What is a criminal-immigration lawyer?
A criminal-immigration lawyer helps people who are charged with an immigration crime. These types of cases are usually federal offenses, which means prosecutors file them in federal court. And as we will see below, these crimes cover a wide range of areas.
Above all, the key feature of these criminal cases is jail time. If a judge or jury convicts a person of an immigration crime, then that person may go to jail. Plus, if a noncitizen is convicted of a crime, then he or she may also be removed from the country. A criminal lawyer will help a client decide if he should plead guilty or fight the case.
In contrast, civil-immigration attorneys provide a different type of legal help. For example, they file paperwork to help people enter or stay in the country. In addition, they go to immigration court and defend people in removal hearings. And finally, they help people become LPRs or US Citizens.
Notably, there is a lot of overlap with these two practice areas. Both types of lawyers help people with immigration-law problems. But at the same time, they are also completely different practice areas. And they require lawyers to develop different skill sets.
In sum, picking the right type of attorney will depend on your needs. So let’s see when someone needs to hire a criminal-immigration lawyer.
When do I need to hire a criminal-immigration lawyer?
You should hire a criminal attorney if police arrest you for committing an immigration crime. Also, hire a criminal lawyer if police want to question you about an immigration crime. Moreover, these types of cases are usually federal crimes. This means your attorney should be familiar with federal criminal procedure.
As an example, the process for getting out on bond is different for state and federal crimes. In state court, a person arrested for a crime simply pays a bond to get out of jail. The easiest way to get out in state court is to pay a bail bondsperson to post your bond.
However, in federal court, the process is more formal. It requires the person arrested to show the following:
- The person is a US Citizen or has documents to be in the country;
- He or she is not a danger to the community;
- The person will appear in court for his court dates;
- A responsible person will supervise the defendant while he or she is on bond; and
- In serious cases, show that releasing a person on bond is the right thing to do.
A criminal lawyer will walk you through this process and increase your chances of getting out on bond in federal court. But this is just one example of how the criminal procedure is different in state and federal court. As a result, you should hire an attorney with experience handling immigration crimes in federal court.
But this raises an important question. How do you know if you are charged with an immigration crime? Let’s turn to that question next.
What is an immigration crime?
Immigration crimes cover a wide range of conduct. For this reason, they are hard to define. But they all have one thing in common. They target people who break the law so they can either enter or remain in the country. And this is a big issue along the border.
As an example, immigration crimes make up more than 70% of the cases filed in Texas federal courts. In fact, there are more immigration crimes along the Texas-Mexico border than there are gun and drug cases combined.
In particular, immigration crimes fall into four groups:
- Entry Crimes ( 8 USC § 1325 & 8 USC § 1326);
- Smuggling Crimes (8 USC § 1324);
- False Statements; and
- Violent crimes including Assault and Gun charges.
A close look at these crimes will explain why they make up more than 70% of the cases in Texas. Plus, they will show how a criminal lawyer can help a person charged with one of these crimes.
What are Illegal Entry Crimes?
Illegal entry happens when a noncitizen enters the country without permission. They are non-violent crimes. And for first time offenders, these are misdemeanor crimes that carry up to 6 months in jail.
In contrast, Illegal Reentry is a felony. A noncitizens breaks this law if ICE deports or removes him and he later returns to the country without consent. This is a more serious crime because it carries a higher jail term. The possible punishments are:
- 0-2 years in jail. For people with little or no criminal history;
- 0-10 years in jail. For people with some criminal history; and
- 0-20 years in jail. For people with heavy criminal history.
In short, the key to entry crimes is the client’s criminal record. The more serious the criminal record, then the higher the jail term may be.
Strikingly, sometimes a client’s criminal record is not as bad as it seems. In some cases the PSR overstates the client’s criminal history. And if the defense does not catch this mistake, then it could lead to a longer jail term.
What are human-smuggling crimes?
8 USC § 1324 is the human-smuggling law. This law makes it a crime to:
- Bring aliens into the country;
- Move aliens within the country;
- Shelter or hide aliens;
- Encourage aliens to enter the country;
- Enter into a deal with others to break these laws; and
- Help others to break these laws.
As we mentioned above, these are usually federal crimes. However, the State of Texas is beginning to file these cases in state court. Stated another way, Texas has its own human-smuggling law. And they are using this law to go after human smugglers in state court.
More importantly, Texas recently updated its smuggling laws with SB 576 to make it easier to convict smugglers in state court. Consequently, many smuggling cases are winding up in state court rather than federal court.
Nonetheless, the penalties for alien smuggling are similar in both state and federal court. In both cases they are felony crimes. And they both carry heavy jail terms. To see why this is true, let’s compare the jail time for both laws.
What are the penalties for alien smuggling?
Jail time for 8 USC § 1324 crimes:
- 0-5 years in jail. If the defendant smuggles people without financial gain;
- 0-10 years in jail. If the defendant smuggles people for profit;
- 0-20 years in jail. If defendant hurts another person during the crime or puts another person’s life in danger;
- Death penalty or life in jail. Possible if anyone dies during the crime.
