From: Serge Boheme
Re: Summary of Criminal and Civil Liabilities for employment of unauthorized aliens
INA 274A:
Pursuant to INA 274A (and 8 CFR 274a.10) any person or entity which violates subsection (a)(1)(a), or subsection (a)(2) shall be liable for the following penalties:
Criminal Penalties:
Not more than $3000 for each unauthorized alien, imprisoned for not more than 6 months for the entire pattern or practice, or both, notwithstanding the provisions of any other Federal law relating to fine levels.
Civil Penalties :
1st offense (for offenses that occurred after 09/29/99) Not less than $275 and not more than $2200 for each unauthorized alien;
2nd offense: (for offenses that occurred after 09/29/99) Not less than $2200 and not more than $5500 for each unauthorized alien;
3rd or subsequent offense: (for offenses that occurred after 09/29/99) Not less than $3300 and not more than $11000 for each unauthorized alien.
Additionally, according to INA 274A and (8 CFR 274a.10), any person or entity which violates subsection (b) after 9/29/1999, shall be liable for a civil penalty in an amount of not less than $110 and not more than $1100 for each individual with respect to whom such violation occurred.
INA 274:
Pursuant to INA 274 subsection (a) (3) (and USC Title 8 Chapter 12, Subchapter II, Part VII, Section 1324, subsection (a)(3)), any person who, during any 12 month period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are unauthorized aliens shall be fined under title 18 or imprisoned for not more than 5 years or both.
Also, pursuant to INA 274 subsection (a)(1)(A):
(iv), any person who encourages or induces an alien to come to, enter, or reside in the U.S., knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or
(v)
(I) engages in any conspiracy to commit any of the preceding acts, or
(II) aids and abets the commission of any of the preceding acts,
shall be punished as provided in subparagraph (B).
(B) A person who violates subparagraph (A) shall, for each alien in respect to whom such a violation occurs -
(i) in the case of a violation of subparagraph (A)(i) or (v)(I) or in the case of a violation of subparagraph (A)(ii), (iii), or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain, be fined under title 18, imprisoned not more than 10 years, or both;
(ii) in the case of a violation of subparagraph (A)(ii), (iii), (iv), or (v)(II), be fined under title 18, imprisoned not more than 5 years, or both;
Fines under title 18 are generally determined according to the type of offense involved. Since the maximum imprisonment sentences in all of these sections carry well over one year, we should assume for purposes of determining the fines that these violations would be considered to be felonies . Fines for individuals can reach as high as $250,000 for each felony conviction. Fines for organizations can reach as high as $500,000 for each felony conviction. The actual amount imposed would be a function of many factors .
RICO Violations:
Enforcement by U.S. Government:
Under the RICO Act “racketeering activity” includes any act which is indictable under the INA Section 274 . Since a pattern of racketeering activity” requires at least two acts of racketeering activity, we must analyze all possible conduct by the entity and /or person that may be categorized as predicate acts. Whoever is convicted under the RICO act shall be fined under title 18 or imprisoned not more than 20 years (or for life if the violation is based on racketeering activity for which the maximum penalty includes life imprisonment) or both, and shall forfeit all interests, proceeds, securities, claims, property or contractual rights of any kind obtained directly or indirectly in connection with the racketeering activities .
Private Actions:
Aside from any recoveries made by the U.S. government, any person injured in his business or property (such as lost wages) may sue therefor in any appropriate U.S. district court, and shall recover threefold the damages he sustains and the cost of the suit, including reasonable attorney’s fee .
This writing should not be construed to be legal advice. The list of civil and criminal liabilities in this writing is by no means exhaustive, and you should not analogize your situation to a status described herein just because it is similar.
FOOTNOTES
1. INA 274A(a)(1)(A) It is unlawful for a person or other entity to hire or to recruit or refer for a fee, for employment in the U.S. an alien knowing the alien is an unauthorized alien.
