Is Crossing the Border a Felony?: 8 U.S. Code § 1325 & Other Immigration Laws

Last year, the U.S. Border Patrol on the Coastal, Northern, and Southwest borders apprehended nearly 859,000 individuals in the year 2019 – 852,000 of those being from the Southwest border. This is the largest number by far since 2006, when the number was just over a million apprehensions. But why are these apprehensions being conducted? When is crossing the border a crime? While crossing the border illegally may come with criminal and/or civil charges and penalties, it is not likely that a defendant will be charged with a felony in most first-time offender cases. However, it is still necessary to be aware of what is considered improper entry and how to enter the country legally.

What Is Improper Entry?

Defined under 8 U.S. Code § 1325, improper entry occurs when an individual enters, or even attempts to enter, the U.S. at a time or place that isn’t designated by immigration officers, avoids being inspected by immigration officers, or uses willfully untrue or misleading information in order to enter the U.S. under false pretenses. This means that attempting to cross the border at any place other than a border inspection point or other official port of entry is illegal. This also includes going through a legal port of entry but hiding from border patrol in order to avoid detection. Using fake entry documents or providing false information in order to unlawfully obtain entry documents may also be charged as improper entry.

Penalties for Improper Entry

Crossing the border illegally can result in both criminal and civil charges. For criminal penalties, they may be subject to up to six months in jail and a fine for their first offense, and any subsequent offenses can reach two years in prison. Generally, a first time charge of improper entry, when assigned criminal charges, will likely only be a misdemeanor, dependent on a lack of aggravating factors. However, any offenses after that may result in a felony charge.

For civil charges, they can be fined $50 to $250 for the first entry and $100 to $500 for every reentry after that. The law also notes that civil charges should only be pressed in addition to criminal charges, not instead of.

Other Immigration Related Crimes

Immigration crimes typically fall into three categories: illegal entry and reentry, harboring or transporting aliens, and fraud. All of these immigration crimes make up the majority of the federal criminal justice system, accounting for 34.4 percent of all federal cases in 2018. 82.4 percent of those cases were for improper reentry or unlawful presence.

Unlawful Entry, Reentry, or Presence Crimes

Improper entry and repeat offenses were outlined in 8 U.S. Code § 1325, but there are a few other laws that lay out more specifics of what lawful presence is and what penalties come with violating it. In the next section, 8 U.S. Code § 1326, there are more punishments outlined for aggravating circumstances, especially those in which the immigrant had already been removed from the country. This law applies to those who have “been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding,” and makes it a felony for them to enter, attempt to enter, or be in the U.S. It does provide several exceptions, including special permission from the Attorney General. A basic violation of this law can result in up to two years in prison, a fine, or both.

From there, it breaks down punishments for immigrants to reenter the country after being removed for certain reasons. If they were removed for committing three or more misdemeanors involving drugs or crimes against a person or for a felony (not including aggravated felonies), the prison time may increase to ten years. Reentry after removal as a result of an aggravated felony doubles that time to twenty years. Those who were deported before completing their sentence will be subject to completing the full length of their sentence, not eligible for parole, as well as other punishments for reentry.

An immigrant may protest the validity of their deportation for a few reasons, but they must prove that they did every administrative remedy necessary to avoid the order, didn’t receive their fair judicial review in their deportation proceedings, and that the order was “fundamentally unfair.” If the deportation can be deemed unjust and the Attorney General gives permission, a previously removed immigrant may be lawfully allowed to reenter the country.

