Kara Sears
The consequences of breaking the law as an illegal immigrant in the US vary depending on the nature of the crime committed. If an individual enters the US illegally, they can be convicted of a crime and held responsible for a civil violation. This may result in fines, imprisonment, or both. The penalties are more severe for those who enter the US illegally multiple times or after being ordered to leave the country. Additionally, illegal immigrants who are caught within 100 miles of the US border can be deported without a hearing through an expedited removal process. Those who are caught deeper within the US are usually placed into removal proceedings in immigration court, where they may be charged with being removable or inadmissible. While the US Constitution guarantees certain rights to all people in the country, regardless of immigration status, the reality of how these rights play out in practice for illegal immigrants is complex. For example, while immigrants have the right to due process and legal counsel, the bar for evidence is low in immigration court, and deportation proceedings are often civil cases where the right to legal counsel does not apply.
| Characteristics | Values |
|---|---|
| Criminal Penalties for Improper Entry | For the first improper entry offense, the person can be fined, imprisoned for up to six months, or both. |
| Criminal Penalties for Improper Entry | For a subsequent offense, the person can be fined or imprisoned for up to two years, or both. |
| Criminal Penalties for Improper Entry | If the person has been convicted of certain types of crimes and thus removed from the U.S., penalties include being fined, imprisoned for up to 10 or 20 years, or both. |
| Civil Penalties for Unlawful Entry | Entry at a place other than one designated by immigration officers carries additional civil penalties of at least $50 and not more than $250 for each entry or attempted entry, or twice that amount if the person has been previously fined. |
| Caught in the U.S. after an Illegal Entry | If caught within 100 miles of the U.S. border, U.S. Customs and Border Protection can place the person in expedited removal proceedings and deport them quickly without a hearing. |
| Caught in the U.S. after an Illegal Entry | If caught deeper within the U.S., the person will likely be placed into removal proceedings in immigration court and charged with being "removable" or "inadmissible" under U.S. immigration law. |
| Right to Due Process | Immigrants have the right to due process, but in practice, the courts of law vary. In some cases, immigrants are not granted a hearing at all. |
| Right to Legal Counsel | Because most deportation proceedings are civil rather than criminal cases, the right to legal counsel often doesn't apply. |
| Right to be with Family | People have a right to be with their family, and the government can only split up families in extraordinary circumstances, such as in the case of child abuse, but it must go through a legal process. |
| Right to Vote or Hold Office | The Constitution does not prohibit anyone from voting and instead spells out who cannot be denied the right to vote. However, if a non-citizen votes in a federal election, they could be imprisoned for up to three years or deported. |
| Right to Education | Undocumented migrant children cannot be prohibited from enrolling in a public school due to the equal protection clause of the 14th Amendment. |
| Right against Unreasonable Search and Seizure | While the Fourth Amendment establishes the right against unreasonable searches and seizures, there is a "border search exception" that allows searches at the border. |
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What You'll Learn
Criminal prosecution for immigration violations
In the United States, tens of thousands of migrants and asylum seekers are prosecuted for immigration violations every year. These violations are typically referred to as "entry-related offenses", and include "illegal entry" and "illegal re-entry".
Under federal law, U.S. law enforcement agencies decide whether to refer someone who enters or re-enters the country without authorization for criminal prosecution. The Department of Homeland Security (DHS) refers around 99% of all immigration-related prosecutions, subjecting people not only to civil immigration detention and deportation proceedings but also to criminal sanctions.
The laws used to criminally prosecute people for entering and re-entering the U.S. without permission are Sections 1325 ("unauthorized entry") and 1326 ("unauthorized re-entry") of Chapter 8 of the U.S. Code. A first offense under Section 1325 is a misdemeanour punishable by a fine, up to six months in prison, or both. Section 1326 is punishable as a felony with a maximum sentence of two years in prison, with higher penalties for previous convictions.
In recent years, people charged under Sections 1325 and 1326 have challenged these charges, arguing that they were enacted for racist purposes. In 2022, a judge in the U.S. District Court for the District of Nevada ruled that Section 1326 is unconstitutional, but the government appealed this decision.
Prosecutions for immigration-related offenses have been criticized for wasting millions of taxpayer dollars, exacerbating racial and ethnic discrimination, and causing harm to families and communities. Critics also argue that these prosecutions do not effectively deter migration.
