Transporting Aliens within the United States.
8 USC § 1324(a)(1)(A)(ii) makes it a crime to knowingly transport undocumented aliens within the United States. It is a felony. And it is also the most common alien smuggling crime along the Texas-Mexico border. It happens when a person drives to the border to pick up people and then drives them to a major city like San Antonio, Austin, Houston, or Dallas.
But how does this law work? And what should you know if police arrest you or someone you love for transporting aliens? We will answer these questions. Most important of all, we answer the most frequently asked questions we get in 8 USC § 1324 cases.
What is the crime of transporting aliens?
There are four main facts that make it a crime to transport aliens. They are:
- An alien entered or remained in the country without permission;
- The defendant knew the alien was in the country without permission;
- The defendant transported the alien within the United States; and
- Finally, the defendant did this with intent to further the alien’s unlawful presence in the country.
Stated differently, the Government must prove each of these facts beyond a reasonable doubt to convict a person for transporting aliens.
Strikingly, the keys to an 8 USC 1324 transporting crime are knowledge and intent. This is because in many transporting crimes, there is no dispute the defendant is the driver. And there is usually no dispute that the people in the car are in the country without permission.
So the questions become–what did the driver know? And what did he intend? If you can provide an innocent explanation to these questions, then you can develop a defense to an 8 USC 1324 transporting charge.
In other words, context matters. This is why police do not arrest bus drivers and Uber drivers for smuggling people. It is not clear they know the passengers are undocumented. And they have no intent to smuggle them.
What are the penalties for transporting aliens within the United States?
|Statute||Description||Max Penalty||Fine Amount|
|8 USC § 1324(a)(1)(B)(ii)||Transporting aliens without financial gain.||Up to 5 years in jail.||Up to $250,000.00.|
|8 USC § 1324(a)(1)(B)(i)||Transporting aliens for financial gain.||Up to 10 years in jail.||Up to $250,000.00.|
|8 USC § 1324(a)(1)(B)(iii)||The smuggler causes another person serious bodily injury or puts another person's life in jeopardy.||Up to 20 years in jail.||Up to $250,000.00.|
|8 USC § 1324(a)(1)(B)(iv)||Someone dies during the crime.||Life in jail or even the death penalty.||Up to $250,000.00.|
What happens at a bail hearing after police arrest a person for an alien smuggling charge?
The bail hearing is the first chance where family and friends can help a person get out of jail after they are arrested for transporting aliens. But a federal bail hearing is totally different from a bail hearing in Texas state court.
For example, if police arrest a defendant for smuggling of persons in state court, then the defendant can get out by hiring a bond company to post his bond. In effect, state bail hearings are about money. If you have money to post a bond, then you can get out of jail. If you don’t, then you wait in jail until a judge lowers your bond or your case is done.
In contrast, federal bail is not tied to money. Instead, judges ask two questions before they release a person on transporting charges. They are:
- Will the person show up to court? and
- Will the person be a danger to the community if the court lets him out on bail?
Notably, the defense should be ready to answer these questions at a bond hearing. If they can show the person will show up to court and not be a danger to the community, then there is a high chance the court will let the person out on bond.
One way to answer these questions is for the defense to call a third-party custodian to testify at the bond hearing. A third-party custodian simply means a responsible adult who will make sure the defendant attends court and follows the rules of pretrial release.
More importantly, third-party custodians should have the following background:
- Be U.S. Citizens or Legal Permanent Residents;
- Have no criminal history;
- Have a job; and
- Be willing to sign an unsecured bond for the defendant.
In sum, the keys to third-party custodians are stability and responsibility. They have to be someone the judge trusts to be the adult in the room.
Reasons Judges Deny Bonds on Transporting Aliens cases.
Judges consider the following facts before they decide to release a person on bond:
- The person’s criminal history;
- His history of showing up to court and following the rules in other cases;
- Whether he is on bond or probation for another case when he got arrested for the transporting case; and
- His immigration status.
A person arrested for a first-time alien smuggling charge is more likely to get out on bond if he’s never been in trouble before. This is because a person’s criminal history is a big factor in bond hearings. Equally important, if the person has a stable job and home, then this will help him get a bond.
On the other hand, if the person has been in trouble before, then the judge will look to see if he failed to appear (FTA) in court for his other cases. The judge will also look to see if the person followed the rules of release or probation for the other cases.