Harboring or Transporting Illegal Aliens

8 U.S. Code § 1324 describes quite a few crimes involving assisting aliens in any way. For one, it makes it a crime to knowingly bring in an immigrant through any place other than designated ports of entry, transport them across the country, conceal or harbor them, or encourage them to enter or remain in the country illegally. Moreover, it’s even a crime to just conspire to commit any of these crimes or aid and abet them. Those who didn’t necessarily commit the crime knowingly, but acted with reckless disregard for discovering the truth can also be held criminally liable. These penalties get pretty specific and can apply to each alien the defendant assisted:

• Knowingly helping an alien to enter the country: Up to ten years and a fine
• Knowingly transporting an alien: Up to five years and a fine
• Knowingly concealing or harboring an alien: Up to five years and a fine
• Knowingly encouraging someone to illegally come to or remain in the country: Up to five years and a fine
• Transporting, concealing, or encouraging an alien to enter or remain in the country illegally for private financial gain: Up to ten years and a fine
• Aiding and abetting any of the above crimes: Up to five years and a fine
• Conspiring to commit any of the above crimes: Up to ten years and a fine
• Any of these crimes occur with serious bodily injury or placing someone’s life in jeopardy: Up to twenty years and a fine
• Any of these crimes occur with a death: Up to any number of years, life in prison, and/or a fine

In the case of larger criminal enterprises, when groups of ten or more are being transported, or when the defendant posed a safety or health risk to the immigrants or people in the U.S., up to ten years may be added to their sentence. Other penalties may include the seizure of any vehicles, boats, aircraft, or other methods used in the crime, as well as any profit made.

Employing Aliens

This code also makes it illegal to hire those that are unlawfully present in the U.S. An employer who hires at least ten aliens for a year can be fined and receive up to five years in prison.

Immigration Fraud

There are many ways that someone can give false or misleading information in order to obtain documents verifying their legal presence or otherwise give the impression of their legality. One of these is marriage fraud, which is when someone gets married only with the intention of avoiding immigration laws. This includes not just the immigrant, but the person who knowingly marries them for this reason as well. They can both be fined up to $250,000 or imprisoned for 20 years, or both.

Visa fraud is another serious crime, which involves forging or altering a visa, permit, alien registration receipt card, border crossing card, or any other type of legal immigration document, as well as knowingly using, attempting to use, or possessing any of these false documents, whether the recipient is an immigrant or not. This can also include giving false or misleading information, withholding information, or otherwise using false pretenses to obtain one of these documents. Some ways this may occur is when an immigrant applies for one of these official documents with a false name, impersonating someone, or using a deceased individual’s identity. This law also prohibits the selling or transferring of the documents from the legally intended recipient. Additionally, just owning the materials to forge these documents is punishable under this section. As these crimes are all eligible for felony charges, the penalties may include a fine, as well as up to ten years for the first and second offenses – as long as there are no aggravating factors. Any offense after that may reach 15 years in prison. If the offense occurred to facilitate a drug trafficking crime, that may be increased to 20 years, and if it’s to facilitate an act of terrorism, it’s up to 25 years. As far as using identification documents for immigration purposes, it punishes the following with a fine and up to five years in prison:

“Whoever uses –
(1) an identification document, knowing (or having reason to know) that the document was not issued lawfully for the use of the possessor,
(2) an identification document knowing (or having reason to know) that the document is false, or
(3) a false attestation.”

Other immigration fraud crimes include:

• Falsely and willfully claiming to be a citizen of the U.S. can come with fine and up to three years in prison.
• Passport fraud involves giving false information in order to obtain a passport or using a passport knowing it wasn’t obtained legally. It’s punishable by ten to 25 years.
• Identity fraud to related to immigration is punishable by anywhere between five to 30 years in prison and/or a fine.

Various Other Immigration Crimes

Some other immigration crimes include:

• A high speed chase from an immigration checkpoint is punishable by up to five years in prison and a fine.
• Harboring an alien for immoral purposes, such as prostitution, can come with up to ten years in prison and a fine.
• If the defendant refuses to leave the country after being served a final order or removal, they may be fined or imprisoned for up to four years, or both.
• Refusing to comply with the terms required for the defendant to be released under supervision can be punishable by up to a year in prison and a $1,000 fine.
• An alien refusing to apply for registration and be fingerprinted is subject to up to six months in jail and a $1,000 fine.
• An alien who doesn’t provide notification of a change of address may receive up to thirty days in jail or a $200 fine, or both.