The Biden administration has continued to rely on immigration prosecutions as a punitive tool, and prosecutors charged thousands of people with unauthorized re-entry and unlawful entry in 2022.
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Deportation without a hearing
In the United States, deportation 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.
Administrative Removal Process
Administrative removal is an 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 the Department of Homeland Security (DHS) establishes that an immigrant meets the criteria, the immigrant is eligible for deportation. The immigrant does not go before an immigration judge, but the charge can be appealed, and the individual can consult with an attorney at personal expense. The turnaround of administrative removals is rapid, and options to appeal, while more expansive than with expedited removals, are still limited.
Expedited Removal Process
The expedited removal process 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. In past administrations, expedited removals also applied to individuals apprehended within 100 miles of the land border who could not prove they were legally admitted to the country or had 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. This expansion is permitted under the Immigration and Nationality Act (INA), but was not exercised by previous administrations. 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 outdated 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.
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 Department of Justice (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
The right to legal counsel is a complex issue for undocumented immigrants. While they do have constitutional rights, including the right to counsel if accused of a crime, immigration proceedings are often considered civil cases, and the right to legal counsel does not always apply.
The Sixth Amendment states that "In all criminal prosecutions, the accused shall...have the assistance of counsel for his defence." The Supreme Court ruled in 1963 that if a person cannot afford an attorney, the government must appoint one. However, as deportation proceedings are usually civil cases, this right often doesn't apply.
Undocumented immigrants do have the right to legal counsel if accused of a crime. They are guaranteed rights under the Constitution, regardless of their immigration status. The Constitution uses the term "person" or "people" rather than "citizen", and so many of the basic rights apply to citizens and non-citizens alike.
The lack of legal representation in immigration cases can have a profound impact on the outcome. Studies show that immigrants with attorneys are far more likely to win their cases and be allowed to remain in the country. For example, a 2016 study found that only 14% of detained immigrants had legal representation in court. Furthermore, unaccompanied children with legal representation are much more likely to be allowed to remain in the country than those without.
There have been calls for a federal defender service for immigrants, providing legal representation to those who cannot afford an attorney. This would ensure that immigrants have a fair opportunity to be heard and assert their rights.
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Right to family integrity
The right to family integrity, also referred to as the right to "family unity" or familial association, is a constitutional right that is derived from the Fifth Amendment's due process right. This right is not explicitly mentioned in the Constitution but has been established through court rulings in the early 20th century. The right to family integrity protects an individual's right to be with and commune with their family.
The government can only separate families in extraordinary circumstances, such as in cases of child abuse, but it must follow a legal process to do so. This right applies to everyone physically on U.S. soil, regardless of their immigration status or citizenship.
History of the Right to Family Unity in Immigration Law
The right to family unity in immigration law has evolved over time, influenced by the plenary power doctrine, which grants the federal government exclusive control over the nation's borders. While courts did not directly address the right to family unity in immigration cases until the 1950s, the concept has been invoked since the late 19th century during the Chinese Exclusion era. Despite this early recognition, the right to family unity has been deprioritized at times, particularly during periods of heightened national security concerns and McCarthyism in the 1950s.
Current Challenges and Judicial Recommendations
The right to family unity remains a complex and ambiguous issue, with courts struggling to define its scope and nature. The ambiguity surrounding this right has advantages and drawbacks. On one hand, it allows advocates to draw parallels between immigration policies and other historical injustices, uniting a wide range of policies under the umbrella of "family separation". On the other hand, this ambiguity can obscure the differences in how governmental actions separate families and may undermine the credibility of advocates.
Additionally, the ubiquitous nature of family makes it challenging to determine what constitutes a family and develop clear principles for when the right to family unity is implicated. Furthermore, the need to balance national security interests with constitutional due process poses difficulties in determining how and when the right is violated.
To address these challenges, judicial recommendations suggest:
- A clear distinction between procedural and substantive due process analyses, leaving open the possibility that family unity could be recognised as a liberty interest.
- Replacing the current framework in substantive due process cases with an "undue burden" standard, similar to that used in abortion and other family privacy cases.
Impact of Immigration Enforcement on Children
Immigration enforcement actions and the threat of such actions have significant repercussions for millions of children across the country, including U.S.-citizen children. As of 2018, approximately 4.4 million U.S.-citizen children under the age of 18 lived with at least one undocumented parent, and 6.1 million lived with an undocumented family member. These children face various risks and challenges when a parent or family member is subject to detention or deportation.
