However, as with most things in the legal system, "clarity" is a thing most often missing.
Or, to quote me: "Any intersection between the legal system and justice is purely coincidental."
So, I did some research of the exact nature of this "criminal" behavior. Interesting results.
The short answer is that being here "illegally" can be either a "criminal" OR a "civil" issue.
If a person ENTERS the USA illegally, it is a criminal issue. If such person is here via what is called "Unlawful Presence" (e.g., overstaying a visa authorization), it is a civil issue.
Below are (1) Title 8 Section 1325 of the USC (United States Code - a consolidation and codification by subject matter of the general and permanent laws of the United States) pertaining to those here "illegally"; and (2) a clarifying article on the subject - most informative, this.
Title 8 U.S.C. § 1325 : US Code - Section 1325: Improper entry by alien
(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts Any alien who:
----(1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers,
---- (2) eludes examination or inspection by immigration officers,
---- (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.
(b) Improper time or place; civil penalties. Any alien who is 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 of:
---- (1) at least $50 and not more than $250 for each such entry (or attempted entry);
---- (2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.
Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.
(c) 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 5 years, or fined not more than $250,000, or both.
(d) Immigration-related entrepreneurship fraud. Any individual who knowingly establishes a commercial enterprise for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, fined in accordance with title 18, or both.
Is Illegal Immigration a Crime? Improper Entry v. Unlawful Presence
By Brett Snider, Esq. on July 9, 2014
What's the "illegal" part of being an illegal immigrant? Is it a crime to simply be an undocumented immigrant residing in the United States? What about "sneaking" across the border?
Even lawyer-politicians like New Jersey Gov. Chris Christie have come under fire for getting it wrong; back when Christie was a federal prosecutor, his office had to clarify statements he made at a church forum that led to backlash, The Star-Ledger reported.
The confusion lies in the legal difference between improper entry and unlawful presence. Here's what you need to know:
Improper Entry Is a Crime
To be clear, the most common crime associated with illegal immigration is likely improper entry. Under federal criminal law, it is misdemeanor for an alien (i.e., a non-citizen) to:
- Enter or attempt to enter the United States at any time or place other than designated by immigration officers;
- Elude examination or inspection by immigration officers; or
Attempt to enter or obtain entry to the United States by willfully concealing, falsifying, or misrepresenting material facts. The punishment under this federal law is no more than six months of incarceration and up to $250 in civil penalties for each illegal entry. These acts of improper entry -- including the mythic "border jumping" -- are criminal acts associated with illegally immigrating to the United States.
Like all other criminal charges in the United States, improper entry must be proven beyond a reasonable doubt in order to convict.
Unlawful Presence Is Not a Crime
Some may assume that all immigrants who are in the United States without legal status must have committed improper entry. This simply isn't the case. Many foreign nationals legally enter the country on a valid work or travel visa, but fail to exit before their visa expires for a variety of reasons.
But mere unlawful presence in the country is not a crime. It is a violation of federal immigration law to remain in the country without legal authorization, but this violation is punishable by civil penalties, not criminal. Chief among these civil penalties is deportation or removal, where an unlawful resident may be detained and removed from the country. Unlawful presence can also have negative consequences for a resident who may seek to gain re-entry into the United States, or permanent residency.
Both improper entry and unlawful presence should be avoided by any immigrant to the United States, but an illegal alien cannot be criminally charged or incarcerated simply for being undocumented.