Moreover, if the person has a history of breaking the rules and not showing up to court for his other cases, then a judge may not let him out on the new case. Plus, if the person is out on bond for any crime, then a judge will most likely not let him out on bail in the new case.
Finally, if the person does not have permission to be in the country, then the judge will not let him out on bail in the new case.
How do the sentencing guidelines for a transporting aliens charge work?
USSG § 2L1.1 is the sentencing guideline for transporting aliens. This guideline will give you a rough idea of how much jail time you can get for an alien smuggling charge. These guidelines have five main parts. They are:
- Base offense level;
- Specific offense characteristics;
- Acceptance of responsibility; and
- Criminal history.
Together, these five parts will tell you how much jail time a judge may give you for smuggling people by car or truck.
Specific Offense Characteristics.
The base offense level for alien smuggling is 12. But this number can go up based on the specific offense characteristics of your case. In other words, the good and bad facts of your case can help or hurt you.
Examples of facts that push up your base offense level include:
- smuggling minors without their parents;
- having a gun in the glovebox of the car;
- getting into a high-speed chase with police;
- putting immigrants in the trunk of your car; or
- putting immigrants in the back of a tractor-trailer without AC.
If any of these facts are present, then your base offense level will go up.
Your offense level can also go up based on your role in the crime. The guidelines call these adjustments. More to the point, your guidelines can go up or down if you:
- were a leader, manager, or organizer in the crime;
- used a minor to transport aliens; or
- played a minor or minimal role in the crime.
In the examples above, your guidelines will go up if you are the “big guy” in the crime. In contrast, your guidelines will drop if you played a small part in the crime.
Acceptance of Responsibility.
One way to get a lower guideline range is to plead guilty to transporting aliens. (Assuming you are guilty of course.) If you do this, then your guideline range can drop by two to three levels. That is to say, the guidelines reward you for taking responsibility for your actions. This two to three level drop in the guidelines is a major reason so many people plead guilty to federal crimes.
As a consequence, you should ask your attorney to give you two different estimates of your guidelines. The first estimate will tell you your guidelines if you plead out. The second estimate will tell you your guidelines if you go to trial and lose.
This difference in jail time is important. It lets you compare your options side by side. And in some cases–the difference in jail time can lead to some interesting possibilities.
Example: pleading guilty vs going to trial and losing.
Let’s assume police arrest you for a first-time 8 USC 1324 transporting case. And let’s assume a few more things. First, you’ve never been in trouble. Second, you smuggled less than 6 people. Third, nothing bad happened. That is to say, there is no high-speed chase, you didn’t have a gun, and you didn’t put people in the trunk of the car. As an aside, these facts are pretty common for people arrested on a first-time alien smuggling charge.
In this example, your guideline offense level is 12. Your criminal history category is I. And your guideline range is 10-16 months in jail. At the same time, if you plead guilty, then your offense level will drop by two points. But your criminal history category will stay the same. Thus, your guideline range is 6-12 months in jail if you take a plea.
So the difference between these two options is only four months from both the top and bottom of the guidelines. This is a major point. In a majority of cases, people do jail time for transporting aliens. So the jail time you are saving by cutting a plea is about 4 months.
Now for many people, four months in jail is four months too many. So assuming they are guilty, they will want to plead out to avoid doing the extra four months in jail.
But for others, the risk of only an extra four months in jail may be worth the risk of going to trial. Especially if there are problems with the case. Namely, where the government cannot show the defendant knew the people were undocumented or intended to further their presence in the country.
Criminal History Score.
The final factor that may raise your jail time is your rap sheet. If you have a record of committing crimes, then this may raise your jail time. This is because the guidelines treat first-time alien smugglers different from defendants with a long rap sheet.
Video on First-Time Alien Smuggling Guidelines.
First-time 8 USC 1324 Transporting Defense.
Shock and fear are the two main emotions I see in my clients. They are shocked they are in this position. And they are afraid or anxious about what will happen next. These emotions are understandable. But part of the defense attorney’s job is to take the fear out of the case by putting the client’s options into context.
And one way to do this is for the attorney and client to walk through the options together. This is because one size does not fit all. And what may be the right choice for one client, can be the wrong choice for a different client.
Attorney Genaro R. Cortez.