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The new Atty. Gen. of the United States, “Jeff” Sessions, has announced a new policy that immigration enforcement at America’s borders will be strengthened, with priority given to “federal court prosecutions of immigration violators across the nation.” Thus, it is important to know the civil and criminal consequences of illegally crossing into the United States “at a place other than that designated by the Atty. Gen.” (In other words, “sneaking across the border.)

A Single Illegal Entry: Civil Consequences.

With a single illegal entry the alien immediately starts the clock running on “unlawful presence” or “ULP.” If an alien accrues more than 180 days but less than a year and subsequently departs the United States, he or she is barred for 3 years from returning. If the alien accrues a year or more of ULP and then departs, he or she is barred from returning for a full 10 years.

A Single Illegal Entry: Criminal Consequences. It has long been the law that a single illegal entry into the United States is also a federal misdemeanor, 8 U.S.C. 1325, punishable by a fine and up to six months imprisonment. Federal prosecution of the offense will now give the alien a “criminal record,” although there is a strong argument that the offense is simply an administrative violation and not a more serious “crime involving moral turpitude,” or CIMT.

In the 15 years I’ve been practicing immigration law I have seen exactly 3 prosecutions for this offense. Up to this point the government has considered it sufficient to put the alien into removal proceedings and send him or her home, or litigate any claim to remain in immigration court. What will be accomplished by adding a “criminal record” the alien’s file in addition to the civil enforcement proceedings is something of a mystery to me.

Multiple Illegal Entries: Civil Consequences. There are a number of civil consequences to a second illegal entry into the United States. First, if the alien was unlawfully present in the United States for more than one year and then reenters, he is subject to the so-called “permanent bar.” While there may be waivers of the so-called permanent bar, an application for a waiver cannot be made until 10 years after the date of last departure.

Second, while the permanent bar may not apply if a person is eligible for something called “cancellation of removal” in immigration court, that remedy requires that the alien be “continuously present” in the United States for over 10 years. It is possible for there to be a break in this presence due to travel to the home country and reentry, but that period of time cannot exceed 90 days.

Multiple Illegal Entries: Criminal Consequences. Basically, a second violation of 8 U.S.C. 1325 can result in a term of imprisonment of up to two years!

Even worse criminal consequences if reentry occurs in violation of an order of removal. 8 U.S.C. 1326 also subjects an alien to up to two years in prison if he or she enters in violation of a previous order of removal. However, the terms of imprisonment are vastly increased if that alien has a criminal record. The maximum term for someone who reenters after convictions “of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony)” can be up to 10 years. If an alien with a so-called “aggravated felony” on his record reenters the United States, the maximum term of imprisonment can be up to 20 years!

I have always counseled clients who have orders of removal never to reenter without prior permission. The statutes penalizing reentries for aliens with criminal records have always been enforced, particularly in the case of aggravated felonies. Clearly we will see much more of the same under the current administration.

Consequences for aliens seeking asylum. Believe it or not, an alien legitimately seeking asylum who enters illegally will not necessarily lose his or her right to obtain it if prosecuted for an unlawful entry. However, it is essential that the alien state at the earliest possible opportunity that the reason they are here in the United States is for asylum. The same is also true if an alien previously removed seeks to reenter as a result the persecution in the home country. I have had a number of “reentry cases” like this although the protection granted is less than asylum. But, trying to “sneak into” the United States to for asylum or withholding will be much more harshly treated now than it was in the past.

The cleanest way to seek asylum as a first-time entrant or for withholding of removal as a second time entrant is to present oneself at a port of entry and make the claim in person. That may mean that your case is litigated while you are undergoing a lengthy detention, but better that than to lose the opportunity at all in the rush to criminalize unlawful injuries.


Brian D. O'Neill Attorney at Law, LLC

Immigration, Employment and Business Law


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