New Jersey Federal Immigration Crimes Lawyer: Illegal Reentry, Smuggling & Document Fraud

Federal immigration prosecutions are among the most common criminal cases in the United States, and enforcement priorities have shifted sharply toward criminal charges in recent years. In New Jersey, which has one of the largest immigrant populations in the country, federal prosecutors bring cases involving illegal reentry after deportation, alien smuggling and harboring, visa and document fraud, marriage fraud and false claims to citizenship. These charges carry the double threat of federal prison and removal from the United States. If you or a family member has been arrested by ICE or charged in federal court, a New Jersey federal immigration crimes lawyer can protect your rights in the criminal case while coordinating with immigration counsel on the removal consequences.

Keith Oliver Criminal Law represents non-citizens and U.S. citizens charged with immigration-related offenses in the U.S. District Court in Newark, Trenton and Camden.

Illegal Reentry After Removal – 8 U.S.C. § 1326

Illegal reentry is the most frequently charged federal immigration crime. The government must prove that the defendant (1) is not a U.S. citizen or national; (2) was previously denied admission, excluded, deported or removed, or departed while an order of removal was outstanding; (3) thereafter entered, attempted to enter or was found in the United States; and (4) did not have the consent of the Attorney General or the Secretary of Homeland Security to reapply for admission.

Many New Jersey cases arise when ICE encounters a previously removed person after a local arrest, a traffic stop, a fingerprint match at a county jail, or a targeted enforcement operation. The “found in” language means the offense is often treated as continuing until the person is discovered by immigration authorities, which affects the statute of limitations.

Penalties Depend on Criminal History

The base offense carries up to two years. If the person was removed after a conviction for three or more misdemeanors involving drugs or crimes against the person, or for a felony other than an aggravated felony, the maximum rises to ten years. If the removal followed a conviction for an “aggravated felony,” a broad immigration-law category that can include some theft, fraud and drug offenses, the maximum is 20 years.

The Sentencing Guidelines for illegal reentry, U.S.S.G. § 2L1.2, start at a base level of 8, then add levels based on prior illegal reentry convictions and on convictions sustained before and after the first removal order, measured by the length of the sentences imposed. Defendants with minimal records may face guideline ranges of a few months, while those with serious prior convictions can face several years.

Defenses to Illegal Reentry

• Citizenship. Some defendants are actually U.S. citizens through birth abroad to a citizen parent or through “derivative” citizenship when a parent naturalized. Citizenship is a complete defense and is more common than people expect.
• Challenging the prior removal order. Under § 1326(d), a fundamentally unfair removal proceeding, such as one where the person was denied the opportunity to seek relief or did not receive proper notice, may be collaterally attacked if the statutory requirements are met.
• Identity. The government must prove the defendant is the same person who was removed. Fingerprint comparisons and A-file records can be challenged.
• Permission to reapply. A defendant who obtained permission to reapply, or who entered under a valid visa or parole, may not have violated § 1326.
• Prior conviction classification. Whether a prior conviction counts as an aggravated felony, or triggers guideline enhancements, often depends on technical “categorical approach” analysis that can significantly reduce exposure.
• Fast-track and variance arguments. Prompt plea agreements under a fast-track program and arguments regarding cultural assimilation, family ties and the reasons for return can reduce sentences.

Alien Smuggling, Transporting and Harboring – 8 U.S.C. § 1324

Section 1324 punishes several distinct acts: bringing a non-citizen into the United States at a place other than a designated port of entry; transporting a non-citizen within the United States knowing or in reckless disregard of the fact that the person is here unlawfully, in furtherance of that unlawful presence; concealing, harboring or shielding a non-citizen from detection; and encouraging or inducing a non-citizen to come to or reside in the United States in violation of law. Conspiracy and aiding and abetting are also covered.

Penalties are calculated per person. Offenses committed for commercial advantage or private financial gain carry up to ten years per non-citizen involved; other offenses carry up to five years; offenses causing serious bodily injury or placing life in jeopardy carry up to 20 years; and offenses resulting in death carry up to life. Certain bringing-in offenses carry mandatory minimums of three to five years.

In New Jersey, harboring cases have been brought against employers who housed and employed workers off the books, labor brokers, landlords who rented to large numbers of undocumented workers while concealing them, and individuals who arranged transportation from the southern border. The key defense questions usually involve knowledge and intent: did the defendant know the person’s status, and did the conduct actually facilitate unlawful presence, rather than ordinary employment, family support or charitable assistance? In United States v. Hansen (2023), the Supreme Court upheld the “encourages or induces” provision only by reading it narrowly to require intentional solicitation or facilitation of specific unlawful acts.

Visa, Passport and Immigration Document Fraud

Under 18 U.S.C. § 1546, it is a crime to forge, counterfeit, alter, possess, use or obtain immigration documents such as visas, green cards and employment authorization documents, or to knowingly make false statements under oath in immigration applications. The maximum is 10 years for a first or second offense, 15 years for other offenses, 20 years if the offense facilitates drug trafficking, and 25 years if it facilitates terrorism. Related offenses include passport fraud (18 U.S.C. §§ 1542–1544), false claims to U.S. citizenship (18 U.S.C. § 911 and 1015), and naturalization fraud (18 U.S.C. § 1425), which can lead to revocation of citizenship.

New Jersey cases have involved fraudulent H-1B petitions by staffing and IT consulting firms, sham employment letters, false asylum applications prepared by unlicensed “notarios,” and fraudulent EB-5 investor petitions. Preparers, employers and attorneys can face charges along with applicants.