2. INA 274A(a)(2) It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1) to continue to employ the alien in the U.S. knowing the alien is (or has become) an unauthorized alien with respect to such employment.
3. 8 CFR 274a.10(b) … a finding of more than one violation in the course of a single proceeding or determination will be counted as a single offense. However a single offense will include penalties for each unauthorized alien who is determined to have been knowingly hired or recruited or referred for a fee.
4. According to INA 274A(b) an employer must attest, under penalty of perjury and on a form designated or established by the AG by regulation, that it has verified that the individual is not an unauthorized alien by examining the proper documents (i.e. U.S. passport, LPR card, social security card in conjunction with driver’s license, etc.).
5. …”encouraging” is not limited to bringing in, transporting or concealing illegal aliens. Rather, “encouraging relates to actions taken to convince the illegal alien to come to this country or to stay in this country.” U.S. v. Oloyede, 982 F.2d 133 (4th Cir. 1992).
6. Fines under Title 18 USC.
Sec. 3571. - Sentence of fine
(a) In General. -
A defendant who has been found guilty of an offense may be sentenced to pay a fine.
(b) Fines for Individuals. -
Except as provided in subsection (e) of this section, an individual who has been found guilty of an offense may be fined not more than the greatest of -
(1) the amount specified in the law setting forth the offense;
(2) the applicable amount under subsection (d) of this section;
(3) for a felony, not more than $250,000;
(4) for a misdemeanor resulting in death, not more than $250,000;
(5) for a Class A misdemeanor that does not result in death, not more than $100,000;
(6) for a Class B or C misdemeanor that does not result in death, not more than $5,000; or
(7) for an infraction, not more than $5,000.
(c) Fines for Organizations. -
Except as provided in subsection (e) of this section, an organization that has been found guilty of an offense may be fined not more than the greatest of -
(1) the amount specified in the law setting forth the offense;
(2) the applicable amount under subsection (d) of this section;
(3) for a felony, not more than $500,000;
(4) for a misdemeanor resulting in death, not more than $500,000;
(5) for a Class A misdemeanor that does not result in death, not more than $200,000;
(6) for a Class B or C misdemeanor that does not result in death, not more than $10,000; and
(7) for an infraction, not more than $10,000.
(d) Alternative Fine Based on Gain or Loss. -
If any person derives pecuniary gain from the offense, or if the offense results in pecuniary loss to a person other than the defendant, the defendant may be fined not more than the greater of twice the gross gain or twice the gross loss, unless imposition of a fine under this subsection would unduly complicate or prolong the sentencing process.
(e) Special Rule for Lower Fine Specified in Substantive Provision. -
If a law setting forth an offense specifies no fine or a fine that is lower than the fine otherwise applicable under this section and such law, by specific reference, exempts the offense from the applicability of the fine otherwise applicable under this section, the defendant may not be fined more than the amount specified in the law setting forth the offense.
7. TITLE 18 > PART II > CHAPTER 227 > SUBCHAPTER D > Sec. 3581.
Sec. 3581. - Sentence of imprisonment
(a) In General. -
A defendant who has been found guilty of an offense may be sentenced to a term of imprisonment.
(b) Authorized Terms. -
The authorized terms of imprisonment are -
(1) for a Class A felony, the duration of the defendant’s life or any period of time;
(2) for a Class B felony, not more than twenty-five years;
(3) for a Class C felony, not more than twelve years;
(4) for a Class D felony, not more than six years;
(5) for a Class E felony, not more than three years;
(6) for a Class A misdemeanor, not more than one year;
(7) for a Class B misdemeanor, not more than six months;
