Charged with Transporting Undocumented Immigrants/Illegal Immigrants

There could be many charges if you pick up someone who crossed the border illegally, however the main charge you would expect is an allegation that you violated 8 U.S.C. 1324, which criminalizes transporting or moving someone who crossed illegally.

First, the government would have to show that one or more people entered illegally. Second, that you either knew or recklessly disregarded the fact that they entered illegally. Third, that you transported them inside the U.S. (picked them up in a car). And fourth, that you acted willfully in a manner that furthered their illegal entry.

This is a fifth element that elevates, or makes the crime more serious, if it is alleged that you committed this offense for commercial advantage or private financial gain.

Potentially, yes. This crime is a felony. There are various aggravating factors that will play into your case. Beyond the monetary element mentioned above, any of the following can affect you:

• How many undocumented aliens is it alleged were in your vehicle?
• Did anyone suffer a physical or serious physical injury or was anyone’s life in jeopardy?
• Is it alleged that you did this before?
• How much money did you stand to receive or actually receive?

Any number of the above circumstances will affect your sentence if convicted.

In the event you are charged with the least serious circumstances, generally this is your first offense, no one got hurt, and it was only one or two illegal aliens, your case will likely have a five (5) year maximum sentence, or ten (10) if done for financial gain. Thankfully there is no mandatory minimum sentence, meaning the Judge does not HAVE to sentence you to prison.

If other circumstances exist, such as this is your second time doing this – even if never formally convicted of it – you may face a three (3) year mandatory minimum along with a ten (10) year maximum. That means that if you are convicted under these circumstances, even if the Judge believes you should receive no prison time, by law, they would be required to sentence you to at least three (3) years.

Alternatively, if the most severe aggravating factors exist, your mandatory minimum could increase to five (5) years, and your maximum penalty up to fifteen (15) years.

If at the very end of the day, you are going to be sentenced for such a case, then no, the Judge is required to sentence you to at least the minimum. However, there are ways to potentially avoid a mandatory minimum sentence prior. This is why getting a good defense attorney as soon as possible after you are arrested is critical. There are ways to potentially avoid such sentences at the start of the case and become more difficult as the case progresses.

Do not waive any of your rights. Law enforcement, border patrol, or others may try to speak with you, try to gain confessions to key facts or elements, and most importantly may try to get consent to search you or your property – most importantly your cell phone.

Invoke your right to remain silent and your right to have an attorney. Ultimately, giving a voluntary statement to law enforcement may actually help or assist your case. But that is never the case unless an attorney is with you, having gone over your case with you, and having spoken to the government to ensure you are protected in doing so. By speaking early on, you can make your case harder to defend and potentially increase your penalties.

This is one of the most common issues these cases present. You can be convicted for this crime if you “knew or recklessly disregarded the fact” that the people you picked up were here illegally. So even if you truly did not know, if there are facts and circumstances that make a reasonable person (like a juror) believe you ‘recklessly disregarded’ the fact they were likely here illegally, you CAN be convicted. The following types of facts are SOME of the many circumstances that could be relevant to a finding:

• How close to the border did you pick them up?
• How did they approach your car? From the woods? From down a random street?
• Did they speak English?
• How was it planned for you to pick them up? With them directly or with a third party?
• Do you drive for a living? Were you offered a large amount of money, including more than you normally would for driving someone?
• Did the circumstance get set up through normal channels, texts, and calls, or were applications like What’s App used to mask or hide the communications?
• Have you, or someone close to you, immigrated to the United States and therefore have some knowledge as to the legal and proper way to enter?
• Have you, or someone close to you, crossed into the country illegally, and therefore have some knowledge as to the illegal ways people enter?

Any number of these factors, and many more, could affect whether you could be found to have ‘recklessly disregarded’ the fact the individuals had crossed the border illegally. But it is important to reiterate, even if you truly did not know they had crossed improperly, you could still be guilty of this serious offense.