The current administration is very serious about enforcing our immigration laws, and unlike the previous administration, it has not placed any restrictions on which provisions can be enforced. As border czar Tom Homan has said, “We’re enforcing the laws that Congress enacted and a president signed.”
Most of the provisions in the Immigration and Nationality Act pertain to civil offenses, such as deportability and eligibility for relief from deportation. But the law also includes criminal provisions — including ones that make giving prohibited assistance to undocumented immigrants a felony.
Individuals who help undocumented immigrants need to know that they may be committing a serious criminal offense that can result in severe consequences, including substantial fines and lengthy prison sentences. In extreme cases, offenders may face life imprisonment, or even the death penalty.
This does not mean that you can’t help someone who might be an undocumented immigrant without subjecting yourself to prosecution. The main criminal provisions that pertain to assisting undocumented migrants can be found in 8 U.S.C. § 1324(a)(1)(A), which includes the following offenses:
Smuggling: Bringing or attempting to bring a person into the United States at any place other than a port of entry knowing that he/she is an alien is a criminal offense.
For instance, in January 2025, Isai Orona was sentenced to four and a half years in federal prison for smuggling more than 2,500 undocumented immigrants into the United States. He had a network of drivers and 12 different cars for transporting the illegal crossers. The judge also ordered him to pay a $250,000 fine.
Transporting: It is a criminal offense to provide transportation within the United States for an alien knowing “or in reckless disregard of the fact that [the] alien has come to, entered, or remains in the United States in violation of law.”
The type of conduct this provision was meant to address is that of a driver who is paid to pick up undocumented immigrants right after they've made an illegal crossing, taking them into the interior of the country. It should not apply to someone who gives a ride to a friend or neighbor without knowing he/she is an undocumented immigrant.
Harboring: It is a criminal offense to conceal, harbor or shield an alien from detection “knowing or in reckless disregard of the fact that [the] alien has come to, entered, or remains in the United States in violation of law.”
To warrant a conviction, the defendant’s actions must have facilitated the undocumented immigrant’s ability to remain here unlawfully, but that requirement can be interpreted differently by different people.
Here is an example of applying the provision the way it should be applied: A man named Lopez had six homes that he rented to undocumented immigrants. He didn’t just provide them with a place to stay; he also helped them with job applications and arranging sham marriages so they could obtain green cards. Lopez significantly facilitated the ability of undocumented immigrants to stay in the U.S. unlawfully.
Encouraging: It is a criminal offense to encourage or induce an alien “to come to, enter, or reside in the United States while knowing or in reckless disregard of the fact that the alien’s entry or presence is or will be in violation of law.”
The ACLU claimed that this provision could criminalize everyday conversations such as:
“A grandmother who tells her undocumented grandchild that she doesn’t want them to leave her. A doctor advising a patient with an expiring student visa that the patient needs medical treatment that is only offered in the United States. A professor advocating for DACA recipients to remain in the country no matter what so that Congress will be pressured to grant a path towards citizenship, while pointing out how her university’s policy of accepting DREAMers has enriched her teaching experience.”The Supreme Court upheld this provision when it was challenged for allegedly violating free speech and being overly broad, because it only forbids “the purposeful solicitation and facilitation of specific acts that violate federal law.”
Telling an undocumented immigrant that you don’t want him or her to leave, or giving that person reasons to stay, should not be interpreted as a purposeful solicitation or facilitation of specific acts that violate federal law.
The U.S. Sentencing Commission provides information on maximum sentences for violating 8 U.S.C. § 1324(a)(1)(A) in its Primer on Immigration Offenses.
The statutory maximum for bringing or attempting to bring an undocumented immigrant into the United States is 10 years. The statutory maximum for transporting, harboring or encouraging a migrant to make an illegal entry without being paid for doing it is five years. The maximum increases to 10 years if any of these offenses is committed for financial gain. The maximum increases to 20 years if the offense causes serious bodily injury or places the life of another person in jeopardy. And it becomes life in prison or death if the offense causes the death of another person.
The maximum penalty may be enhanced an additional 10 years if the offense is commercial transportation of large groups in a life-threatening manner or the offense resulted in a life-
threatening health risk to people in the United States. In addition, individuals convicted of these offenses may be subject to forfeiture of the vessel, motor vehicle or aircraft that was used in the commission of the offense.
The possibility of innocently becoming engaged in criminal activity shouldn’t stop anyone from helping people who might be undocumented immigrants. Such conduct isn’t likely to result in being prosecuted for a criminal offense. But, it is necessary to be aware that providing prohibited assistance to an undocumented immigrant can have severe legal consequences — and to know what types of assistance are prohibited.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.
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