Cecily Zamora
The consequences of an illegal immigrant breaking the law vary depending on the nature of the crime, the location, and the individual's history. If an illegal immigrant is caught within 100 miles of the U.S. border, they can be deported quickly without a hearing. However, if they are caught deeper within the U.S., they are likely to be placed into removal proceedings in immigration court and charged with being removable or inadmissible. The U.S. government may also choose to charge the individual with the crime of illegal entry in a federal criminal court, which can result in imprisonment. The penalties for illegal entry become more severe if the person has previously been deported or has committed certain types of crimes. It's important to note that illegal immigrants have certain rights, such as the right to remain silent, the right to an attorney, and the right to claim fear of returning to their home country.
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What You'll Learn
Criminal vs civil penalties for illegal entry
The penalties for illegal entry into the US can be both criminal and civil in nature. The penalties and consequences become more severe if a person enters the US illegally more than once, or if they enter illegally after a final order of removal or after being convicted of an aggravated felony.
Criminal Penalties for Improper Entry
For a first-time improper entry offense, a person can be fined, imprisoned for up to six months, or both. For a subsequent offense, the penalty can be a fine, imprisonment of up to two years, or both.
Civil Penalties for Unlawful Entry
Entry at a place other than one designated by immigration officers carries additional civil penalties. The amount is at least $50 and not more than $250 for each such entry or attempted entry, or twice that amount if the person has been previously fined for the same violation.
Additional Notes
- The term "illegal entry" is a broad term that includes entering or attempting to enter the US at any time or place other than one designated by US immigration officers, eluding examination or inspection by US immigration officers, and attempting to enter or obtain entry to the US by a willfully false or misleading representation or willful concealment of a material fact.
- The US government can choose to charge individuals with the crime of illegal entry in federal criminal court.
- The US government can also place individuals in removal (deportation) proceedings and require payment of a fine.
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Deportation without a hearing
In the United States, deportation of undocumented immigrants typically involves an immigration judge, a hearing, and an order of removal or a stay of removal. However, there are several ways in immigration law that the government can use to deport an undocumented immigrant that do not involve the judicial process. These are known as administrative, expedited, and reinstatement of removal processes.
Expedited Removal Process
Following President Trump's executive order "Border Security and Immigration Enforcement Improvements," DHS issued a guidance memo for enforcement specifically citing the immigration court backlog as a reason to increase the use of expedited removal processes instead of going through the courts.
Expedited removal can apply to any arriving individual at a port of entry without proper documentation or arrivals by sea but not necessarily at a point of entry. Expedited removal also applies to individuals apprehended within 100 miles of the land border who cannot prove they were legally admitted to the country or have been present in the country continuously for more than 14 days. With the issuance of DHS's new guidance on enforcement, the definition of individuals eligible for expedited removal is to be expanded to those who cannot prove they have been in the United States continuously for two years, without regard to where in the United States they are apprehended.
The expedited process is not reviewable by an immigration judge and has only extremely limited options for relief. For example, before being removed, the government must determine if the immigrant has a "credible fear" of persecution, which could be the basis for an asylum claim. Even though it is not issued by an immigration judge, an expedited removal is a formal deportation and results in a ban from returning to the U.S. for five years. If an immigrant is found to have misrepresented themselves when apprehended at the border by providing false or out-of-date documentation or making false claims to U.S. immigration agents, the ban is for life. Expedited removal proceedings can also be used for individuals who entered the country legally but overstayed their visa or who have been convicted of crimes like drug and firearm charges and aggravated felonies.
Administrative Removal Process
Administrative removal is expedited removal for foreign nationals who have been convicted of aggravated felonies and who were not previously permanent residents in the United States. Permanent residents have the right to appear before an immigration judge. In administrative removal, it does not matter how long one has been in the country, if DHS establishes that an immigrant meets the criteria, the immigrant is eligible for deportation.
As in expedited removal, the immigrant does not go before an immigration judge. However, in contrast to expedited removal processes, the charge can be appealed, and the individual can consult with an attorney at personal expense. The immigrant can review the evidence DHS used to make its decision and can submit evidence rebutting either of DHS's two bases for their decision, whether the immigrant is a permanent resident or has been convicted of an aggravated felony.
The definition of aggravated felony under immigration law is separate from definitions used in criminal law and is broader, including some nonviolent misdemeanors. The category includes types of crimes that would typically be considered "aggravated," such as murder, sexual assault, and firearms offenses, but it also includes crimes such as gambling offenses, failure to appear in court, burglary, and document fraud.
Reinstatement of Removal
The third and final method of expedited removal is called reinstatement of removal and applies to those who have been previously deported but illegally reentered the United States. As with the other two methods, the immigrant does not come before an immigration judge, but can appeal the reinstatement on the basis of a claim for asylum. According to the DOJ, "depending on the jurisdiction your immigration case is in, you may be able to challenge your prior removal order in the federal Circuit Court of Appeal." In addition, exceptions can apply to those protected under the Nicaraguan Adjustment and Central American Relief Act or the Haitian Refugee Immigration Fairness Act.
