First-time Alien Smuggling Defense
Immigration is a big issue along the Texas-Mexico border. And so are alien-smuggling crimes. As result, state and federal police are patrolling highways along the border looking for telltale signs of alien smuggling.
The end result is that it is now possible to face either a state or federal charge for alien smuggling. We will show you how the state and federal alien smuggling laws work. More importantly, we will show you options to consider if you are charged with a human smuggling crime.
Federal Alien Smuggling under 8 USC § 1324
8 USC § 1324 is the federal alien smuggling law. However, this law covers a wide range of conduct. In particular, this law makes it a crime to:
- Bring aliens into the country;
- Transport aliens within the country;
- Harbor or hide aliens;
- Encourage aliens to enter the country;
- Conspire with others to commit these crimes; and
- Aid or abet others to commit these crimes.
Stated differently, 8 USC § 1324 covers every method of alien smuggling. 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 the people were noncitizens with 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 them to show the defendant knew and intended to smuggle people.
What are the most common penalties for Federal Alien Smuggling?
| Statute | Description | Jail Time | Fine |
|---|---|---|---|
| 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. |
| 1324(a)(1)(B)(i) | Transporting, Harboring, or Encouraging aliens to enter the country for financial gain. | 0-10 years. | $0-$250,000.00. |
| 1324(a)(1)(B)(iii) | Defendant causes serious bodily injury. | 0-20 years. | $0-$250,000.00. |
| 1324(a)(1)(B)(iv) | Crime results in death. | Death penalty or life in prison possible. | $0-$250,000.00. |
| 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. But it is hard to get this result. To get probation in a federal alien smuggling case you need to things to happen. First, you need to have low sentencing guidelines. Second, you need a judge to grant your request. For these reasons, it is tough to get probation in a federal human smuggling case.
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. Like the federal law, Texas makes it a state crime to smuggle people.
Second, the penalties for Tex. Pen. Code § 20.05 are higher than the penalties for federal alien smuggling. Of major interest, in June 2023, Texas passed H.B. 2 that gives prosecutors more power to go after human smugglers. This law raises the minimum jail term for Smuggling of Persons from 2 to 10 years. The table below lists the updated jail terms for Smuggling of Persons in Texas.
| Tex. Pen. Code | Description | Penalty | Fine |
|---|---|---|---|
| § 20.05(b) | Base offense. | 2-10 years in jail. | $0-$10,000.00. |
| § 20.05(b)(1) | Creates a risk of serious injury or death. Smuggled person is a minor. Smuggled person for profit. Defendant or another person possessed a gun during the crime. The smuggler flees from police. | 2-20 years in jail. | $0-$10,000.00. |
| § 20.05(b)(2) | A smuggled person is raped. A smuggled person is seriously hurt or killed. | 5-99 years or life in jail. | $0-$10,000.00. |
| House Bill 2 | Smuggling of Persons. Triggers 10 year minimum if:
| 10-20 years in in jail. | $0-$10,000.00 |
| House Bill 2 | Smuggling of Persons. Triggers 10 year minimum if:
| 10-99 years or life in jail. | $0-$10,000.00. |
Preemption Defense to Smuggling of Persons in Texas.
As we mentioned above, Texas and federal law overlap and conflict when it comes to alien smuggling. For instance, both make it a crime to smuggle people. And they conflict because Texas’ penalties are stiffer than the federal penalties.
This creates two major problems for Texas’ Smuggling of Persons law. The first is field preemption. The second is conflict preemption. This is because the Supremacy Clause states that federal law is the supreme law of the land.
In our case, this means that the Federal Alien Smuggling law trumps the Texas’ Smuggling of Persons law. It does so because Congress decided to exclusively occupy the field of immigration law.
This conflict comes up because Texas started cracking down on human smugglers using state law rather than federal law. In other words, state police can arrest someone for human smuggling, but it is up to a federal prosecutor—not a state prosecutor—to file charges in federal court. This is the essence of field preemption.
Similarly, the penalties for Smuggling of Persons in Texas are harsher than the federal penalties for alien smuggling. This is where the conflict preemption problem comes up. Texas penalty structure conflicts with the federal penalty structure.
The bottom line is that a strong defense to a Smuggling of Persons charge in Texas should include a motion to dismiss based on the Supremacy Clause of the U.S. Constitution.
Further, this is still an open question. Judges and appellate courts are working through this problem. But there is no downside in filing this motion. If you lose the motion, then you can file an appeal. It is a fundamental issue the defense should not overlook.
Can you get probation for Smuggling of Persons in Texas?
Yes. Probation is possible under Tex. Pen. Code § 20.05.
Alien Smuggling Defense in Texas.
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.