Crossing the Borders – Federal

Immigration Laws

While illegal entry into the United States is a federal crime, that doesn’t mean illegal immigrants don’t have rights under the constitution. The Fourteenth Amendment applies to anyone within the borders of our country and ensures the right to equal protection of the law and the right to due process. This means that a person who has been charged with federal immigration crimes has the right to a hearing to defend against deportation. This includes the right to an attorney, although the government isn’t required to pay for it.

Illegal Entry

Under US Penal Code 8 U.S. Code § 1325, illegal entry (or “improper entry”) carries criminal penalties (fines and jail or prison time), in addition to civil penalties and immigration consequences (deportation and bans from future entry). Improper entry by an alien can be charged as follows:

  • Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts;
  • Improper time or place; civil penalties – any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty;
  • Marriage fraud – Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.

8 U.S. Code § 1326 is the statute that covers unlawful reentry and applies to any person who has entered or attempted to enter the country who has previously been deported. In all of these cases, both the person who enters the country illegally, as well as any US citizen who aids in the improper entry (or re-entry) can be charged under federal immigration law.

Immigration Enforcement Agencies

Issues of immigration are handled by three agencies within the Department of Homeland Security (DHS):

  • U.S. Customs and Border Protection (“CBP”) – the agency responsible for protecting the borders of the U.S. and, therefore, control access to the country.
  • U.S. Immigration and Customs Enforcement (“ICE”) – the agency responsible for enforcing immigration laws within the country. In addition to investigating, arresting, and detaining illegal immigrants, ICE is also responsible for their removal.
  • U.S. Citizenship and Immigration Services (“CIS”) – the agency that is responsible for the adjudication of applications for immigration benefits.

Prosecution of federal immigration crimes is handled by the Executive Office for Immigration Review (“EOIR”) of the U.S. Department of Justice. There are two courts within the EOIR: the Immigration Court and the Board of Immigration Appeals.

Coyote Smuggling – The Other Side of Illegal Immigration

Within 8 U.S. Code § 1325, there is a provision regarding “immigration related entrepreneurship fraud.” More commonly known as smuggling or coyote smuggling, this refers to any person who accepts money, or establishes a commercial enterprise with the purpose of helping a person enter the US illegally in violation of immigration laws. It’s important to note that smuggling is not the same as human trafficking. When a person crosses the border with a coyote, he or she is doing it knowingly and willingly and has paid for the service. In contrast, a person brought into the country illegally by a trafficker is an unwilling participant, being forcibly smuggled across the border most likely for exploitative purposes.

Smuggling people across the borders into California has become big business – and not all smugglers are the same. There are some who are engaging in the act with good, albeit misdirected, intentions because they want to help people come to the United States to start living a better life. And then there are those whose morals are not so good. These type of coyotes may be in it solely for the money and frequently bring people over the borders under dangerous conditions, often cramming as many people as possible into a truck, not providing adequate food and water during the trip and even leaving people stranded if they can’t keep up with the group.

Talk to A Federal Criminal Lawyer

Even in clear cases of improper entry, just because a person is in the United States illegally, doesn’t mean that he or she will be deported, face jail time or be required to pay a fine. Each case is different and this is why it’s important to obtain an attorney who understands federal immigration laws if you have been charged with illegal entry. In November 2014, Executive Actions on Immigration were established in order to “crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.” These actions help to distinguish the difference between Improper Entry, which is a crime, and Unlawful Presence, which is not. They include provisions designed to assist law abiding aliens — particularly children, people who entered the U.S. while under the age of 16 and the parents of children who were born within the country – with gaining legal resident status.


If you or a loved one has been charged with a federal crime, call to talk with a skilled criminal defense lawyer today: 619-363-1405 or email us at