First-time Alien Smuggling Defense.
Immigration is a big issue along the Texas-Mexico border. And so are alien-smuggling crimes. As a result, state and federal police are patrolling highways near Del Rio, Eagle Pass, Brackettville, and Laredo to crack down on human smugglers. The end result is that police are now making a record number of arrests for human smuggling in the Western and Southern Districts of Texas.
Of major interest, it is now possible to face either a state or federal charge for alien smuggling in Texas. Consequently, we will show you how both the Texas and federal human smuggling laws work. More importantly, we will give you options to consider if you are charged with a human smuggling crime in Texas.
Federal Alien Smuggling under 8 USC § 1324
8 USC § 1324 is the federal alien smuggling law. It bans a wide range of conduct. In particular, this law makes it a crime to:
- Bringing aliens into the country;
- Transporting aliens within the country;
- Harboring or hiding aliens;
- Encouraging aliens to enter the country;
- Conspiring with others to commit these crimes; and
- Aiding or abetting others to commit these crimes.
Stated differently, 8 USC § 1324 covers every manner and method of alien smuggling. Further, each method listed above is a separate crime. This is why prosecutors can charge a person for transporting immigrants and conspiring to transport immigrants.
But the key feature to each of these crimes is alienage. That is to say, these crimes turn on the immigration status of the people being smuggled.
To explain, it requires prosecutors to show two things. First, they must show the people being smuggled are noncitizens with no permission to be in the country. Second, the prosecutors must show the defendant knew and intended to smuggle noncitizens who had no permission to be in the country.
This is why a defendant’s post-arrest statements and cellphone records play a major role in alien smuggling crimes. Prosecutors use the text messages and GPS pin drops to show the defendant knew and intended to smuggle people. To avoid this result, ask for a lawyer and remain silent if police are asking you questions about a smuggling crime. Also, do not consent to a search of your phone. Make them get a search warrant.
What are the most common penalties for Federal Alien Smuggling?
| Law. | Description. | Jail Time. | Fine. |
|---|---|---|---|
| 8 USC 1324(a)(1)(B)(ii) | Transporting, Harboring, Concealing, or Encouraging aliens to enter the country without financial gain. | 0-5 years. | $0-$250,000.00. |
| 8 USC 1324(a)(1)(B)(i) | Transporting, Harboring, or Encouraging aliens to enter the country for financial gain. | 0-10 years. | $0-$250,000.00. |
| 8 USC 1324(a)(1)(B)(iii) | Defendant causes serious bodily injury. | 0-20 years. | $0-$250,000.00. |
| 8 USC 1324(a)(1)(B)(iv) | Crime results in death. | Death penalty or life in prison possible. | $0-$250,000.00. |
| 8 USC 1324(a)(2)(B)(ii) | Bringing an illegal alien to the country for financial gain. | 3-10 years. | $0-$250,000.00. |
Can you get probation for a federal alien smuggling crime?
Yes. However, there is a high risk of serving jail time. As the prior link shows, a large number of people serve jail time in federal alien-smuggling cases.
Nevertheless, to get probation in a federal alien smuggling case, you need two things to happen. First, you need to have low sentencing guidelines. Second, you need a judge to grant your request.
Unfortunately, many judges in Del Rio and San Antonio are reluctant to grant probation for this type of crime. Consequently, getting probation will depend in large part on the judge hearing your case.
On top of that, the following facts will increase your chances of getting probation:
- If you have little or no criminal history;
- There are no high speed chases;
- There were no guns or minors;
- You smuggled less than 5 migrants; and
- You cooperate with police.
Again, there is no guarantee that a judge will give you probation. In fact, no lawyer can promise you that. But these facts will make you a strong candidate to get probation.
Warning: 2025 Texas Smuggling of Persons Law Update.
On November 21, 2023, Texas Governor Greg Abbot signed SB4. SB4 creates a 10-year minimum jail term for human smuggling crimes in Texas. This law goes into effect on February 6, 2024. For more information on these changes, read our post on this 2024 Texas Smuggling Law Update.
What is the crime of Smuggling of Persons in Texas?
Texas Penal Code § 20.05 makes it a crime to use a car, boat, airplane, or other vehicle and either intentionally hide a person from police or flee from police.
On top of that, Tex. Pen. Code § 20.05 makes it a crime to:
- Encourage people to enter the country;
- Hide, harbor, or protect people from being caught by police; and
- Help two or more people to enter or remain on farm land without the owner’s permission.
Notably, Texas’ Smuggling of Persons law overlaps in two important ways with 8 USC § 1324. First, Tex. Pen. Code § 20.05 covers the same type of conduct that the federal law does. Namely, it bans alien smuggling.
Second, the penalties for Tex. Pen. Code § 20.05 are higher than the penalties for federal alien smuggling. The penalty tables listed above and below illustrate this point.
