert. denied, 338 U.S. 906 (1949). The phrase, "in pursuance of such illegal importation," was added to § 1328 in 1910 to establish an interstate commerce nexus because the Supreme Court had held that the statute infringed on state police powers. See Keller v. United States, 213 U.S. 138 (1909). Also, "alien" was substituted for "woman or girl" to make it clear that the statute applied to both sexes. The phrase, "or for any other immoral purpose," probably includes only immoral purposes relating to sex, and not, for example, the selling of babies. See United States v. Baker, 136 F. Supp. 546, 549-550 (S.D.N.Y. 1955).

Refusal to Depart: The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) amended 8 U.S.C. § 1253 to make it a criminal offense for an alien to willfully fail or refuse to depart from the United States within 90 days of a final administrative or judicial order of removal. It is also an offense to willfully fail to make timely, good faith application for travel documents necessary for departure, to take action designed to prevent such alien's departure, or to willfully fail or refuse to appear for removal. The basic penalty provision is a fine under title 18, United States Code, imprisonment for up to 4 years, or both. Enhanced penalties are applicable to aliens deportable based on criminal convictions or security related grounds.

Fleeing or evading a checkpoint: The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) added a new 18 U.S.C. § 758, which makes it an offense to flee or evade a checkpoint operated by the Immigration and Naturalization Service, or any other federal law enforcement agency, in a motor vehicle and thereafter flee from Federal, State, or local law enforcement agents in excess of the legal speed limit. Such offense is punishable by a fine under title 18, imprisonment for not more than five years, or both.

Marriage Fraud: Marriage fraud has been prosecuted, inter alia, under 8 U.S.C. § 1325 and 18 U.S.C. § 1546(a). The Immigration Marriage Fraud Amendments Act of 1986 amended § 1325 by adding § 1325(c), which provides a penalty of five years imprisonment and a $250,000 fine for any "individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws." Under 8 U.S.C. § 1151(b), "immediate relatives" of U.S. citizens, including spouses, who are otherwise qualified for admission as immigrants, must be admitted as such, without regard to other, ordinary numerical limitations. The typical fact pattern in marriage fraud cases is that a U.S. citizen and an alien get married. They fulfill all state law requirements such as medical tests, licensing, and a ceremony. But the U.S. citizen is paid to marry the alien in order to entitle the alien to obtain status as a permanent resident of the United States; the parties do not intend to live together as man and wife. A legal issue arises where the parties tell the INS they are married, and they subjectively believe they are telling the truth because they have complied with state marriage requirements. The Supreme Court has ruled that the validity of their marriage under state law is immaterial to the issue of whether they defrauded INS. There have been situations where a bona fide marriage turns sour but the alien induces the U.S. citizen spouse to maintain the marriage as a ruse only as long as necessary for the alien to obtain status as a permanent resident alien. There is a line of cases holding that the viability of the marriage, if initially valid, is not a proper concern of the INS. United States v. Qaisi, 779 F.2d 346 (6th Cir. 1985); Dabaghian v. Civilleti, 607 F.2d 868 (9th Cir. 1979), and cases cited therein. However, the Immigration Marriage Fraud Amendments of 1986, 8 U.S.C. § 1186a, were designed, inter alia, to eliminate the Qaisi type loophole by establishing a two-year conditional status for alien spouses seeking permanent resident status, and requiring that an actual family unit still remain in existence at the end of the two year period.

Passports and Other Entry Documents: Title 18 U.S.C. §§ 1541 to 1546, provide criminal penalties for offenses related to passports, visas, and related documents.

A passport is defined at 8 U.S.C. § 1101(a)(30) as "any travel document issued by competent authority showing the bearer's origin, identity, and nationality, if any, which is valid for the entry of the bearer into a foreign country." The Supreme Court has stated "[a passport] is a document, which, from its nature and object, is addressed to foreign powers; purporting only to be a request, that the bearer of it may pass safely and freely; and is to be considered rather in the character of a political document, by which the bearer is recognized, in foreign countries, as an American citizen; and which, by usage and the law of nations, is received as evidence of the fact." See Haig v. Agee, 453 U.S. 280, 292 (1981). Title 8 U.S.C. § 1104 entrusts control of passport and visa matters to the Department of State, and establishes a Passport Office and a Visa Office. Title 8 U.S.C. § 1185(b) makes it unlawful for a United States citizen to attempt to depart from or enter the United States without a valid passport, except as authorized by the President. Section 211a of Title 22 authorizes the Secretary of State to issue United States passports in foreign countries. Title 22 U.S.C. § 212 limits issuance of United States passports to United States nationals only. Section 213 prescribes the method of applying for a passport, Title 22 U.S.C. §§. 213, 214a, and 215 control the fees for passports, 22 U.S.C. § 217a limits the temporal validity of passports to no more than 10 years. State Department regulations governing passports appear at 22 C.F.R. Part 51. See 59A Am.Jur.2d "Passports" for a general discussion of the law of passports. The statutory maximum term of imprisonment for violations of 18 U.S.C. §§ 1541 - 1546 is 10 years. However, 18 U.S.C. § 1547 provides that notwithstanding any other provision of title 18, the maximum term of imprisonment that may be imposed for passport and visa violations (except violations under 18 U.S.C. § 1545) if committed to facilitate a drug trafficking crime is 15 years; and if committed to facilitate an act of international terrorism is 20 years.

