IMMIGRATION VIOLATIONS

When one thinks of an immigration violation, the most common image that comes to mind a foreign citizen crossing the border into the United States.  But, criminal immigration violations cover a much broader scope of activity.  Many employers do not know is that they can be criminally charged for recruiting or 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.  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).

Falsification of international travel documents and citizenship papers is also aggressively pursued.  Title 18 U.S.C. §§ 1541 to 1546, provide criminal penalties for offenses related to passports, visas, and related documents. Sections 1541 to 1544 exclusively concern passports. Section 1545 deals with safe conducts as well as passports. 18 U.S.C. § 1546 deals with visas, permits, and related documents.

Chapter 69 of title 18, United States Code sets forth offenses relating to nationality and citzenship. 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 for an alien to vote in a federal election.

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.

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.  Marriage fraud has been prosecuted under 8 U.S.C. §  1325 and 18 U.S.C. § 1546(a). The Supreme Court has ruled that the validity of a marriage under state law is immaterial to the issue of whether a person defrauded INS. The Immigration Marriage Fraud Amendments of 1986, 8 U.S.C. §  1186a, were designed 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.

The criminal conviction of an illegal alien almost always results in deportation.  The policy of the United States is to deport all criminal aliens unless extraordinary circumstances exist. Accordingly, absent such circumstances, federal prosecutors will seek the deportation of deportable alien defendants in whatever manner is deemed most appropriate in a particular case.

Trombley & Hanes has experience in handling all types of criminal immigration offenses.  We recently helped a multi-million dollar company with several hundred employees avoid prosecution over charges that they hired illegal aliens.