Thus, the penalties for Smuggling of Persons in Texas overlap and conflict with the federal penalties for alien smuggling.
However, a major difference between these two laws is that prosecutors do not have to prove alienage in a Smuggling of Persons case. They only have to show the smuggler intended to hide or conceal another person from police.
This is a key point. Under federal law, it is only a crime under 8 USC § 1324 to smuggle undocumented immigrants. In contrast, under Texas law, it is against the law to smuggle any person. This means under Texas law it is a crime to smuggle both aliens and U.S. Citizens.
The main takeaway is that this overlap holds the building blocks to a preemption defense.
What are the penalties for Smuggling of Persons in Texas?
| Law until 2/6/2024. | Description | Penalty until February 6, 2024. | Fine. |
|---|---|---|---|
| Tex. Penal Code § 20.05(b) | Base Offense. | 2-10 years in jail. | $0-$10,000.00. |
| Tex. Penal Code § 20.05(b)(1) | 1. Creates a risk of serious injury or death. 2. Smuggled person is a minor. 3. Smuggled person for profit. 4. Defendant or another person possessed a gun during the crime. 5. The smuggler flees from police. | 2-20 years in jail. | $0-$10,000.00. |
| Tex. Penal Code § 20.05(b)(2) | 1. A smuggled person is raped. 2. A smuggled person is seriously hurt or killed. | 5-99 years or life in jail. | $0-$10,000.00. |
However, this table shows the jail terms for Smuggling of Persons committed before February 6, 2024.
Finally, if someone rapes a migrant during the crime or if someone is killed during the crime, then it becomes a first-degree felony. This carries between 5 to 99 years or life in jail.
Can you get probation for Smuggling of Persons in Texas?
Yes. Probation is possible under Tex. Pen. Code § 20.05. In addition, prosecutors in state court have more discretion to work out a probation deal than prosecutors in federal court. This is one of the few upsides to the Smuggling of Persons law in Texas.
Texas Legislative Update. House Bill 2. June 2023 Special Session.
Texas is cracking down on human smuggling. Currently, the house and senate are debating House Bill 2 (H.B. 2). If the legislature passes H.B. 2, then this law will raise the minimum jail term for Smuggling of Persons from 2 to 10 years.
However, as of 11 June 2023, this law has not passed. We will update this page with more information as it becomes available.
What should I do if I am arrested for alien smuggling in the Western District of Texas?
First, invoke your rights. Specifically, you have a right to remain silent. When police read you your Miranda rights, this is a red flag that you should ask for a lawyer and stop talking. This is the safest course of action because there is no downside to invoking your right to remain silent.
To explain, when you talk, your statements will often show that you knew the migrants were in the country without permission. And they will also likely show you intended to smuggle the migrants. This will make it easier for a jury to find you guilty of this crime.
Similarly, do not give police permission to search your phone. The police will often ask you, “do you mind if I look through your phone?” If you say yes, then the police will search your WhatsApp messages and GPS pin drops and use this information against you at trial.
Worse yet, they can use your statements to push up your jail time. For example, if you admit to smuggling the migrants and then police that “I have done this before.” That statement may push up your jail term. In short, the best thing to do is ask for a lawyer, remain silent, and do not consent to a search of your phone or property.
Second, after the police arrest you, call a lawyer to help you with the bail hearing in federal court.
Criminal Lawyer in San Antonio. Call Today for a Free Case Evaluation.
If police arrest you for an alien smuggling crime, then call 210-733-7575 today. We will give you a free case evaluation and provide you with a roadmap of what to expect in your case and possible defenses.
What is the difference between federal and state alien smuggling charges in Texas?
Federal charges under 8 USC § 1324 focus on the immigration status of the individuals and “alienage,” whereas Texas state law under Penal Code § 20.05 (Smuggling of Persons) applies to the smuggling of any person, regardless of citizenship status, and often carries stiffer minimum penalties.
Can I get probation for a first-time alien smuggling charge?
Yes, probation is possible in both state and federal courts, but it is not guaranteed. Eligibility often depends on having a clean criminal record, the number of individuals involved, and whether any aggravating factors like high-speed chases or firearms were present.
What are the penalties for human smuggling under Texas SB4?
Under Texas SB4, the minimum jail term for human smuggling was increased to 10 years. This law represents a significant crackdown by the state, making expert legal representation critical for anyone facing these charges.
Do prosecutors have to prove the person smuggled was an undocumented immigrant?
In federal court, yes—the prosecution must prove the individuals were noncitizens without permission to be in the U.S. However, under Texas state law, prosecutors only need to prove the intent to hide or conceal a person from authorities, regardless of that person’s legal status.
Should I consent to a phone search if I’m stopped for smuggling?
No. You should remain silent, ask for a lawyer immediately, and do not consent to a search of your phone. Prosecutors often use cell phone records and post-arrest statements as primary evidence to prove knowledge and intent.