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1 1 (January 21, 2020)

handle is hein.crs/govbgzt0001 and id is 1 raw text is: Immigration-Related Criminal Offenses January 21, 2020 The Immigration and Nationality Act (INA) governs the admission, removal, and presence of non-U. S. nationals (aliens). Congress has established criminal sanctions for certain conduct that undermines immigration rules. Immigration-related cases make up a significant portion of the federal criminal caseload. See U.S. SENTENCING COMMISSION, FISCAL YEAR 2018 OVERVIEW OF FEDERAL CRIMINAL CASES 12 (2019). Immigration-related crimes generally cover three categories of conduct: (1) improper entry and reentry; (2) the smuggling, transporting, and harboring of aliens; and (3) immigration-related fraud. ,pme ~, Enry n lfl-g a, e ,.;,.try,, Unlawfully entering the United States may result in criminal penalties with enhanced penalties for illegal reentry. Improper Entry: 8 U.S.C. § 1325 makes it a criminal offense to enter or attempt to enter the United States without authorization. A violation may result in a fine and imprisonment for up to six months for a first offense and up to two years for a subsequent violation. An alien may commit improper entry in three ways: * entering or attempting to enter the United States at any time or place other than a designated port of entry; * eluding examination or inspection by immigration officers; or * attempting to enter or obtaining entry by a willfully false or misleading representation or the willful concealment of a material fact. IllegalReentry: 8 U.S.C. § 1326 makes it a felony for an alien previously denied admission or removed from the United States, or who departed the country while an order of removal was outstanding, to enter, attempt to enter, or be found in the United States without prior authorization. Absent certain factors, a conviction carries a punishment of a fine and a term of imprisonment for up to two years. Aliens may face enhanced penalties if they were previously removed or excluded on certain grounds, or had committed specified crimes. See 8 U.S.C. § 1326(b). In some cases, the maximum penalty may be up to 20 years' imprisonment. To establish that an alien unlawfully entered the United States, some reviewing courts have held that the alien must have entered free from official restraint. United States v. Pacheco-Medina, 212 F.3d 1162 (9th Cir. 2000) (reversing conviction for illegal reentry where the defendant was immediately apprehended when stepping on U.S. soil and therefore was never free from official restraint); see also United States v. Morales-Palacios, 369 F.3d 442 (5th Cir. 2004). But an alien may still be charged with attempting to unlawfully enter (or reenter) the country. See, e.g., United States v. Cabral, 252 F.3d 520 (1st Cir. 2001) (upholding illegal reentry conviction of previously removed alien who was arrested at port of entry for making a false claim of residency in an attempt to reenter the country). Several provisions in federal law criminalize activities that involve smuggling aliens into the United States, transporting aliens within the United States, or otherwise assisting unlawfully present aliens to remain in the country. Primarily located in 8 U.S.C. § 1324, these offenses typically constitute felonies and may sometimes carry lengthy prison terms, including an enhanced penalty when the offense is performed for commercial advantage or private financial gain. In a few instances, such as alien smuggling offenses resulting in serious harm to or the death of a person, the maximum available penalty may be life imprisonment or death. Additionally, any vehicle, vessel, or aircraft that was used in the commission of the crime or otherwise traceable to gross proceeds from a violation of 8 U.S.C. § 1324 may be seized and subject to forfeiture. Humanitarian concerns are not a defense to a charge of transporting or harboring aliens. United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989); see also Dimova v. Holder, 783 F.3d 30 (1st Cir. 2015) (reasoning that the statute's plain language does not contain an exception for humanitarian assistance). Smuggling: 8 U.S.C. § 1324(a)(1)(A)(i) makes it a crime for any individual to bring or attempt to bring a person to the United States between ports of entry, knowing that person is an alien. The individual may be convicted regardless of whether the smuggled alien had received prior authorization to enter, come to, or reside in the United States and regardless of any future official action that might be taken with respect to the alien. The defendant must have made an affirmative and knowing act of help or assistance; an individual's mere presence during the commission of the crime is insufficient. See Altamirano v. Gonzalez, 427 F.3d 586 (9th Cir. 2005). Transporting: To be guilty of the crime of transporting under 8 U.S.C. § 1324(a)(1)(A)(ii), a person knowing or in reckless disregard of the fact that an alien was not lawfully in the United States knowingly transported the alien for the purpose of helping him or her remain in the country unlawfully. A person acts with reckless disregard if he or she is aware of but consciously disregards facts and circumstances indicating that the person being transported was an alien who had unlawfully entered or remained in the ~dN mppm qq\ a , q mmm, go 'S I 11LIANJILiN,