Smuggling Noncitizens Into the U.S.: Possible Legal Consequences

Despite walls, border guards, and physical danger, many people attempt to cross the United States border illegally (particularly its southern border, around California, Texas, and New Mexico). However, the difficulty in doing so mean that many would-be migrants seek help from other, paid or not. What are the penalties for offering this type of help?

U.S. federal law makes it a crime to help bring someone into the United States who is not a U.S. citizen. It treats the crime especially seriously because it considers it a "gateway crime" for other criminal offenses, such as identity theft, money laundering, gang activity, various forms of fraud, and terrorism. It's also considered a danger to the foreign nationals, who might be taken advantage of con artists or transnational criminal networks who abandon them to the elements or use dangerous or overcrowded and easily overheated modes of transportation.

The law contains two broad provisions on human smuggling, with the result that the smugglers can face punishment regardless of whether they were acting for profit or not, or whether they were simply trying to help their own family members or strangers. Here, we'll take a closer look at what the relevant statutes say about the crime of alien smuggling.

Which U.S. Federal Statutes Address Alien Smuggling?

The statutes in question come from the U.S. Immigration and Nationality Act. (I.N.A.), including §§ 274(a)(1)(a) and 274 (a)(2) (also found at 8 U.S.C. § 1324).

I.N.A. Section 274(a)(1)(a) says that anyone who helps bring or attempt to bring a noncitizen into the Unite States at some non-designated place without inspection by a U.S. official at a border, port, or other point of entry, is committing a crime. Escorting someone across deserts and river from Mexico is the classic type of violation of this section. The mode of transport does not matter; the law criminalizes smuggling actions that take place "in any manner whatsoever."

Penalties under Section 274(a)(1)(a) can include a fine under under Title 18 of the U.S. Code, a prison term of up to ten years, or both. The punishment gets multiplied by the number of people smuggled. And if someone gets injured as a result of the crime, the penalty can be increased to a 20-year prison term; while if someone dies as a result of the crime, the prison term can be extended to life.

In addition, Section 274(a)(2) makes it a crime to, knowingly or in reckless disregard of the fact that the person lacks prior official authorization to enter or live in the United States, bring or attempt to bring that person into the country. (A failed crime is still considered a crime under this section of the statute.) In this situation, it does not even matter whether the person brings the foreign national to an official U.S. entry point or not. Thus attempting to smuggle someone through an official checkpoint in the trunk of one's car would likely be prosecuted under this section. Penalties can include a fine under Title 18 of the U.S. Code, a prison term of up to one year, or both. Again, the penalties can be multiplied by the number of violations.

Although bringing the noncitizen straight to a U.S. immigration officer for inspection does not excuse the person from culpability for a criminal act, it can reduce the penalties. Why would someone go straight to an immigration officer? It has primarily been tried as a mechanism to help noncitizens seek asylum, which is a remedy that one can request upon entering the United States; but restrictions on applying for asylum at the border have made this a much less viable option. In any case, the penalty for not bringing the foreign national straight to a checkpoint is as much as ten years in prison.

Although acting for commercial or financial gain is not required in order to be found guilty under this section of the law, it too can increase the penalty, to at least three and up to ten years in prison. The same penalty applies to someone who violates this section knowing that the noncitizen planned to commit an offense punishable by more than one year in prison.

Repeat offenders under this section may receive more severe punishments. If it's the person's third or subsequent offense, the penalty becomes imprisonment of between 5 and 15 years.

The offender can also be made to give up any boat, car, plane, or other vehicle or aircraft used in the smuggling crime, and to forfeit any money or other proceeds earned in the course of the crime.

Getting Legal Help

If you have been accused of alien smuggling, or need to learn more about this topic, you might want to get help from an experienced criminal attorney.