Mental Health and Development:
The detention and/or deportation of a parent can increase a child's risk of experiencing mental health issues such as depression, anxiety, and severe psychological distress. Children may exhibit symptoms of "toxic stress" due to the fear of family separation, which negatively impacts brain development and increases the risk of chronic mental and physical health conditions.
Educational Outcomes:
Immigration enforcement actions can also negatively impact educational outcomes. Large-scale raids by immigration authorities can lead to increased student absences and a decline in academic performance. Additionally, communities that partner with immigration enforcement agencies or are the focus of raids experience a displacement of Hispanic students as families choose to leave or avoid moving to those areas.
Economic Stability:
The detention or deportation of a parent or household member can have significant financial implications for the remaining family members. U.S.-citizen children may face economic disadvantages and increased poverty rates when a primary provider is removed. This can lead to difficulties in affording housing and a potential loss of the family home.
Child Welfare System:
Immigration enforcement can negatively impact parental rights and the well-being of children. The lack of coordination between agencies has led to prolonged family separation and, in some cases, termination of parental rights when a parent is detained or deported. While guidelines exist to protect parental rights, such as the 2013 Parental Interests Directive and the 2017 Detained Parents Directive, there are still significant issues in ensuring these rights are upheld.
Impact of Criminal Prosecutions for Immigration Violations
The criminal prosecution of migrants for immigration violations, such as illegal entry or re-entry, has been increasingly utilised by the federal government, particularly along the Southwest border. These prosecutions impose heavy costs on both the migrants and the government. Spouses are often separated, and parents are separated from their minor children. Lawyers have observed that adult family members are being prosecuted and sent to federal prisons, away from their children, who are then placed in shelters or foster homes.
The high conviction rates for these offences lead to mandatory incarceration, impeding current and future attempts by migrants to legally immigrate or seek asylum. The impact of these prosecutions on persons fleeing persecution and torture is particularly concerning, as it violates international law and subjects individuals to further trauma and insecurity.
The right to family integrity is a complex and evolving issue in U.S. immigration law. While it is recognised as a constitutional right, its application and protection in the context of immigration enforcement and criminal prosecutions for immigration violations remain challenging. The judicial recommendations proposed aim to address some of these challenges and uphold the rights of individuals and families impacted by immigration policies.
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Right to education
In the United States, undocumented children and young adults have the same right to attend public primary and secondary schools as do U.S. citizens and permanent residents. This was decided in the 1982 case of Plyler v. Doe, which ruled that public schools may not deny admission to a student or treat them differently based on their undocumented status.
The right to education for undocumented immigrants is not without limits, however. For example, undocumented immigrants do not have the right to in-state tuition rates at public colleges and universities, and they are not eligible for federal student aid.
Undocumented immigrants in the U.S. are also subject to various immigration laws, and violating these laws can result in criminal prosecution. For example, it is a crime for an undocumented person to enter the U.S. without proper authorization, and they can be fined or imprisoned for doing so. Additionally, undocumented immigrants can be detained and deported if they are found to be in violation of immigration laws.
It is important to note that undocumented immigrants have certain rights even when they are detained or facing deportation. For example, they have the right to remain silent and do not have to answer questions about their immigration status. They also have the right to consult with a lawyer and have an attorney present during any hearings before an immigration judge.
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Frequently asked questions
According to US law, "illegal entry" or improper entry is more than just slipping across the US border at an unguarded point. It can include entering or attempting to enter the US at any time or place other than one designated by US immigration officers, eluding examination by US immigration officers, or attempting to enter or obtain entry to the US by a willfully false or misleading representation.
A person who enters the US illegally for the first time can be fined, imprisoned for up to six months, or both. For subsequent offenses, the penalty can include a fine, imprisonment for up to two years, or both. The penalties get progressively 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.
If caught within 100 miles of the US border, individuals can be placed in expedited removal proceedings and deported quickly without a hearing. If caught deeper within the US, they will likely be placed into removal proceedings in immigration court and charged with being either "removable" or "inadmissible" under US immigration law.
Illegal immigrants in the US have certain guaranteed rights under the Constitution, including freedom of religion and speech, the right to due process, and equal protection under the law. They also have the right to remain silent and do not have to discuss their immigration status with police, immigration agents, or other officials. If asked by an immigration agent, they must show their immigration papers if they have them. Illegal immigrants also have the right to refuse a search of themselves or their belongings without their consent or probable cause.
