Alien Status: Criminal Law Violation Or Civil Offense?

The term illegal alien is a politically charged one, and its use is debated. While some sources use the term, others prefer undocumented immigrant, as they believe the former term obscures the fact that being an undocumented person in the US is not a crime in itself. However, there are several federal laws pertaining to immigration and nationality, and certain ways of entering the US may be considered federal crimes. For example, entering the US without proper inspection at a port of entry is a crime, as is re-entering the country after a prior deportation order. These are known as entry-related offenses and have resulted in tens of thousands of prosecutions every year.

Criminal charges for illegal re-entry

Being an undocumented immigrant in the US is not a crime in itself. However, certain ways of entering the country may be considered federal crimes, and being undocumented and having previously been deported and then re-entering the country without permission is punishable by imprisonment of up to 2 years. This is known as "illegal re-entry".

The criminal charge for illegal re-entry is outlined in Section 1326 ("illegal re-entry") of Chapter 8 of the U.S. Code, which makes it a crime to:

• Unlawfully re-enter
• Attempt to unlawfully re-enter
• Be found in the United States

After having been deported, ordered to be removed, or denied admission. This is a felony offence punishable by a maximum sentence of two years in prison. Higher penalties may be applied if the person has previous convictions for certain crimes. For example, a single felony conviction can carry a sentence of up to 10 years, and an aggravated felony conviction can carry a sentence of up to 20 years.

Prosecution of Illegal Re-Entry

Prosecutions for illegal re-entry have been used to advance racist, anti-immigrant policy goals. For example, the Trump administration used these laws to block asylum seekers and separate families. Data shows that prosecutions for unauthorized re-entry disproportionately impact Mexican and Latinx individuals, with 94% of those prosecuted in fiscal years 2020-21 coming from Mexico, Honduras, Guatemala, and El Salvador.

The prosecution of individuals for illegal re-entry has heavy costs for both the individuals and the federal government. For example, spouses and parents are often separated from their children, who are placed with federal authorities in shelters or foster homes.

In addition, the prosecution of these cases uses law enforcement resources that could be devoted to prosecuting more serious crimes, such as drug smuggling and human trafficking.

Civil violation of being physically present without authorization

Being physically present in a country without authorization is a civil violation, not a criminal offense. This means that the Department of Homeland Security (DHS) can place a person in removal or deportation proceedings and may require payment of a fine, but the federal government cannot charge the person with a criminal offense unless they have previously been ordered deported and re-entered in violation of that deportation order.

The Immigration and Nationality Act defines unlawful presence as any period of time when a person is present in the United States without being admitted or paroled, or when a person remains in the country after their "period of stay authorized by the Secretary" expires. A person starts accruing unlawful presence on the day they enter the country without admission or parole. If a person has been admitted or paroled, they are typically issued a Form I-94, which shows their authorized period of stay. If a person stays beyond the date noted on their Form I-94, they begin accruing unlawful presence.

There are certain exceptions to the accrual of unlawful presence, including:

• Asylees and asylum applicants: Time while a bona fide asylum application is pending is generally not counted as unlawful presence.
• Minors: Non-citizens under the age of 18 do not accrue unlawful presence.
• Family Unity beneficiaries: Individuals with protection under the Family Unity Program do not accrue unlawful presence.
• Battered spouses and children: Self-petitioners under the Violence Against Women Act (VAWA) and their dependents do not accrue unlawful presence if they can establish a substantial connection between the battery or extreme cruelty and the violation of the terms of their non-immigrant visa.
• Victims of severe forms of human trafficking: Trafficking victims who can demonstrate that human trafficking was a central reason for their unlawful presence do not accrue unlawful presence.

It is important to note that being an undocumented immigrant is not a crime in itself. While some ways of entering a country may be considered federal crimes, simply being present without legal documentation is not a federal crime. A large percentage of undocumented individuals enter the country legally and may overstay their visas or work without authorization. Undocumented immigrants still have constitutional rights, including the right to counsel if accused of a crime.

Deportation and removal proceedings

Being an undocumented immigrant is not a crime in itself. However, undocumented immigrants who have been convicted of a crime may be subject to removal from the United States. This process is known as deportation.

Deportation is the process of removing a noncitizen from the U.S. for violating immigration law. The U.S. may detain and deport noncitizens who participate in criminal acts or are a threat to public safety. The majority of removals are carried out by air at the government's expense, although some may use a combination of air and ground transportation.

