Illegal Entry Into The Us: Understanding The Law And Consequences

Illegal entry into the US is a federal crime that can result in civil penalties, including fines, imprisonment, and deportation. The laws used to prosecute people for entering the US without permission are Sections 1325 (illegal entry) and 1326 (illegal reentry) of Chapter 8 of the U.S. Code. These laws have been criticised for advancing racist and anti-immigrant policy goals, with data showing that prosecutions disproportionately impact Mexican and Latinx individuals. Unlawful entry can include crossing the border at an unguarded location, entering without inspection by immigration officers, or providing false or misleading information. Consequences for illegal entry can include fines, imprisonment, and bans on re-entry, with harsher penalties for repeat offences and additional crimes.

Imprisonment and fines for first-time offenders

Illegal entry into the US is a federal crime that carries civil penalties. The consequences of illegally crossing the US border include deportation and bans on re-entry into the US.

First-time offenders of illegal entry into the US may face imprisonment of up to six months, a fine of up to $2,000, or both. This is considered a misdemeanor.

The exact punishment for first-time offenders is outlined in Title 8, Section 1325 of the US Code (US.C.), or Section 275 of the Immigration and Nationality Act (INA). This section of the law covers improper entry, which includes:

• Entering or attempting to enter the US at any time or place other than one designated by US immigration officers (i.e., away from a border inspection point or other port of entry).
• Eluding examination or inspection by US immigration officers.
• Attempting to enter or obtaining entry to the US by a willfully false or misleading representation or willful concealment of a material fact (e.g., lying on a visa application or buying a false green card or other entry document).

In addition to the penalties outlined above, first-time offenders may also face civil penalties of $50 to $250 for each entry or attempted entry.

Increased penalties for repeat offenders

The penalties for illegal entry into the US are outlined in Title 8, Section 1325 of the US Code (US.C.), or Section 275 of the Immigration and Nationality Act (INA). These penalties are progressive, increasing in severity if a person enters the US illegally more than once, or if they enter illegally after a final order of removal (deportation) or after having been convicted of an aggravated felony.

For a first offence, a person can be imprisoned for up to six months, fined, or both. For subsequent offences, the penalty increases to a prison sentence of up to two years, a fine, or both.

Section 1326 of the US Code, or Section 276 of the INA, adds further penalties for re-entry (or attempted re-entry) in cases where the person had been convicted of certain types of crimes and deported from the US. These penalties are as follows:

• People deported due to a conviction of three or more misdemeanours involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), shall be fined, imprisoned for up to ten years, or both.
• People deported after a conviction of an aggravated felony shall be fined, imprisoned for up to 20 years, or both.
• People excluded or deported from the US for security reasons shall be fined, and imprisoned for up to ten years, with the sentence not running concurrently with any other sentence.
• Non-violent offenders who were deported from the US before completing their prison sentence shall be fined, imprisoned for up to ten years, or both.

In addition to these penalties, a person deported before the completion of their prison sentence may be incarcerated for the remainder of their sentence, without any reduction for parole or supervised release.

Marriage fraud

U.S. Law on Marriage Fraud

> Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than five years, or fined not more than $250,000, or both.

Typical Scenario

In a typical marriage fraud case, a U.S. citizen marries an alien. They fulfill all the state law requirements, such as medical tests, licensing, and a ceremony. However, the U.S. citizen is often paid to marry the alien, and there is no intention to live together as a married couple.

Legal Issues

A legal issue arises when the couple tells the Immigration and Naturalization Service (INS) that they are married, believing they are telling the truth because they have complied with state marriage requirements. However, the Supreme Court has ruled that the validity of their marriage under state law is immaterial to the issue of whether they defrauded the INS.

Indicators of Marriage Fraud

While these factors alone do not prove marriage fraud, immigration officials may consider them during their investigation:

• Lack of shared residence
• Minimal joint financial assets
• Significant age differences, especially when combined with other suspicious factors
• Differing cultural or religious backgrounds
• A short time between meeting and marriage, especially if the marriage occurs soon after a deportation order
• Inconsistent stories during interviews about their relationship, courtship, and daily life

Defense Strategies

If accused of marriage fraud, an experienced attorney can employ various strategies to counter the allegations:

• Validating the marriage with thorough documentation, such as a marriage certificate, rental agreements, and joint bank account statements
• Witness testimony from credible individuals who can attest to the authenticity of the relationship
• Addressing errors or misunderstandings in the investigation process
• Highlighting cultural differences or language barriers that may have led to miscommunications or misunderstandings
• Presenting mitigating circumstances, such as coercion or misinformation from legal advisors

Entrepreneurship fraud

Immigration-related entrepreneurship fraud is a serious offence in the United States, and those found guilty can face imprisonment of up to five years, fines, or both. This law relates to individuals who knowingly establish a commercial enterprise for the purpose of evading any provision of the immigration laws.

The International Entrepreneur Rule (IER) allows the Department of Homeland Security (DHS) to grant a period of authorised stay, known as "parole", to alien entrepreneurs who can demonstrate that their stay will provide a significant public benefit through their business venture. Parole is granted on a case-by-case basis, and entrepreneurs must meet specific criteria and provide detailed evidence to be considered.

To be eligible for parole under the IER, entrepreneurs must demonstrate:

• Substantial ownership (at least 10%) in the startup business and a central, active role in its operations.
• The startup business must be a U.S. entity, formed within the past five years, with substantial potential for rapid growth and job creation.
• The business must have received a qualified investment, qualified government grant, or a combination of both, meeting specific monetary thresholds.

Spouses and unmarried minor children of entrepreneurs can also apply for parole and may be eligible for employment authorisation under certain conditions.

It is important to note that any misrepresentation or concealment of facts during the application process can be considered immigration-related entrepreneurship fraud and may result in legal consequences.

Deportation and bans on re-entry

Deportation is a serious matter that can have long-lasting consequences. In the United States, deportation is governed by Title 8 of the U.S. Code, specifically Sections 1325 and 1326, which pertain to "illegal entry" and "illegal re-entry", respectively. These laws impose criminal penalties on individuals who enter or attempt to enter the country without proper authorization.

Grounds for Deportation

There are several reasons why a person may be deported from the United States, including:

• Inadmissibility when entering the country or adjusting status (e.g., obtaining a green card)
• Violating the terms of their immigration status
• Committing certain criminal offenses
• Failing to register with immigration authorities or falsifying documents
• Posing a threat to national security

Consequences of Deportation

Deportation typically results in a period of inadmissibility, during which the individual is banned from re-entering the United States. The length of this ban can range from 5 years to a permanent ban, but it is usually 10 years. Those who re-enter the country illegally after being deported face additional criminal charges and longer bans.

Re-entry Procedures

The process for re-entry after deportation varies depending on the reasons for deportation, the number of violations, and other factors. In general, individuals seeking re-entry will need to demonstrate their eligibility for a visa or green card and may need to apply for waivers or permissions to reapply for admission. The specific documentation and requirements depend on the individual's circumstances and the reasons for their deportation.

Waivers and Permissions for Re-entry

Individuals who wish to re-enter the United States after deportation may need to complete the USCIS Form I-212, which is a request for the government to lift the bar on re-entry early. However, this option is not available to convicted felons. For those deported due to certain reasons, such as unlawful presence or serious crimes, an additional waiver of the grounds for inadmissibility (USCIS Form I-601) is necessary.

Legal Assistance

Applying for re-entry after deportation is a complex legal process, and it is recommended to consult an experienced immigration attorney who can guide individuals through the process and help prepare the necessary documentation.

Frequently asked questions