Immigration Laws: Who Is Breaking The Rules?

Immigration is a highly debated topic in the United States, with hundreds of thousands of aliens deliberately violating the nation's laws by unlawfully crossing U.S. borders each year. The consequences of illegal immigration are far-reaching, including the enormous drain on public funds, the overcrowding of classrooms and limited affordable housing, and the compromising of national security. While opinions differ on whether illegal immigrants are breaking the law, the U.S. Code Title 8, Sections 1325 and 1326, clearly state that it is a federal crime to enter or re-enter the U.S. without authorization, with punishments ranging from civil fines to imprisonment.

Unlawful entry and presence

Unlawful entry and unlawful presence in the US are violations of US immigration law that can result in deportation, long-term bans on re-entering the US, and, in some cases, criminal liability.

Unlawful Entry

Unlawful entry means entering the US in violation of its immigration laws. This can be done in two main ways: by sneaking across the border or by entering through immigration inspection under false pretenses. Examples include:

• Presenting a fake passport to US immigration officials at an airport or other port of entry
• Walking across the border in a remote area without inspection
• Entering the US on an ineligible visa by providing false information
• Entering the US based on a sham marriage

Unlawful Presence

Unlawful presence means remaining in the US in violation of US immigration laws. This can include:

• Overstaying a visa
• Remaining in the US after illegally entering the country

Exceptions

There are some exceptions to accruing unlawful presence:

• If you were under the age of 18
• You are waiting for an asylum petition to be adjudicated, provided you do not work during this time
• You are a beneficiary of the Family Unity program and your authorized period has not expired
• You are a battered spouse or child and can demonstrate a connection between the abuse and your presence
• You are a victim of a severe form of human trafficking and can connect this to your unlawful presence
• You have made a timely, non-frivolous application for an extension of stay or change of status, and you remain in the US for no more than 120 days after filing the application or until it is approved

Consequences

A history of unlawful presence in the US can result in three- or ten-year bans on re-entry, depending on the length of the unlawful stay. If an individual accrues more than one year of unlawful presence in total and then leaves the US, they will be permanently barred from re-entry. However, after ten years, they can request special permission to apply for a visa or green card.

Deportation and bans on re-entry

In terms of re-entry, bans are typically imposed by the federal government for a period of inadmissibility, during which the individual is barred from re-entering the country at any port of entry. The length of these bans varies, but they usually last for 10 years and can even be permanent. In the US, returning to the country illegally after deportation is a federal felony called "Illegal Re-Entry After Deportation", which carries a potential prison sentence.

The exact length of a ban depends on the circumstances of the deportation. For example, deportation due to an aggravated felony will likely result in a 20-year ban, while a lesser charge may only warrant a 5- or 10-year ban. Other factors that influence the length of a ban include:

• Whether the individual was summarily removed or deported at a border or port of entry.
• Whether the individual failed or refused to attend an immigration court proceeding.
• Whether the individual had previously been deported and attempted to re-enter the country within their original ban period.
• Whether the individual re-entered the country illegally after being removed.

It is possible to appeal for a ban to be lifted early, and to apply for a waiver of grounds of inadmissibility. However, this is a complex legal process and the success rate is low.

Marriage fraud

• A U.S. citizen being paid to marry a foreign national
• A U.S. citizen marrying a foreign national as a favour
• A foreign national defrauding a U.S. citizen who believes their marriage is legitimate
• Mail-order marriages, where either party knows the marriage is fraudulent
• Visa lottery fraudulent marriages

To prove their relationship is genuine, couples can:

• Dress professionally and arrive on time for the interview
• Answer honestly and not guess answers
• Bring evidence of their relationship, such as documents and forms
• Consult with an immigration lawyer

Entrepreneurship fraud

While the term "illegal immigrants" is often used as a blanket term, it is important to recognize that not all unauthorized border crossings are alike. For instance, asylum seekers who cross borders without authorization may be doing so out of necessity, as their lives could be in danger. However, it is true that some individuals deliberately violate the laws of their destination country by crossing borders unlawfully. This can lead to a range of issues, such as increased strain on public funds, overcrowding, and potential security risks.

Entrepreneurs are often faced with immense pressure to succeed and secure funding for their ventures, which can sometimes lead to dishonest or fraudulent behavior. This type of fraud can take many forms, including:

• Exaggerating or obfuscating the truth to attract investors and stakeholders: This is a common practice among founders who want to make their startup seem more attractive. However, it can lead to resources being locked up in ventures that are doomed to fail, making it difficult for investors and employees to make informed decisions.
• Misleading investors and partners: In some cases, entrepreneurs may blatantly lie to investors and partners about the capabilities of their technology, products, or services. This was the case with Theranos, a failed blood-testing startup that raised over $700 million despite never having a working product.
• Falsifying sales data: Some companies, such as Hampton Creek, have been accused of instructing contractors to buy back their own products to create the illusion of stronger consumer support and higher sales.
• Using company funds for personal gain: Entrepreneurs may misuse company funds to support their own lavish lifestyles or other personal ventures. This was the case with Michael Liberty, the founder of Mozido, who was indicted on charges of defrauding investors and using their money for personal expenses.
• Creating shell companies and elaborate Ponzi schemes: Fraudsters may set up complex networks of shell companies and fake investors to convince legitimate investors to fund their ventures.

To prevent entrepreneurship fraud, it is important for investors and stakeholders to conduct thorough due diligence and for entrepreneurs to prioritize transparency and honesty, even in highly competitive markets.

Criminal double-punishment

Immigration laws enacted in 1996 have created a system of double-punishment for immigrants with criminal records in the United States. Sections 1325 and 1326 of Title 8 of the U.S. Code make it a federal crime to enter or re-enter the country without authorization. This means that immigrants who have been convicted of a crime and served their sentence can still be detained and deported. This has resulted in the mass incarceration and separation of families, particularly in communities of colour.

The double-punishment of immigrants has been criticised as unjust and racially discriminatory. For example, Black immigrants make up 7% of non-citizens in the US but account for 20% of people facing deportation for criminal convictions. In addition, the prosecution of immigrants for entry-related offenses has been costly for both the migrants themselves and the federal government, with little demonstrated deterrent effect on future migration.

To address this issue, some states such as California have proposed legislation like the VISION Act, which aims to ensure that individuals who have served their sentences or had their charges dropped are not transferred to Immigration and Customs Enforcement (ICE) detention but can instead reunite with their families.

Frequently asked questions