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Right to legal counsel
Illegal immigrants in the US have certain rights under the Constitution, regardless of their immigration status. If an illegal immigrant is arrested by the police, they have the right to a government-appointed lawyer and should ask for one immediately. They also have the right to make a private phone call within a reasonable time after their arrest, and the police may not listen in if the call is made to a lawyer.
If an illegal immigrant is detained by ICE or Border Patrol, they have the right to hire a lawyer, but the government is not required to provide one for them. They can ask for a list of free or low-cost alternatives. They have the right to call a lawyer or their family, and they have the right to be visited by a lawyer in detention. They also have the right to have their attorney with them at any hearing before an immigration judge.
Immigrants in immigration court do not have a right to government-appointed counsel. However, individuals criminally prosecuted for entry-related offenses are entitled to a lawyer, which is provided by the US government if the individual cannot afford private counsel.
The lack of legal representation can have a profound impact on immigrants' outcomes in removal proceedings. According to a 2016 American Immigration Council (AIC) study, immigrants with attorneys are five times more likely to pursue relief from deportation and win their cases than those without attorneys. Detained immigrants with legal counsel are 11 times more likely to pursue relief and twice as likely to obtain relief than those without counsel.
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$48
Right to remain silent
The right to remain silent is a legal principle that guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. This right is recognised in many of the world's legal systems and is considered a fundamental human right.
In the United States, the right to remain silent is a part of the Miranda warning, which informs suspects of their constitutional rights during an arrest. The Fifth Amendment to the U.S. Constitution states that "no person...shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law." This means that individuals have the right to refuse to answer questions or provide information that may incriminate them. The right to remain silent applies to everyone, regardless of their immigration status.
Illegal immigrants, like all individuals, have the right to remain silent during police questioning or court proceedings. They do not have to answer questions about their immigration status or provide documents if they do not have them. However, if they choose to speak to the police, it is essential to tell the truth. Providing false information or documents can result in additional charges, such as obstructing a police officer or public mischief.
It is important to note that the right to remain silent does not mean that an individual cannot be detained or arrested. Law enforcement officers can still carry out their duties, but individuals have the right to refuse to answer their questions. If an illegal immigrant is arrested, they will face the legal consequences, which may include fines, imprisonment, or deportation, depending on the specifics of their case and their previous immigration history.
The right to remain silent is a crucial protection for individuals, ensuring that they cannot be forced to incriminate themselves. It is essential to understand and exercise this right, especially for those in vulnerable situations, like illegal immigrants, to ensure their rights are protected during legal proceedings.
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Right to be with family
The right to be with family is a basic principle that is established through court rulings in the early 20th century. This right is not explicitly spelled out in the US Constitution but it is derived from the right to “family integrity". While the government can separate families in extraordinary circumstances, such as in cases of child abuse, it cannot do so without due legal process.
In the context of immigration, the right to be with family is relevant when considering the impact of immigration violations on family members. For example, if an illegal immigrant is caught living with a legal family, it is highly unlikely that the entire family will face legal consequences. The term "harbouring" in this context is legally ambiguous, and prosecution is extremely rare.
However, it is important to note that if an undocumented individual is found to be living in the US, they may face deportation or be unable to apply for immigration benefits, even if they have family members who are US citizens or permanent residents. In such cases, the family members themselves are unlikely to face charges, as the US rarely prosecutes the family of undocumented individuals.
Additionally, US citizens or permanent residents can sponsor their undocumented spouses for a green card, although this process can be complex and challenging. The specific steps to be taken depend on the circumstances, and it is recommended to consult an immigration attorney for guidance.
It is worth noting that the right to be with family may also intersect with other rights, such as the right to education for undocumented children and the right to due process in immigration cases.
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Frequently asked questions
If an illegal immigrant is caught, they face arrest by U.S. Immigration and Customs Enforcement (ICE). What happens next depends on where they are caught and whether they have been ordered to be deported in the past. If caught within 100 miles of the U.S. border, they can be deported quickly without a hearing. If caught deeper within the U.S., they will likely be placed into removal proceedings in immigration court.
For a first improper entry offense, a person can be fined, imprisoned for up to six months, or both. For a subsequent offense, the person can be fined or imprisoned for up to two years, or both. The penalties are more severe if the person has been convicted of certain types of crimes and has been deported from the U.S.
Yes, illegal immigrants have certain rights under the U.S. Constitution. This includes the right to due process, freedom of religion and speech, and the right to equal protection under the law. They also have the right to remain silent and not answer questions about their immigration status. In addition, they have the right to speak to a lawyer and should do so before answering any questions.
