Understanding The Legal Status Of Undocumented Immigrants

Illegal immigration is a complex issue that involves the violation of immigration laws and carries various legal consequences. In the United States, unlawful entry and presence are defined by specific criteria and are subject to civil and criminal penalties. Unlawful entry occurs when an individual enters the country outside of the designated processes and locations established by immigration laws. This can include crossing at unguarded border crossings, evading examination by immigration officers, or providing false or misleading information. Unlawful presence refers to overstaying a visa or remaining in the country after improper entry. The penalties for these violations can range from civil fines to imprisonment, with the severity increasing for repeat offenses. Additionally, marriage fraud and entrepreneurship fraud to evade immigration laws are also punishable by imprisonment and/or fines. The legal system surrounding immigration is intricate and demanding, and it is advisable for individuals to seek the guidance of experienced immigration attorneys to navigate their specific situations.

Unlawful entry

Criminal Offenses

The following acts are considered criminal offenses under 8 U.S.C. § 1325:

• Entering or attempting to enter the United States at any time or place other than as designated by immigration officers.
• Evading examination or inspection by immigration officers.
• Attempting to enter or obtaining entry through willfully false or misleading representations, or the willful concealment of material facts.

Penalties

For the first commission of any such offense, penalties include a fine, imprisonment of up to 6 months, or both. For subsequent offenses, penalties include a fine, imprisonment of up to 2 years, or both. Additionally, civil penalties ranging from $50 to $250 for each entry or attempted entry may be imposed, and these civil penalties are in addition to any criminal or other civil penalties.

History

8 U.S.C. § 1325 was passed in the late 1920s during the height of the eugenics movement, and it has been criticized for advancing racist and white supremacist ideology. In recent years, there have been legal challenges to this law based on its overtly racist purposes, and a judge in the District of Nevada ruled it unconstitutional in 2022. However, the law was appealed by the government.

Unlawful presence

According to the United States Citizenship and Immigration Services (USCIS), unlawful presence is accrued if:

> "You are present in the United States without being admitted or paroled; or you have stayed in the United States after the expiration of the period of stay authorized by the secretary of homeland security."

In general, if an individual has been admitted or paroled into the US, they will have received a Form I-94, Arrival/Departure Record, which shows their authorized period of stay. Typically, unlawful presence begins to accrue if an individual stays in the US beyond the date noted on their Form I-94. However, there are exceptions to this rule. For example, non-immigrants admitted for the duration of their status (D/S) may remain in the US for the duration of their program, course of study, or temporary work assignment, plus any additional grace periods.

The Immigration and Nationality Act (INA) outlines the following grounds for inadmissibility based on unlawful presence:

• Accruing more than 180 days but less than 1 year of unlawful presence during a single stay, and seeking admission again within 3 years of leaving the US before removal proceedings begin.
• Accruing 1 year or more of unlawful presence during a single stay, and seeking admission again within 10 years of leaving or being removed from the US.
• Reentering or attempting to reenter the US without admission or parole after accruing more than 1 year of unlawful presence in total during one or more stays.

It is important to note that there are specific exceptions to the accrual of unlawful presence, such as for asylees, minors under age 18, and victims of severe forms of human trafficking.

Marriage fraud

The typical scenario in marriage fraud cases involves a U.S. citizen and a foreign national fulfilling all the legal requirements for marriage, such as medical tests, licensing, and a ceremony. However, the marriage is not based on a genuine relationship, and the U.S. citizen may be compensated for their participation in the scheme. The couple often plans to divorce after the foreign national obtains permanent resident status, believing that no one will suspect the fraud. In some cases, facilitators are involved, who, for a fee, find U.S. citizens willing to participate in marriage fraud schemes and even help with the necessary paperwork and interview preparation.

To combat marriage fraud, U.S. government agencies like Homeland Security Investigations (HSI) have launched educational campaigns to raise awareness about the dangers and consequences of marriage fraud. They work with partner organizations and utilize various media to inform U.S. citizens about the risks and deter individuals from participating in fraudulent marriages.

Entrepreneurship fraud

Illegal immigrants in the United States are subject to a range of federal laws and sanctions, including those related to improper entry, marriage fraud, and entrepreneurship fraud.

Entrepreneurship or commercial enterprise fraud is a specific type of immigration fraud outlined in 8 U.S.C. § 1325(d). This law states that any individual who knowingly establishes or operates a commercial enterprise with the primary purpose of evading US immigration laws is subject to criminal penalties. These penalties can include imprisonment of up to five years, fines, or both.

The primary objective of this legislation is to deter and punish individuals who attempt to circumvent immigration laws and gain unauthorized benefits by setting up businesses. This could include situations where an illegal immigrant uses a legitimate business as a front to employ themselves or others without proper authorization, or where a business is used as a means to facilitate or conceal other illegal activities related to immigration status.

To establish entrepreneurship fraud, federal authorities would need to prove that the primary purpose of establishing the commercial enterprise was to evade immigration laws. This could be challenging to demonstrate, and authorities would likely consider various factors, including the timing of the business formation, the nature of the business activities, and any patterns or evidence of other immigration violations.

In summary, entrepreneurship fraud is a serious offense that can carry significant penalties. It is a specific type of immigration fraud that targets those who use businesses to circumvent immigration laws. While the intention may be to provide employment or other opportunities, violating immigration laws through fraudulent means can have severe consequences for those involved.

Re-entry without permission

The law regarding illegal re-entry is applied to migrants and asylum seekers who re-enter the United States without permission after having been previously deported or subject to a removal order. This includes individuals who enter the country between designated ports of entry, avoid examination or inspection by immigration officers, or make false statements while entering or attempting to enter.

In recent years, there has been an increase in the number of prosecutions for illegal re-entry, particularly during the Trump administration. This has resulted in the separation of families and the incarceration of adult family members, leading to children being placed in shelters or foster homes. The high conviction rates and mandatory incarceration for these offences have significant financial costs for the U.S. government and detrimental effects on the individuals involved.

There has been criticism of the law on illegal re-entry due to its racist and discriminatory impact, particularly on Mexican and Latinx individuals. Additionally, there are concerns about due process violations in the rushed nature of the proceedings, language barriers, and lack of access to adequate legal representation.

Frequently asked questions