Is it a Crime to Enter The U.S. Illegally?

Illegal entry (or "improper entry") to the US carries criminal penalties (fines and jail or prison time), in addition to civil penalties and immigration consequences (deportation and bars from future entry).

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 illegally more than once, or enters illegally after an order of removal (deportation) or having been convicted of an aggravated felony.

What Is Illegal Entry?

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), or
  • 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 - www.uscis.gov/laws/immigration-and-nationality-act.)

Criminal Penalties for Improper Entry

For the first improper entry offense, the person can be fined (as a criminal or civil penalty), or imprisoned for up to six months, or both. This is considered a misdemeanor under federal law (18 U.S.C.A. § 3559).

For a subsequent offense, or a reentry (or attempted reentry) after exclusion or deportation, the person can be fined or imprisoned for up to two years, or both. (See 8 U.S.C. Section 1325, 1326, I.N.A. Section 275, 276.) This is considered a low-level felony under federal law (18 U.S.C.A. § 3559).

Criminal Penalties for Unlawful Reentry

In case the above penalties aren't enough to deter illegal U.S. entrants, a separate section of the law adds felony 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 a prison sentence was complete may be incarcerated for the remainder of the sentence of imprisonment, without any reduction for parole or supervised release.

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

Civil Penalties

Entry (or attempted entry) at a place other than one designated by immigration officers can carry civil penalties instead of or on top of criminal 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.)

Immigration Consequences of an Improper Entry

A person who comes to the United States without permission of the 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 became theoretically eligible for a green card or other immigration status, he or she would be ineligible to apply for it through the process known as "adjustment of status" within the United States. By leaving the U.S. and applying from overseas, the inadmissibility problem could 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, he or she would run into a separate ground of inadmissibility, based on "unlawful presence" in the United States. (For more on how that affects your possibilities of obtaining a green card, see Legal Options for an Undocumented Immigrant to Stay in the U.S.)

If a person 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 a grounds 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 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 may benefit from exceptions not described here.

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