Alien Smuggling Defense Attorney in San Antonio, Del Rio, and South Texas.
Attorney Genaro R. Cortez is an alien smuggling lawyer in San Antonio and Del Rio, Texas. He has defended over 200 federal immigration cases since 2003 — including first-time alien smuggling charges in the Western and Southern Districts of Texas. If police arrested you or someone you love for human smuggling in San Antonio, Del Rio, or anywhere in South Texas, call 210-733-7575 today for a free case evaluation.
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. Police are 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 San Antonio, Del Rio, or South Texas.
Table of Contents
Federal Alien Smuggling Charges in Texas: 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:
- Bring aliens into the country;
- Transport aliens within the country;
- Harbor or hiding aliens;
- Encourage aliens to enter the country;
- Conspire with others to commit these crimes; and
- Aid and abet 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 you with both 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. Protect your rights: request a lawyer and remain silent. Also, do not consent to a search of your phone. Make them get a search warrant for your phone.
Penalties for Federal Alien Smuggling in San Antonio and Del Rio
| 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 Alien Smuggling in the Western District of Texas?
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, must qualify with a low sentencing guideline range. Second, the judge must 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.
Texas Smuggling of Persons Laws: San Antonio and Del Rio Defense.
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?
| Tex. Penal Code | Description | Penalty until February 6, 2024. | Penalty After February 6, 2024. | Fine. |
|---|---|---|---|---|
| Tex. Penal Code § 20.05(b) | Base Offense. | 2-10 years in jail. | 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. | 10 to 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. | 10 to 99 years or life in jail. | $0-$10,000.00. |
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.
2026 Case Law Update
In Gutierrez v. State, 721 S.W.3d 639, 646 (Tex. App.—Corpus Christi-Edinburg 2025, pet. filed), the Thirteenth Court of Appeals affirmed a Kinney County conviction for smuggling of persons under Texas Penal Code § 20.05(a)(1)(A). The court held that the state’s neutral criminal statute—which prohibits transporting any individual with the intent to conceal them from law enforcement—is not preempted by federal immigration law because it focuses on the conduct of concealment rather than the specific immigration status of the passengers.
This case is important because it allows state prosecutors to file alien smuggling charges in state court. Before 2021, many practitioners believed that the Supremacy Clause barred states from filing these cases in state court. Unfortunately, the local court of appeals ruled otherwise.
As a result, local prosecutors can now file these charges in Uvalde, Kinney, Eagle Pass, and Val Verde state district courts. However, the Gutierrez case is still going through the appellate process. We will update this page when this issue gets resolved.
Arrested for Alien Smuggling in San Antonio or Del Rio? What to Do Next
First, invoke your rights. Specifically, you have a right to remain silent. When police read you your Miranda rights, treat it as a red flag, 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 tell the 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.
San Antonio Alien Smuggling Lawyer — Free Case Evaluation
If police arrest you for an alien smuggling crime in San Antonio, Del Rio, Eagle Pass, Laredo, or anywhere in South Texas, call 210-733-7575 today. Attorney Genaro Cortez will give you a free case evaluation, explain what to expect in your case, and discuss possible defenses. With over 20 years of experience handling federal and state immigration crimes, he knows how to fight for the best outcome in your case. Contact us today.
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 in the Western District of Texas?
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.
Can I get charged with alien smuggling even if I did not get paid?
Yes. Payment, or pecuniary benefit, is a factor that raises your range of punishment. But prosecutors do not have to prove you got paid to convict you of either Transporting Aliens under 8 USC 1324 or Smuggling of Person under Tex. Penal Code 20.05.
Can Texas state police arrest me for federal alien smuggling?
While alien smuggling is traditionally a federal crime (8 USC § 1324), Texas now uses Penal Code § 20.05 to prosecute similar conduct in state court. We often argue that these state charges are preempted by federal law under the Supremacy Clause.
Does the “Gutierrez v. State” ruling mean I can’t fight my charges?
No. While the Thirteenth Court of Appeals recently upheld a conviction in Gutierrez, the case is still moving through the appellate process. We continue to raise these issues to preserve your rights for future review.