Is It a Crime to Enter the U.S. Illegally?

Whether it's by crossing the U.S. border with a "coyote" or buying a fake U.S. passport, a foreign national who enters the U.S. illegally can be both convicted of a crime and held responsible for a civil violation under the U.S. immigration laws. Illegal entry also carries consequences for anyone who might later attempt to apply for a green card or other immigration benefit.

The penalties and consequences get progressively more severe if a person enters the United States illegally more than once, or enters illegally after a final order of removal (deportation) or after having been convicted of an aggravated felony.

What Is Illegal Entry to the United States?

U.S. immigration law actually uses the term "improper entry," which has a broad meaning. It's more than just slipping across the U.S. border at an unguarded point. Improper entry can include:

• entering or attempting to enter the United States at any time or place other than one designated by U.S. immigration officers (in other words, away from a border inspection point or other port of entry)
• eluding examination or inspection by U.S. immigration officers (people have tried everything from digging tunnels to hiding in the trunk of a friend's car)
• attempting to enter or obtain entry to the United States by a willfully false or misleading representation or willful concealment of a material fact (which might include, for example, lying on a visa application or buying a false green card or other entry document).

(See Title 8, Section 1325 of the U.S. Code (U.S.C.), or Section 275 of the Immigration and Nationality Act (I.N.A.) for the exact statutory language.

Criminal Penalties for Improper Entry to the United States

For the first improper entry offense, the person can be fined (as a criminal penalty), or 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. (See 8 U.S.C. Section 1325, I.N.A. Section 275.)

But just in case that isn't enough to deter illegal entrants, a separate section of the law adds penalties for reentry (or attempted reentry) in cases where the person had been convicted of certain types of crimes and thus removed (deported) from the U.S., as follows:

1. People removed for a conviction of three or more misdemeanors 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.
2. People removed for a conviction of an aggravated felony shall be fined, imprisoned for up to 20 years, or both.
3. People who were excluded or removed from the United States for security reasons shall be fined, and imprisoned for up to ten years, which sentence shall not run concurrently with any other sentence.
4. Nonviolent offenders who were removed from the United States before their prison sentence was up shall be fined, imprisoned for up to ten years, or both.

What's more, someone deported before completing their prison sentence may be incarcerated for the remainder of the sentence, without any reduction for parole or supervised release.

(See 8 U.S.C. Section 1326, I.N.A. Section 276.)

Civil Penalties for Unlawful Entry to the United States

Entry (or attempted 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 illegal entrant has been previously fined a civil penalty for the same violation. (See 8 U.S.C. Section 1325, I.N.A. Section 275.)

What Happens If You're Caught in the U.S. After an Illegal Entry

After an illegal entry, the non-citizen faces arrest by U.S. Immigration and Customs Enforcement (ICE). What happens next depends on:

• where they are when caught, and
• whether they have been ordered deported in the past.

If caught within 100 miles of the U.S. border, where U.S. Customs and Border Protection ("CBP") patrols, they can place you in expedited removal proceedings; in other words, deport you quickly, without a hearing.

If caught deeper within the United States, you will likely be placed into removal proceedings in immigration court and charged with being either "removable" or "inadmissible" under U.S. immigration law. Prior to the first court hearing, called a "master calendar" hearing, you should receive a Notice to Appear ("NTA"), along with charging documents and a Notice of Hearing in Removal Proceedings. These documents will state the immigration-related charges against you and the date and time to appear in immigration court.

The U.S. government places many people into removal proceedings, but not all of them get deported. You, the "respondent," might be able to assert an affirmative defense or request relief from removal. An affirmative defense says, in essence, "Even if the facts alleged in my case are true, I should not, under the law, be deported, for X reason." That reason might be that you qualify for a waiver, cancellation of removal, or some other relief. For example, you might say, "Yes, I'm in the U.S. illegally, but I deserve to be granted asylum based on my fear of return to my home country as a persecuted minority."

If it appears you have a valid defense such as this, the immigration judge will schedule you for a "merits" hearing at a later date. (However, depending on concerns like whether you've committed a crime in the past, you might be held in immigration detention while waiting, unless you can pay a bond.) The judge is a U.S. government employee, but expected to make an objective decision after hearing your arguments and those of the government attorney. The judge will issue a final order either removing you from the U.S. or granting your application for relief from removal based upon the evidence considered.

This is just the immigration portion of the proceedings that could be initiated against you, however. The U.S. government could separately choose to charge you with the crime of illegal entry, in federal criminal court. Often the adult members of a family are the only ones imprisoned, but their children are placed at shelters for unaccompanied minors or in foster homes. Definitely see a lawyer if you're facing criminal charges like this.

Long-Term Immigration Consequences of an Improper U.S. Entry

A person who comes to the United States without permission of U.S. immigration authorities is inadmissible. To learn more about inadmissibility, see Who Can't Get Into The United States?

In practice, that usually means that if the person happened to became theoretically eligible for a green card or other immigration status, they would be ineligible to adjust status within the United States. By leaving the U.S. and applying from overseas, the inadmissibility problem could potentially be solved; unless the person had already stayed in the U.S. for six months or more without a right to be there. In that case, they would run into a separate ground of inadmissibility, based on "unlawful presence" in the United States. (For more on how that affects one's possibilities of obtaining a green card, see Legal Options for an Undocumented Immigrant to Stay in the U.S.)

If someone was removed from the U.S. (deported) on the basis of a conviction for an aggravated felony (other than illegal entry or reentry), then the improper entry itself is considered to be an aggravated felony. (See 8 U.S.C. § 1101(a)(43)(O).) Having one of more aggravated felonies on one's record is a huge problem, because aggravated felonies bar a person from virtually all immigration benefits, and are also a ground of deportability (under 8 U.S.C. 1227, I.N.A. Section 237).

See an Expert

This article can help acquaint you with the laws affecting illegal entry. However, if you have entered the U.S. illegally and are facing court proceedings (immigration or criminal) or are hoping to apply for a green card or other immigration benefit, you should absolutely see an immigration attorney for a personal analysis of your situation. You might benefit from exceptions not described here.