Federal Immigration Crimes Defense Lawyer

People conflate these with immigration court. They are not the same thing. A removal proceeding is civil and administrative; a § 1324 or § 1326 prosecution is a federal felony case with a Guidelines range and a prison sentence.

What happens in the criminal case usually determines what happens in the immigration one. A plea entered without regard to its immigration consequences can foreclose relief that was otherwise available.

The statutes charged most often

• 8 U.S.C. § 1326 — reentry of a removed alien. The single most-charged federal felony in some Texas divisions.
• 8 U.S.C. § 1324 — bringing in, transporting, harboring, or encouraging unlawful entry.
• 8 U.S.C. § 1325 — improper entry. A misdemeanour on a first offense, and the basis of high-volume group prosecutions.
• 18 U.S.C. § 1546 — fraud and misuse of visas, permits, and other entry documents.
• 18 U.S.C. § 1425 — naturalisation fraud, which can also strip citizenship already obtained.
• 18 U.S.C. § 911 — false claim of United States citizenship.
• 18 U.S.C. § 1028 and § 1028A — identity document offenses, frequently charged alongside employment-related cases.

Why volume changes these cases

The Southern and Western Districts of Texas carry among the heaviest criminal caseloads in the country, and immigration offenses make up a large share of them. Cases are processed at a pace that has no parallel elsewhere in the federal system.

That has two consequences. Standard dispositions are well established, which makes resolution predictable — and it makes the unusual case easy to miss. A defendant with a genuine defense, a collaterally attackable removal order, or a Guidelines problem can be carried along by a process built for throughput unless someone raises it deliberately.

Fast-track and early disposition programmes

Most border districts operate early disposition or "fast-track" programmes authorized by U.S.S.G. § 5K3.1, offering a downward departure of up to four levels in exchange for a prompt guilty plea and waiver of certain rights.

These programmes are genuinely valuable and are also a trap for the unadvised. The waivers typically include appeal rights and the right to collaterally attack the prior removal order — which is precisely the defense that some § 1326 defendants have. Accepting fast-track before anyone has examined the removal order can surrender the best argument in the case for a four-level discount.

The criminal case and the removal case

A conviction here does more than produce a sentence. It can render someone permanently inadmissible, foreclose asylum or cancellation of removal, trigger an aggravated felony designation with mandatory removal consequences, and in naturalisation fraud cases undo citizenship.

Under Padilla v. Kentucky, 559 U.S. 356 (2010), defense counsel has a constitutional duty to advise on the immigration consequences of a plea, and failure to do so can support an ineffective assistance claim. Practically, that means the plea has to be negotiated with the immigration outcome in view — sometimes a longer sentence on a different count is the better trade.

The defenses that actually work

Collateral attack on the removal order. In a § 1326 case the prior removal is an element. If the removal proceeding was fundamentally unfair, the element can fail — subject to the strict requirements discussed on our illegal reentry page.

Alienage and identity. The government must prove the defendant is not a United States citizen or national. Derivative citizenship through a parent is more common than people assume and is regularly missed.

Knowledge and reckless disregard. In transporting and harboring cases under § 1324, the mental state is a real element and drivers who did not know or recklessly disregard status have a defense.

Fourth Amendment. Checkpoint and roving-patrol stops generate a large share of these cases, and the scope of authority at an interior checkpoint is narrower than at the border. See our suppression guide.

Related pages

Illegal reentry — 8 U.S.C. § 1326 · Human smuggling — 8 U.S.C. § 1324 · Bulk cash smuggling · Federal sentencing guidelines