The deportation process typically begins when the Department of Homeland Security (DHS) files a Notice to Appear (Form I-862) with the immigration court after serving it on the respondent. This notice includes information such as the nature of the proceedings, the legal authority under which they are conducted, the alleged violations of the law, the charges against the respondent, and the opportunity to be represented by counsel.

After a noncitizen is detained, they may appear before a judge in immigration court during the deportation (removal) process. In some cases, a noncitizen may be subject to expedited removal without attending a hearing. This can occur when a noncitizen enters the U.S. without proper travel documents, uses forged documents, or fails to comply with visa requirements.

If a judge rules that deportation should proceed, the U.S. Immigration and Customs Enforcement (ICE) carries out the removal order. Before removal, individuals may be able to leave the U.S. at their own expense through voluntary departure. It is also possible to appeal certain deportation rulings with the help of legal services or nonprofit legal organizations.

Foreign nationals who have committed nonviolent crimes may be eligible for the Rapid REPAT program, which allows them to be released from prison to voluntarily return to their country of origin.

Federal criminal charges for illegal entry

Being an undocumented immigrant is not a crime in itself. However, there are federal criminal charges for illegal entry and re-entry into the United States. These charges are outlined in Title 8 of the U.S. Code, which identifies federal criminal offenses related to immigration and nationality.

Under 8 U.S.C. § 1325, it is a crime for an alien to enter or attempt to enter the United States at any time or place other than as designated by immigration officers, or to elude examination or inspection by immigration officers. This includes providing false or misleading information or concealing material facts. For a first offense, the penalty is a fine, up to six months in prison, or both. For subsequent offenses, the penalty increases to a fine, up to two years in prison, or both.

Federal Criminal Charges for Illegal Re-Entry

8 U.S.C. § 1326 makes it a crime for an alien to unlawfully re-enter or attempt to re-enter the United States after having been deported, ordered removed, or denied admission. This crime is punishable as a felony, with a maximum sentence of two years in prison. Higher penalties apply if the person has prior convictions for certain crimes. For example, if the person has a single felony conviction (excluding aggravated felony convictions), the maximum sentence increases to 10 years. If the person has an aggravated felony conviction, the maximum sentence is 20 years.

Other Federal Criminal Offenses Related to Immigration

In addition to illegal entry and re-entry, there are other federal criminal offenses related to immigration, such as alien smuggling, domestic transportation of unauthorized aliens, and encouraging or inducing unauthorized aliens to enter the United States. These offenses are outlined in 8 U.S.C. § 1324(a) and carry penalties of up to 10 years in prison, or even the death penalty if the violation results in the death of any person.

Immigration waivers and asylum

While being an undocumented person in the US is not a crime, individuals who enter the country without legal documentation may have committed a federal crime in the act of crossing the border. However, there is a significant percentage (45%) of undocumented people who do not enter the US illegally. They may have entered on a visa and overstayed, for example.

In this context, immigration waivers and asylum are important considerations. The Visa Waiver Program (VWP) allows people from certain countries to apply for admission as nonimmigrant visitors for a period not exceeding 90 days. When an individual seeks admission under the VWP, they forfeit the right to seek any form of relief for removal except for asylum.

Asylum is a form of protection for individuals who meet the definition of a refugee and are already in the United States or seeking admission at a port of entry. To be granted asylum, individuals must go through a rigorous application process and meet specific requirements. If asylum is granted, individuals will have the opportunity to live and work legally in the US and will eventually be able to apply for lawful permanent residence and citizenship.

However, asylum is not a permanent status, and it can be revoked under certain conditions, such as if the individual commits a serious crime or no longer faces persecution in their home country.

For asylees and refugees seeking to adjust their status, waivers of inadmissibility may be applicable. The Immigration and Nationality Act (INA) contains a waiver provision for asylee and refugee applicants, allowing for the waiver of certain grounds of inadmissibility, such as health-related issues, security concerns, or specific criminal convictions. The decision to grant or deny a waiver is discretionary and based on humanitarian purposes, family unity, or the public interest.

It is important to note that not all grounds of inadmissibility can be waived, and violent offenses or controlled substance trafficking, for example, may result in a higher bar for obtaining a waiver. Consulting with an experienced immigration attorney is crucial for asylees and refugees navigating the complex process of adjusting their status and seeking waivers of inadmissibility.

Frequently asked questions