Statutory proscriptions against the illegal importation of aliens into the United States can be found as far back as 1875. The modern statute that broadly prohibits various forms of alien smuggling predates the Immigration and Nationality Act (INA), the current source for the bulk of the federal immigration laws, and was first enacted in 1917. Today, this provision and its many amendments can be found in INA § 274. Not only does this statute prohibit the smuggling of aliens across the U.S. border, but it also prohibits the transport and harboring of aliens within the United States. Thus, the statute covers a broad spectrum of activities that could conceivably subject to criminal liability any individual who provides assistance to an alien he knows or should know is unlawfully present within the United States. In recent years, several legislative proposals have been introduced that address alien smuggling. In the 110 th Congress, several bills addressing criminal penalties for alien smuggling saw legislative action or received significant congressional interest, though none were ultimately enacted into law. All contained nearly identical language and would have amended several statutory provisions in both the INA and Title 18 of the United States Code. It is possible that similar legislation will be considered in the 111 th Congress. This report describes the law that currently governs alien smuggling and then addresses how the recent legislative proposals would have changed the current law structurally and substantively. INA § 274 proscribes several types of activities that can be characterized as alien smuggling. These activities are characterized broadly, potentially criminalizing a wide range of activities. This is particularly apparent when analyzing the scienter element (i.e., the "intent" requirement) of these provisions. Most of these provisions state that a violation occurs when a defendant commits an offense "knowing or in reckless disregard of the fact" that an alien's presence in the United States is in violation of the law. "Reckless disregard" requires more than mere negligence, but it does not require that a defendant have actual knowledge that the alien he is assisting is in the country illegally. Rather, "reckless disregard" requires a person to consciously disregard a substantial and unjustifiable risk, and such disregard must constitute a gross deviation from the standard of care that a reasonable person would exercise in the situation. Thus, a violation would occur if a defendant chose to assist an alien in some manner when he "should have known" that the alien was in the United States illegally. Furthermore, although a defendant must either know or act in reckless disregard of the fact that an alien is unlawfully present within the United States in order to commit a violation, the person need not know that his act violates the alien smuggling statute in order to be susceptible to criminal liability. Thus, scienter is only required in terms of the defendant knowing the alien is unlawfully present and the defendant knowingly assisting the alien; ignorance about the unlawfulness of the assistance is most likely not a defense. INA § 274(a)(2) makes it an offense to bring or attempt to bring an alien into the United States in any manner whatsoever while knowing or in reckless disregard of the fact an alien has not received prior official authorization to come to, enter, or reside in the United States, regardless of any official action that may later be taken with respect to such alien. The term "bringing," a potentially broad term, is not defined in the INA. Thus, it has been subject to interpretation by the federal courts. For example, the Ninth Circuit has held that "bringing" may include activities beyond physical transport, such as "leading, escorting or causing an alien to come along to the United States." On the other hand, the Sixth Circuit has held that merely accompanying or assisting an alien seeking unauthorized entry does not constitute "bringing." Furthermore, the breadth of this statute is also evident in statutory language that suggests that bringing an alien into the United States constitutes a violation even when it was likely that the alien would be eligible for asylum or some other form of relief from removal. INA § 274(a)(1)(A)(i) makes it an offense, while knowing a person is an alien, to bring or attempt to bring such person into the United States at a place other than a designated port of entry regardless as to whether the person was authorized to come to the United States. Although it appears that this statute overlaps with INA § 274(a)(2), it differs in that it imposes criminal liability so long as the defendant knows that the person he is "bringing" into the United States is an alien. Knowledge of legal status is irrelevant. However, in order to incur liability, the defendant must assist the alien in evading inspection at a port of entry. INA § 274(a)(1)(A)(ii) makes it an offense, while knowing or in reckless disregard of the fact that an alien's presence in the United States is in violation of the law, to transport, move, or attempt to transport or to move such alien within the United States in furtherance of the violation against the law. Although it appears that this statute is broad, it does have a limiting principle. In order to incur criminal liability, the violation must be committed "in furtherance" of the alien's unlawful entry or presence. The Ninth and Eighth Circuits have stated that a person's transportation of an alien is not "in furtherance" of an alien's unlawful entry or presence if the transport was only "incidentally connected to" the alien's unauthorized entry or status. Certain factors the Ninth Circuit appears to weigh when determining whether there is a transport violation are the "time, place, distance, and overall impact" that the transportation has upon the alien's violation of immigration laws. On the other hand, the Sixth Circuit has rejected this "direct and substantial relationship test," and instead examines the intent of the person transporting the alien. The Circuit has suggested that the transport of "friends, relatives, and ... co-workers" who are unlawfully present may not constitute transportation "in furtherance" of an immigration violation if the transport was meant only to maintain the alien's well-being and existence; criminal liability seems to require that the assistance be given with a specific intent to promote an alien's illegal presence within the United States. Other federal circuits, in contrast, have taken a more general approach to assessing whether the transportation of an unauthorized alien is "in furtherance" of an alien's violation of the law by considering the individual facts and circumstances of each particular case. INA § 274(a)(1)(A)(iii) makes it an offense, while knowing or in reckless disregard of the fact that an alien is unlawfully present in the United States, to conceal, harbor, or shield from detection, or attempt to conceal, harbor, or shield from detection such alien. Courts have typically construed the harboring statute broadly. For example, the Fifth Circuit has interpreted the provision concerning the "shielding of aliens from detection" to prohibit the warning of unauthorized aliens of the presence of immigration officers. Furthermore, some courts have interpreted the harboring provision such that the mere sheltering of an alien, knowing or in reckless disregard of the alien's unlawful status, is a ground for criminal liability, regardless of whether it was done surreptitiously. Another court has interpreted this provision to require "conduct tending substantially to facilitate an alien's 'remaining in the United States' illegally." INA § 274(a)(1)(A)(iv) makes it an 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 would be present within the United States in violation of law. Courts have recognized that encouragement or inducement can mean providing conscious material support for an alien's attempt to unlawfully enter or reside in the United States. For example, providing or selling an illegal alien fraudulent immigration and work documents so that he may more easily remain in the United States has been found to be grounds for liability. Indeed, the Seventh Circuit has found that in order to demonstrate that a person "encouraged or induced" an alien, "all that the government needed to establish was that ... [the individual] knowingly helped or advised the alien[ ... ]." INA § 274(a)(1)(A)(v)(I) makes it an offense to engage in any conspiracy to commit any of the acts proscribed by INA § 274(a)(1). Thus, this provision only criminalizes conspiracies (1) to bring or attempt to bring an alien into the United States at a place other than a designated port of entry; (2) to transport, move, or attempt to transport or move an alien; (3) to conceal, harbor, shield from detection, or attempt to conceal, harbor, or shield from detection an alien; and (4) to encourage, induce, or attempt to encourage or induce an alien to come to, enter, or reside in the United States. Alternatively, a defendant could be charged with a federal conspiracy offense under 18 U.S.C. §371, which is not limited to the offenses enumerated in INA § 274(a)(1). But unlike INA § 274, section 371 includes a provision requiring that at least one conspirator commit an overt act to effect the underlying offense for there to be a violation. On the other hand, several federal circuits appear to require a showing of an overt act in order for there to be an INA § 274 conspiracy offense. INA § 274(a)(1)(A)(v)(II) makes it an offense to aid and abet the commission of any of the acts proscribed by INA § 274(a)(1). Alternatively, under 18 U.S.C. § 2, a person "who aids, abets, counsels, commands, induces, or procures" the commission of an offense against the United States may be punishable as a principal.