(8) for a Class C misdemeanor, not more than thirty days; and
(9) for an infraction, not more than five days
8. TITLE 18 > PART II > CHAPTER 227 > SUBCHAPTER C > Sec. 3572.
Sec. 3572. - Imposition of a sentence of fine and related matters
(a) Factors To Be Considered. -
In determining whether to impose a fine, and the amount, time for payment, and method of payment of a fine, the court shall consider, in addition to the factors set forth in section 3553(a) -
(1) the defendant’s income, earning capacity, and financial resources;
(2) the burden that the fine will impose upon the defendant, any person who is financially dependent on the defendant, or any other person (including a government) that would be responsible for the welfare of any person financially dependent on the defendant, relative to the burden that alternative punishments would impose;
(3) any pecuniary loss inflicted upon others as a result of the offense;
(4) whether restitution is ordered or made and the amount of such restitution;
(5) the need to deprive the defendant of illegally obtained gains from the offense;
(6) the expected costs to the government of any imprisonment, supervised release, or probation component of the sentence;
(7) whether the defendant can pass on to consumers or other persons the expense of the fine; and
(8) if the defendant is an organization, the size of the organization and any measure taken by the organization to discipline any officer, director, employee, or agent of the organization responsible for the offense and to prevent a recurrence of such an offense.
(b) Fine Not to Impair Ability to Make Restitution. -
If, as a result of a conviction, the defendant has the obligation to make restitution to a victim of the offense, other than the United States, the court shall impose a fine or other monetary penalty only to the extent that such fine or penalty will not impair the ability of the defendant to make restitution.
(c) Effect of Finality of Judgment. -
Notwithstanding the fact that a sentence to pay a fine can subsequently be -
(1) modified or remitted under section 3573;
(2) corrected under rule 35 of the Federal Rules of Criminal Procedure and section 3742; or
(3) appealed and modified under section 3742;
a judgment that includes such a sentence is a final judgment for all other purposes.
(d) Time, Method of Payment, and Related Items. -
(1) A person sentenced to pay a fine or other monetary penalty, including restitution, shall make such payment immediately, unless, in the interest of justice, the court provides for payment on a date certain or in installments. If the court provides for payment in installments, the installments shall be in equal monthly payments over the period provided by the court, unless the court establishes another schedule.
(2) If the judgment, or, in the case of a restitution order, the order, permits other than immediate payment, the length of time over which scheduled payments will be made shall be set by the court, but shall be the shortest time in which full payment can reasonably be made.
(3) A judgment for a fine which permits payments in installments shall include a requirement that the defendant will notify the court of any material change in the defendant’s economic circumstances that might affect the defendant’s ability to pay the fine. Upon receipt of such notice the court may, on its own motion or the motion of any party, adjust the payment schedule, or require immediate payment in full, as the interests of justice require.
(e) Alternative Sentence Precluded. -
At the time a defendant is sentenced to pay a fine, the court may not impose an alternative sentence to be carried out if the fine is not paid.
(f) Responsibility for Payment of Monetary Obligation Relating to Organization. -
If a sentence includes a fine, special assessment, restitution or other monetary obligation (including interest) with respect to an organization, each individual authorized to make disbursements for the organization has a duty to pay the obligation from assets of the organization. If such an obligation is imposed on a director, officer, shareholder, employee, or agent of an organization, payments may not be made, directly or indirectly, from assets of the organization, unless the court finds that such payment is expressly permissible under applicable State law.
(g) Security for Stayed Fine. -
If a sentence imposing a fine is stayed, the court shall, absent exceptional circumstances (as determined by the court) - (1) require the defendant to deposit, in the registry of the district court, any amount of the fine that is due;
(2) require the defendant to provide a bond or other security to ensure payment of the fine; or
(3) restrain the defendant from transferring or dissipating assets.
(h) Delinquency. - A fine or payment of restitution is delinquent if a payment is more than 30 days late.
(i) Default. - A fine or payment of restitution is in default if a payment is delinquent for more than 90 days. Notwithstanding any installment schedule, when a fine or payment of restitution is in default, the entire amount of the fine or restitution is due within 30 days after notification of the default, subject to the provisions of section 3613A.
9. TITLE 18, Part I, Chapter 96, Section 1961(1)(F).
10. TITLE 18, Part I, Chapter 96, Section 1963.
11. TITLE 18, Part I, Chapter 96, Section 1964.