In the United States, if someone is in the country illegally (i.e., without proper immigration status or authorization), they are generally in violation of immigration law. The primary law that addresses this issue is found in the Immigration and Nationality Act (INA), which governs most aspects of immigration law in the U.S.
Key Violations for Being in the U.S. Illegally:
Unlawful Presence:
- Under the INA, being in the U.S. without proper authorization (e.g., without a visa, after a visa expires, or without lawful permanent resident status) constitutes unlawful presence.
- Unlawful presence is not automatically a criminal offense, but it can lead to civil penalties, such as deportation and being barred from re-entering the U.S. for a period of time.
- - For instance, someone who enters the U.S. without inspection (i.e., illegally crosses the border) or overstays a visa is considered to be unlawfully present.
Illegal Entry (Criminal Violation):
8 U.S. Code § 1325 criminalizes illegal entry into the U.S. by someone who:
- Enters without inspection (e.g., crossing the border without authorization), or
- Attempts to enter through fraudulent means (e.g., using fake documents).
A violation of 8 U.S.C. § 1325 can be charged as a misdemeanor for a first offense, and a felony for repeat offenders or if the individual has been previously deported and re-enters illegally.
- Misdemeanor: A first offense can carry a penalty of up to 6 months in prison.
- Felony: If a person is caught re-entering the U.S. after being deported or removed, they could face up to 2 years in prison (or up to 10 years for subsequent offenses).
Overstaying a Visa (Civil Violation with Consequences):
- If someone enters the U.S. legally on a visa but stays beyond the allowed duration (i.e., overstays their visa), they are considered to be unlawfully present. This is not immediately a criminal offense but can lead to deportation.
- If someone overstays a visa for more than 180 days but less than one year and leaves the U.S., they face a 3-year ban from re-entry. If they overstay for more than one year, they face a 10-year ban from re-entering the U.S.
Violation of Deportation Orders:
- If someone has been ordered removed (deported) by an immigration court and re-enters the U.S. without permission, they can be charged with illegal re-entry after deportation under 8 U.S.C. § 1326.
- Re-entry after deportation is a felony and can result in a prison sentence of up to 20 years, depending on the circumstances (e.g., whether the individual has prior convictions or if the deportation was related to certain serious crimes).
Consequences of Being in the U.S. Illegally:
- Deportation (Removal): Individuals found to be in the U.S. illegally are often subject to deportation or removal proceedings.
- Bars to Re-entry: Being unlawfully present in the U.S. for certain periods of time can result in bars to re-enter the country for a specified number of years (3 years, 10 years, or permanently in extreme cases).
- Criminal Penalties: As mentioned, individuals may face criminal charges under 8 U.S.C. § 1325 (illegal entry) or 8 U.S.C. § 1326 (illegal re-entry).
Immigration Enforcement:
- Enforcement of immigration laws is primarily carried out by U.S. Immigration and Customs Enforcement (ICE), the Customs and Border Protection (CBP), and other federal agencies. Local law enforcement may also cooperate with federal immigration authorities under certain circumstances.
In Summary:
The specific laws broken when someone is in the U.S. illegally involve violations of the Immigration and Nationality Act (INA), particularly:
- 8 U.S.C. § 1325: Illegal entry into the U.S.
- 8 U.S.C. § 1326: Illegal re-entry after deportation or removal.
- 8 U.S.C. § 1182: Grounds for inadmissibility, which includes staying past the authorized period or entering without proper documentation.
Being in the U.S. illegally is primarily a civil immigration violation, but it can also lead to criminal charges, especially in cases of illegal entry, fraud, or re-entry after removal.
