How Federal Sentencing Works for Immigration Crimes in California

 

How Federal Sentencing Works for Immigration Crimes in California

Trying to understand how federal sentencing works for immigration crimes in California can be really confusing. There’s a lot of complicated laws and legal precedents that affect the final sentence someone receives. This article tries to break it down into simpler terms that everyday folks can understand.

First off, immigration is mostly handled at the federal level, not the state level. So even if you get arrested by local police in California, if it’s for an immigration violation, it will usually get passed over to federal prosecutors. They are the ones who decide what charges to bring and what kind of plea deals to offer.

Types of Immigration Crimes

Some of the most common federal immigration crimes in California include:

• Illegal entry into the U.S.
• Illegal re-entry after deportation
• Visa fraud
• Harboring undocumented immigrants
• Smuggling undocumented immigrants

There’s a bunch of different laws that cover these crimes, but the main ones are 8 U.S.C. Section 1325 for illegal entry, 8 U.S.C. Section 1326 for illegal re-entry, and 8 U.S.C. Section 1324 for harboring/smuggling.

Factors That Affect Sentencing

If someone is convicted of an immigration crime in federal court, the final sentence will depend on a bunch of factors:

• Criminal history – More prior convictions generally means a longer sentence.
• Type of plea deal – Pleading guilty early usually gets a lighter sentence.
• Sentencing guidelines – Federal judges use these to calculate sentence lengths.
• Mandatory minimums – Set a minimum sentence length for some crimes.
• Aggravating factors – Can increase the sentence if present.
• Mitigating factors – Can decrease the sentence if present.

Let’s look at each of these in a little more detail…

Criminal History

When calculating a sentence, federal judges will always look at someone’s criminal record. The more serious prior convictions they have, and the more recent they are, typically the harsher the sentence will be. Judges need to see a “pattern of lawlessness” before they’ll max out a sentence. One old conviction usually won’t do it.

Type of Plea Deal

Most federal cases end up in a plea deal rather than going to trial. If someone pleads guilty early on, especially before indictment, prosecutors will often offer a lighter sentence as part of the deal. The longer someone waits to take a deal or goes to trial, the harsher their punishment will likely be if convicted.

Sentencing Guidelines

Federal judges use the U.S. Sentencing Guidelines to calculate the “appropriate” sentence range for a crime based on the details of the case. While judges don’t have to follow the guidelines exactly, they are designed to promote uniformity in sentencing across the country.

Mandatory Minimums

For some serious immigration crimes, like illegal re-entry after deportation, there are “mandatory minimum” sentences set by statute. This means the judge has no discretion to go lower than the minimum, which is often several years in prison.

Aggravating Factors

These are facts about the crime that could cause a judge to issue a longer sentence. For immigration crimes, aggravating factors can include:

• Previous deportations
• Longer criminal history
• Re-entering very soon after deportation
• Using false documents or identities
• Endangering lives while smuggling

Mitigating Factors

These are facts that could persuade the judge to give a shorter sentence. For immigration crimes, mitigating factors can include:

• Minimal criminal history
• Nonviolent offense
• Playing a minor role in the crime
• Remorse and acceptance of responsibility
• Family ties in the U.S.

Common Federal Sentences for Immigration Crimes

Here are some typical sentences for common immigration crimes:

• Illegal entry – Usually just a few months in jail if pleading guilty. Up to 2 years maximum sentence.
• Illegal re-entry – Typically 1-3 years in prison, with 2 year mandatory minimum if prior removal.
• Visa fraud – Around 1-2 years in prison in most cases.
• Harboring immigrants – 1-2 years typically, but up to 10 years possible.
• Smuggling immigrants – 2-4 years on average, with higher sentences for dangerous smuggling.

As you can see, illegal re-entry and smuggling tend to have the longest average sentences. But the final sentence always depends on the specific circumstances.

How Sentences Impact Immigration Status

Beyond just serving the time in prison, immigration-related convictions can also lead to:

• Deportation – Almost guaranteed after aggravated felony.
• Inadmissibility – Barred from lawful re-entry to U.S.
• Visa revocation – For those here on temporary visas.
• Detention – Mandatory detention after release from prison.

Any felony conviction makes deportation almost certain. But even some misdemeanors can be grounds for removal. Talking to an immigration attorney is important to understand exactly how a plea deal or conviction might impact your status.

Defenses Against Immigration Charges

There are a variety of defenses that skilled immigration attorneys can raise to fight these charges, for example:

• You are actually a U.S. citizen
• You had legal permission to enter the U.S.
• You qualify for asylum or other protections
• You were coerced or tricked into committing the crime
• You didn’t understand the consequences when you pled guilty

Raising any plausible defense can sometimes lead prosecutors to offer a better plea deal. But once convicted, it becomes much harder to avoid deportation and other immigration consequences.

Takeaways

The main takeways about federal sentencing for immigration crimes in California:

• Federal prosecutors handle these cases, not state
• Criminal history and plea deals greatly affect sentence length
• Illegal re-entry and smuggling often have multi-year sentences
• Almost any felony conviction leads to deportation
• Consult immigration attorneys to understand consequences

Hopefully this gives you a better sense of how complex sentencing can be for immigration violations. Let me know if you have any other questions!

References

[1] Immigration and Sentence, ILRC, 2020.

[2] California Committee on Revision of the Penal Code, ILRC, 2020.

[3] How a Sentence for an Immigration Offense May be Lower if Imposed Today, FD.org, 2023.

[4] How Does A Criminal Conviction Impact Immigration Status?, The Justice Firm, 2022.

[5] Immigration Consequences of Criminal Convictions, DOJ, 2011.

[6] Aggravated Felonies: An Overview, American Immigration Council, 2021.