Keith Mack
Illegal immigration is a highly controversial topic, with many people entering countries without permission. In the United States, this is known as Sections 1325 (illegal entry) and 1326 (illegal reentry) of Chapter 8 of the U.S. Code. These laws have been used to advance racist, anti-immigrant policy goals, with 94% of people prosecuted for unauthorised re-entry in 2020-21 from Mexico, Honduras, Guatemala and El Salvador. In addition to civil immigration detention and deportation proceedings, people who enter or re-enter the United States without authorisation are also subject to criminal sanctions.
| Characteristics | Values |
|---|---|
| Entering the US without permission | Sections 1325 ("illegal entry") and 1326 ("illegal reentry") of Chapter 8 of the U.S. Code |
| Marriage fraud | Section 1325 |
| Commercial enterprise fraud | Section 1325 |
| Failure to depart | Section 1325 |
| Fleeing immigration checkpoints | Section 1325 |
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What You'll Learn
Entering the US without permission
Section 1325 sets forth criminal offenses relating to (1) improper entry into the United States by an alien, (2) entry into marriage for the purpose of evading immigration laws, and (3) establishing a commercial enterprise for the purpose of evading immigration laws. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) amended 8 U.S.C. § 1325 to provide that an alien apprehended while entering or attempting to enter the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty.
Under federal law, people who enter or re-enter the United States without authorization are subject not only to civil immigration detention and deportation proceedings but also to criminal sanctions. In other words, after being charged with § 1326, for example, an individual with prior convictions could be put in federal prison for up to a 20-year sentence.
In recent years, people charged with §§ 1325 and 1326 have been challenging the law based on the fact that Congress enacted it for overtly racist purposes. Justice Department data shows how prosecutions for unauthorized reentry disparately impact Mexican and Latinx individuals: roughly 94 percent of people prosecuted for unauthorized reentry in fiscal years 2020-21 were from Mexico, Honduras, Guatemala, and El Salvador.
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Re-entering the US without permission
The law has been criticised for its racist intentions, having been passed in the late 1920s during the height of the eugenics movement to further white supremacist ideology. This racist legacy continues to be felt today, with Justice Department data showing that roughly 94% of people prosecuted for unauthorised reentry in fiscal years 2020-21 were from Mexico, Honduras, Guatemala, and El Salvador.
Despite this criticism, the law remains in place and is enforced by the US government, which has even launched ad campaigns warning illegal aliens to "self-deport and stay out" or face deportation and the inability to return to the US.
Individuals charged with illegal reentry have challenged the law based on its overtly racist origins and purposes. However, after completing their sentences, these individuals are often picked up by ICE and subsequently deported for the same crime, creating a cycle of criminalisation and deportation that disproportionately impacts people of colour.
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Marriage fraud
To prevent marriage fraud, U.S. immigration authorities conduct extensive investigations and interviews to determine the legitimacy of marriages. They may look for evidence of a bona fide relationship, such as shared finances, cohabitation, and knowledge of each other's personal details. If fraud is suspected, the immigration benefits sought through the marriage may be denied, and criminal charges may be filed.
It is important to note that marriage fraud is not limited to illegal immigrants but can also be committed by U.S. citizens or lawful permanent residents. In some cases, individuals may be coerced or tricked into participating in a fraudulent marriage without realising the full extent of the scheme. However, ignorance of the law is not a valid defence, and individuals who are found to have participated in marriage fraud may still face legal consequences.
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Commercial enterprise fraud
This could include, for example, a non-citizen setting up a business in order to obtain a work visa or other type of visa that they would not otherwise be eligible for. It could also include a non-citizen using a business to employ other non-citizens who do not have the legal right to work in the United States.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) amended Section 1325 to provide that an alien apprehended while entering or attempting to enter the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty. This means that if a non-citizen is caught trying to enter the country illegally in order to set up a fraudulent business, they may be subject to both criminal and civil penalties.
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Failure to depart
Illegal immigrants are subject to civil immigration detention and deportation proceedings, as well as criminal sanctions. The laws used to prosecute people for entering and re-entering the US without permission are Sections 1325 ("illegal entry") and 1326 ("illegal re-entry") of Chapter 8 of the U.S. Code. Section 1325 also sets forth criminal offenses relating to failure to depart, including:
- Improper entry into the United States by an alien
- Entry into marriage for the purpose of evading immigration laws
- Establishing a commercial enterprise for the purpose of evading immigration laws
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) amended Section 1325 to provide that an alien apprehended while entering or attempting to enter the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty. This means that illegal immigrants who fail to depart the country when required to do so are breaking the law and may be subject to penalties, including deportation.
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Frequently asked questions
Sections 1325 ("illegal entry") and 1326 ("illegal reentry") of Chapter 8 of the U.S. Code.
People who break these laws are subject to civil immigration detention and deportation proceedings, as well as criminal sanctions.
An individual with prior convictions could be put in federal prison for up to a 20-year sentence.
Marriage fraud and commercial enterprise fraud.
The Department of Homeland Security has announced a multimillion-dollar ad campaign warning illegal aliens to leave the country or face deportation.