The statute of limitations for violations of 18 U.S.C. §§ 1541 to 1544 is 10 years. See 18 U.S.C. § 3291.

False Statement in Application for Passport and Use of a Passport Fraudulently Obtained: Section 1542 of Title 18 proscribes both false statements made to obtain a passport, and use of any passport so obtained. The false statement against which this section is most commonly used is the use of a false name in obtaining a passport. United States citizens attempt to obtain passports using false names in order to conceal criminal activity. A problem of proof can arise when the passport applicant has routinely used aliases and now seeks to obtain a passport in one of those aliases. See, e.g., United States v. O'Bryant, 775 F.2d 1528 (11th Cir.1985); United States v. Cox, 593 F.2d 46 (6th Cir.1979); United States v. Wasman, 641 F.2d 326 (5th Cir.1981), aff'd, 464 U.S. 932 (1984). Browder v. United States, 312 U.S. 335 (1941), is the leading case on use of a passport, the application for which contained a false statement. Browder obtained a passport in his real name, but in the portion of the application asking when his last passport was obtained, he falsely stated, "none." This statement was false because he had previously obtained a passport in a false name. He then used the new passport to enter the United States. The Supreme Court upheld Browder's conviction under 18 U.S.C. § 1542 for innocent use of a passport secured by a false statement. See 53 A.L.R.Fed. 507.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) amended this statute to provide for enhanced penalties if the offense was committed to facilitate an act of international terrorism or a drug trafficking crime.

Making or Using a Forged Passport: Section 1543 of Title 18 proscribes the forgery, alteration, etc., of passports or the use of or furnishing to another of a forged, altered, void, etc., passport or purported passport. It applies to instruments issued or purportedly issued by foreign governments as well as by the United States. See United States v. Dangdee, 616 F.2d 1118 (9th Cir. 1980).

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) amended this statute to provide for enhanced penalties if the offense was committed to facilitate an act of international terrorism or a drug trafficking crime.

Fraud and Misuse of Visas, Permits, and Related Documents, and False Personation: The first paragraph of 18 U.S.C. § 1546(a) proscribes the forging, counterfeiting, altering or falsely making of certain immigration documents or their use, possession, or receipt. The second paragraph proscribes the possession, or bringing into the United States of plates or distinctive papers used for the printing of entry documents. The third paragraph makes it a crime, when applying for an entry document or admission into the United States, to personate another or appear under a false name. The fourth paragraph makes it a crime to give a false statement under oath in any document required by the immigration laws or regulations.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) amended subsection 1546(a) to provide for enhanced penalties if the offense was committed to facilitate an act of international terrorism or a drug trafficking crime.

Subsection 1546(b) makes it a felony offense to use a false identification document, or misuses a real one, for the purpose of satisfying the employment verification provisions in 8 U.S.C. § 1324a(b).

Offenses relating to nationality and citizenship: These offenses include misuse of citizenship papers, 18 U.S.C. § 1423, impersonation or misuse of papers in a naturalization proceeding, 18 U.S.C. § 1424, unlawful procurement of citizenship, 18 U.S.C. § 1425, falsification of naturalization papers, 18 U.S.C. § 1426, and unlawful sale of citizenship papers, 18 U.S.C. § 1427.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) added 18 U.S.C. §§ 1425, 1426, and 1427 as RICO predicate offenses, as well as authorizing wiretap authority for investigations of such offenses.

The IIRIRA also added a new 18 U.S.C. § 1015(e) which makes it a felony offense to make a false claim of citizenship to obtain federal or state benefits, and a new subsection 1015(f), which makes it a felony offense to make a false claim of citizenship in order to register to vote in any federal or state election. Moreover, the IIRIRA also added a new 18 U.S.C. § 611 which makes it an offense, punishable by imprisonment for up to one year in prison, for an alien to vote in a federal election.

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