How to Legally Immigrate to the U.S.

The United States provides several paths to immigration, most being through a visa, which one can acquire by being sponsored by a family member or an employer that is either a citizen or permanent resident of the U.S. As such, visas can be divided into two types: family based immigration and employer based immigration.

In most cases, the general process for obtaining a visa is as follows:

1. Find a family member or employer to sponsor you, and you or they will likely have to file an immigration petition.
2. Once this petition is approved, if a visa is available for you, you will then apply for an immigrant visa.
3. You’ll need to get a medical examination.
4. Be interviewed.
5. Receive the decision regarding your application.

Family Based Immigration

This requires that the immigrant have a sponsor who is over 21 years old and either a U.S. citizen or green card holder (permanent resident). This will typically either be an immediate relative – a spouse, child, or parent – or a more distant relative, although visas based on these more distant relationships are limited each year. U.S. citizens may sponsor a spouse, child, sibling, or parent, while lawful permanent residents may only sponsor a spouse or unmarried child.

Employer Based Immigration

These are limited to only 140,000 recipients every fiscal year, and they generally require a job offer from a U.S. employer. First preference is given to priority workers and those with an extraordinary ability, such as those who are in the sciences, arts, education, athletics, or business, and they must display their recognition and acclaim in their expertise. This may also include exceptional researchers and professors who have at least three years of experience and are internationally recognized. They must be coming to pursue tenure or some other comparable position at some type of institution of higher learning. Multinational executives are also given first priority, especially those who have been employed for one of the last three years by an overseas affiliate or branch of a U.S. company. They must have a managerial or executive background and be coming here to pursue that career.

The next preference goes to those with higher degrees and exceptional ability. This includes those who hold at least a Bachelor’s degree with at least five years of experience, as well as those who don’t have the recognition of an extraordinary talent, but are still exceptional in their fields.

Third preference is for general workers and professionals. Fourth priority goes to the following special immigrants:

• Certain broadcasters
• Ministers of religion and certain religious workers
• Certain employees or former employees of the U.S. Government Abroad
• Certain Former Employees of the Panama Canal Company or Canal Zone Government, the U.S. Government in the Panama Canal Zone, the Panama Canal Company, or Canal Zone Government
• Certain Iraqi and Afghan interpreters/translators 
• Iraqi and Afghan nationals who have provided faithful and valuable service while they were employed by the U.S. government while residing in Iraq
• Certain foreign medical graduates 
• Certain retired International Organization employees, unmarried S\sons and daughters of International Organization employees, and surviving spouses of deceased International Organization employees
• Special immigrant juveniles
• Persons recruited outside of the U.S. to serve or those who are enlisted to serve in the U.S. Armed Forces
• Certain retired NATO-6 civilians, unmarried sons and daughters of NATO-6 civilians, and surviving spouses of deceased NATO-6 civilian employees
• Beneficiaries of petitions or labor certification applications filed before September 11^th, 2001, if the petition or application was voided as a result of the terrorist acts that took place on September 11^th, 2001

Finally, last preference goes to immigrant investors, those who are looking to invest capital in enterprises that will create jobs. Those who are approved for an employment visa are able to also apply for their spouses and children younger than 21 to be able to immigrate with them.

Recently, the Trump administration instituted a “zero tolerance” policy regarding illegal immigration, which means many immigrants who likely would have only received a civil penalty on their first offense will receive criminal charges. Many await trials and deportation in federal criminal facilities. As such, those attempting to enter the U.S. illegally face a high risk of prosecution today, This prosecution will likely come with criminal charges, fines, jail time, and even ruining all chance the immigrant has of ever lawfully immigrating to the country. While crossing the border illegally may not be a felony, it will very likely be a misdemeanor; however, repeat offenses and other aggravating factors can very easily turn it into a felony charge.