Jail time for Texas Penal Code 20.05:
- 2-10 years in jail;
- 2-20 years in jail. Applies if: (1) the defendant creates a real risk that the person smuggled will be hurt or killed; (2) the smuggled person is under 18 years old; (3) the defendant smuggled people to make money; (4) the defendant possessed a gun during the crime; and
- 5-99 years or life in jail. Applies if: (1) the person smuggled a person who was raped during the crime; or (2) the person smuggled suffered grave injury or death.
State vs Federal Penalties for Human Smuggling:
The penalties show the overlap between state and federal smuggling crimes. Of major interest, they use similar facts to increase the possible jail time in a case. For example, if someone is hurt or killed during the crime, then the person’s jail time will go up. Similarly, if the defendant smuggled people to make money, then his jail time may also go up. Nevertheless, these laws differ in important ways.
To break the federal law, a person must smuggle an alien. In contrast, Texas law does not have this condition. Stated differently, state law only requires the defendant to smuggle any person. And that person does not have to be a noncitizen.
These laws also differ in criminal procedure. Both systems use the same facts to increase the jail time. But they take different roads to get to the same point.
The major reason is that the feds use guidelines to calculate a jail term. However, state courts do not use guidelines. Instead, state judges use their best judgement to figure out what the jail time should be in each case.
To see how this works, we need to take a closer look at factors that increase the jail term in smuggling cases.
What are factors that may increase the jail time for human smuggling?
Moreover, these guidelines will increase the jail time if:
- the defendant smuggled people to make money;
- the defendant smuggled large numbers of people;
- he or she did this crime before;
- he or she smuggled minors;
- the defendant had a gun during the crime;
- he or she created a real risk that the people would be hurt or killed;
- people were hurt or killed during the crime;
- the defendant held people for ransom, or the defendant held the people to prostitute them; or
- he or she smuggled people in bulk, which made the crime dangerous.
If some or all of these factors are present in a federal case, then the guideline range for the client will go up. This is important because the guideline ranges give people a good idea of how long they will be in jail.
Also, if a client does not agree with these factors, then he can object to the PSR. If the judge agrees that the factors do not apply, then this will lower his guideline range and his jail term.
Conversely, state judges take these facts into account without using the guidelines. And the final sentence in state court will depend on how much weight the judge gives each of these factors. This makes it harder to tell how much jail time a person will get in state court.
What is an Assault on a Border Patrol Agent?
- Simple assault;
- Serious assault without a weapon; and
- Serious assault with a dangerous or deadly weapon.
Simple assault is a misdemeanor. It carries a penalty of up to one (1) year in jail and up to a $100,000.00 fine.
Serious assault without a weapon is a Class D felony. It carries up to eight (8) years in jail and up to a $250,000.00 fine.
Finally, serious assault with a deadly weapon is a Class C felony. It carries up to twenty (20) years in jail and up to a $250,000.00 fine.
Furthermore, these crimes usually occur on the border. For instance, aliens sometimes push or shove the border patrol agents during the arrest. If this happens, then prosecutors may charge the alien with simple assault. But if the alien escalates the assault, then he may face stronger penalties. Fortunately, this crime is not common. That is, most encounters between border patrol agents and aliens are peaceful.
What are Immigration Gun Crimes?
The law bans some groups of people from buying or owning guns. One group that is not allowed to buy or own a gun are people who enter the country without papers. If a noncitizen buys or gets a gun in the United States, then he maybe hit with a 18 USC §922(g)(5) gun charge.
This crime carries the following penalties:
- Up to 10 years in jail; and
- Up to a $250,000.00 fine.
922(g)(5) gun cases are common along the border.
In addition, sometimes people who are not allowed to buy a gun ask a friend to buy the gun for them. This is a straw purchase. It is a crime under 18 USC§922(a)(6). And it carries the following penalties:
- Up to 10 years in jail; and
- Up to a $250,000.00 fine.
Most important of all, this crime is big business along the border. Cartels in Mexico pay people lots of money to buy guns in Texas. The buyers then secretly send the guns to Mexico. And ultimately, Cartels uses these guns to fight the drug war in Mexico.
What happens if you lie to Immigration Officials?
18 USC § 1001 makes it a crime to lie to federal officials. And prosecutors frequently uses this law to charge people with lying to ICE agents. But prosecutors can file other charges as well. For example, the feds can charge people with the following crimes:
- Lying about citizenship;
- Using, making, or selling fake or stolen IDs;
- Misusing citizenship documents; and
- Impersonating another person in a naturalization proceeding.
These are just a few examples of false-statement crimes. And the jail time will depend on the charges filed in each case. This means the facts in each case are important. But above all, these examples show that prosecutors have many tools to go after people who lie to ICE agents.
How can a San Antonio Criminal Immigration Attorney help you?
A criminal lawyer can guide you through the system and help you decide if you should fight your case or work out a deal. Likewise, a criminal lawyer can help you avoid common pitfalls and traps that are part of the system. But most important of all, a criminal lawyer will be your voice in court if you decide to fight your case.
San Antonio Criminal Defense Attorney Genaro Cortez
Genaro Cortez is a defense lawyer in San Antonio, Texas. He’s handled over 200 ICE cases since 2003. These cases include entry crimes, smuggling charges, and lying to ICE agents. Plus, he helps clients charged with gun and drug crimes along the border. His service areas include San Antonio, Del Rio, Laredo, El Paso, Houston, and Austin.
If you have a question about your ICE criminal case, then call 210-733-7575 today for a free consult.