Marriage Fraud – 8 U.S.C. § 1325(c)

A person who knowingly enters into a marriage for the purpose of evading immigration laws faces up to five years in prison and a $250,000 fine. Marriage fraud cases often arise from USCIS interviews, site visits by Fraud Detection and National Security officers, or tips from estranged spouses. Because many genuine marriages have unconventional features, such as separate residences for work reasons, age differences or cultural differences, investigators sometimes misinterpret legitimate relationships. Prosecutors must prove that the parties intended to evade immigration law at the time they married.

The Intersection of Criminal and Immigration Consequences

For non-citizen defendants, the criminal case and the immigration case are intertwined. A plea to the wrong offense can trigger mandatory detention, removal and a permanent bar to returning. Under Padilla v. Kentucky (2010), defense counsel must advise clients of these consequences, and New Jersey courts have been at the forefront of enforcing that duty. Careful negotiation of the statute of conviction, the factual basis and the sentence imposed can sometimes preserve eligibility for relief such as cancellation of removal or asylum-related protection, even when a conviction cannot be avoided. We coordinate closely with immigration attorneys so that every decision in the criminal case is made with full awareness of its immigration impact.

Investigating Agencies

Federal immigration crimes in New Jersey are investigated by Immigration and Customs Enforcement’s Enforcement and Removal Operations and Homeland Security Investigations, U.S. Citizenship and Immigration Services’ Fraud Detection unit, the State Department’s Diplomatic Security Service for passport and visa fraud, and Customs and Border Protection at Newark Liberty International Airport and the Port of New York and New Jersey. ICE offices at the Peter W. Rodino Federal Building in Newark process many of the arrests that lead to federal prosecutions.

Related pages: identity theft, false statements, conspiracy and counterfeiting.

What Happens After an Arrest on Immigration-Related Federal Charges

When a person is charged with a federal immigration crime, two systems move at once. The criminal case proceeds in the U.S. District Court with an initial appearance before a Magistrate Judge, a detention hearing, indictment, discovery and either a plea or trial. At the same time, ICE typically lodges a detainer, which asks the U.S. Marshals or a county jail to hold the person for immigration custody when the criminal case ends. Many defendants assume that an immigration detainer automatically means they cannot be released on bail in the criminal case. That is not correct. Under the Bail Reform Act, the court must decide release based on risk of flight and danger, and several courts have held that the existence of a detainer cannot by itself justify detention. As a practical matter, however, a defendant released in the criminal case may be taken into ICE custody, which must be considered in deciding whether to seek release.

Timing matters in other ways too. Because illegal reentry sentences are often relatively short, a defendant who has been detained for months may already have served much of the likely sentence before the case is resolved. Defense counsel should evaluate whether a prompt plea, a fast-track agreement, or a trial is in the client’s best interest given the time already served, the likely guideline range and the immigration consequences that will follow. For lawful permanent residents and others with potential relief, the choice of plea and the length of the sentence imposed can determine whether they can remain in the United States. These decisions require a defense team that understands both federal criminal practice and the immigration consequences of each possible outcome.

If a loved one has been detained by ICE and you believe federal criminal charges may follow, contact a federal defense attorney right away so that the first court appearance and any detention hearing are handled by counsel who knows the case.

Related Federal Defense Guides

• Federal detention hearings and pretrial release
• Federal identity theft and aggravated identity theft
• How the federal sentencing guidelines work

Frequently Asked Questions

Is being in the U.S. without status a federal crime?

Unlawful presence by itself is generally a civil immigration violation, not a crime. However, entering without inspection is a misdemeanor under 8 U.S.C. § 1325, and returning after a removal order is a felony under § 1326.

Can I challenge the old deportation order in an illegal reentry case?

Sometimes. Under 8 U.S.C. § 1326(d), a defendant can challenge the prior removal order if he exhausted available administrative remedies, was improperly deprived of judicial review, and the order was fundamentally unfair. The Supreme Court held in United States v. Palomar-Santiago (2021) that all three requirements must be met.

What is a fast-track plea?

Fast-track programs allow defendants charged with illegal reentry to receive a downward departure of up to four levels under U.S.S.G. § 5K3.1 in exchange for a prompt guilty plea and waiver of certain rights. Eligibility depends on the defendant’s criminal history and DOJ policy.

Can a lawful permanent resident be deported for a federal conviction?

Yes. Many federal offenses, including aggravated felonies and crimes involving moral turpitude, can make a green card holder removable. Under Padilla v. Kentucky, defense counsel must advise non-citizen clients about the immigration consequences of a guilty plea.

Is giving a ride to an undocumented person smuggling?

Not automatically. Transporting a non-citizen is a crime only if done knowingly or in reckless disregard of the person’s unlawful status and in furtherance of the unlawful presence. Ordinary family, employment or charitable assistance is often not enough, and the facts must be closely examined.

Talk to a New Jersey Federal Defense Lawyer Today

Federal cases are won or lost early, often before an indictment is ever filed. If an agent has contacted you, a search warrant has been executed, or you have received a target letter or grand jury subpoena, call Keith Oliver Criminal Law at (732) 858-6959 or contact us online for a confidential consultation. We defend clients throughout New Jersey in the U.S. District Court in Newark, Trenton and Camden, with offices in Monmouth, Mercer and Somerset Counties and Jersey City. Learn more about our federal criminal defense practice and attorney Keith G. Oliver.