Issue Tool Kit: Why Illegal Entry to the U.S. is a Criminal Offense

This column will help you explain to people why illegal entry into the United States is considered a criminal offense despite some attempts to characterize it as a civil one.

The Civil vs. Criminal Distortion

Illegal immigration has been portrayed at times as a civil matter, but the law has been misconstrued. It is a criminal act to cross into the United States outside of designated ports, punishable by a fine and up to 6 months in prison for a first-time offense, under 8 U.S.C. § 1325. However, some argue for its treatment as a civil matter, with an emphasis on status and rights instead of the act of entry. This line of argument overlooks the express criminality of the act, as established in federal law. The source of confusion is the Immigration and Nationality Act's civil proceedings, which address being present in the U.S. without status rather than the initial illegal entry. This two-track system allows for both criminal and civil penalties, with the criminal track generally being downplayed by those trying to diminish the seriousness of illegal immigration.

The Law is Clear

Illegal entry is criminalized in 8 U.S.C. § 1325 without requiring direct witnesses to the act. Circumstantial evidence, such as the lack of documents, will suffice for prosecution. Under the Trump administration's zero-tolerance policy, thousands were prosecuted under this statute, making it evident that it is criminal. But the Biden administration prioritized civil proceedings, which conveyed the message that illegal entry is merely a civil offense. This shift in enforcement, not in law, emboldens the myth. The law remains the same, and unlawful entry is a crime, regardless of policy preference. Ignoring this reality erodes the rule of law, a fundamental principle essential to maintaining order.

Federal Criminal Code — U.S.C. § 1325

(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts: Any alien who enters or attempts to enter the U.S. at an undesignated time or place, eludes inspection, or uses false representation or concealment of material facts faces a fine, up to 6 months imprisonment for a first offense, or both; subsequent offenses can lead to up to 2 years imprisonment…

So, Does It Matter?

Characterizing illegal immigration as a civil matter disarms deterrence. If illegally entering the U.S. is not subject to any criminal penalty, then the incentive to obey legal procedures is lost. Such a viewpoint also diverts attention from individual responsibility to making excuses based on systems, a scheme that undermines accountability. The recent unrest in Los Angeles, where immigration enforcement activities by federal law enforcement officers created an excuse for some to engage in violence, is a result of such framing. Protesters and certain leaders demanded leniency, disregarding and diminishing the criminality of illegal entry. This not only endangers public safety but also mocks the legal framework established to ensure national sovereignty and order.

A Call for Clarity

The debate over illegal immigration must recognize its criminal nature. 8 U.S.C. § 1325 is not a suggestion; it's a law. Calling it a civil matter is a talking point convenient for individuals who prefer compassion to consequence, but it does not accurately reflect reality. With Los Angeles and other cities in crisis, understanding this distinction is crucial. Leaders must enforce the law, not re-interpret it. The precedence must be upholding the rule of law, ensuring that entering the U.S. illegally is treated as the crime that it is, not rationalized as a minor civil matter. This is necessary to maintain order and respect the legal process. Bottom line - it is totally appropriate to call someone who violates 8 U.S.C. § 1325 a criminal. They broke the law.

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