Is Illegally Entering America a Felony? What Federal Law Actually Says

If someone you love crossed into the United States without permission, you may be asking whether that act is a crime and how serious it is. For a first offense, illegally entering America is generally a federal misdemeanor, not a felony. Repeat entries and reentry after a removal order can carry felony-level penalties, and the charge depends on the person’s history.

Short Answer: Is Illegal Entry a Felony?

A first offense of improper entry is generally a misdemeanor, punishable by a fine, up to 6 months in prison, or both. For a first commission, the statute allows a fine, up to six months in prison, or both. A later offense raises the maximum to two years in prison.

So the first-offense range falls below that line, while the repeat-offense range can reach it.

The Federal Law That Defines Illegal Entry

8 U.S.C. § 1325 covers a noncitizen who enters or tries to enter the United States at a time or place not set by immigration officers. It also covers someone who eludes examination or inspection, or who gets in by a willfully false or misleading representation or willful concealment of a material fact.

It asks how the entry happened, so the facts of the crossing matter more than the label.

The same section sets a civil penalty of at least $50 and not more than $250 for each entry or attempted entry by an 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. Twice that amount applies after a prior civil penalty. Many people assume a civil fine ends the matter. The statute says civil penalties are in addition to criminal penalties, not in place of them.

When Illegal Entry Becomes a Felony

A repeat illegal entry is the first route to a higher penalty. Under the same section, a later offense carries up to two years in prison, a fine, or both.

Under 8 U.S.C. § 1326, a person who has been denied admission, excluded, deported, or removed, or who departed while an order of exclusion, deportation, or removal was outstanding, and who later enters, attempts to enter, or is found in the United States without the Attorney General’s express consent may be fined, imprisoned for not more than 2 years, or both, subject to the enhanced penalties in subsection (b). It applies to any alien who has been denied admission, excluded, deported, or removed, or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter enters, attempts to enter, or is at any time found in the United States, unless the Attorney General has expressly consented to the alien’s reapplying for admission. The base penalty is a fine, imprisonment for not more than 2 years, or both. It also covers a person who later enters, tries to enter, or is found in the United States without the required consent. The base maximum is two years.

Prior convictions push the maximum higher. The statute sets 10 years when removal followed three or more misdemeanors involving drugs or crimes against the person, or a felony other than an aggravated felony. It sets 20 years when removal followed an aggravated felony conviction.

A common mistake is assuming the old removal order can be argued again inside the criminal case. The person must show they exhausted available administrative remedies, were improperly deprived of judicial review, and that the order was fundamentally unfair.

Key Legal Elements Prosecutors Look At

Documents and dates often decide that match.

Next is whether the entry happened at a place or time not set by immigration officers, or whether the person eluded inspection.

In removal proceedings, the burden sits with the person. 8 U.S.C. § 1361 says the person must show the time, place, and manner of entry into the United States. If that burden is not met, the person is presumed to be in the United States in violation of law. Records of past encounters with immigration authorities matter here.

Criminal Charges Versus Immigration Consequences

A criminal case and a removal case are separate. A person can face both at the same time.

Removal proceedings have their own rules. Under 8 U.S.C. § 1229a, a person who does not attend may be ordered removed in absentia. The government must prove by clear, unequivocal, and convincing evidence that written notice was given and that the person is removable.

If the person was ordered removed in absentia and received oral notice of the consequences of missing court, certain relief is barred for 10 years after the final order. The exception is exceptional circumstances, as the statute defines them.

A crime after admission can also create deportability. 8 U.S.C. § 1227 makes a person deportable after conviction of a crime of domestic violence, stalking, or child abuse, child neglect, or child abandonment.

Waivers have limits too. 8 U.S.C. § 1182 bars waivers for murder or torture: no waiver under this subsection is provided to an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture. It also bars them, under this subsection, for a person who was previously admitted to the United States as a lawful permanent resident and who has been convicted of an aggravated felony since that admission, or who has not lawfully resided continuously in the United States for at least 7 years immediately before removal proceedings began.

Talking With AG Immigration Law P.A. About Your Situation

Reading about federal charges while a family member is in trouble is stressful. You don’t need to decode every section alone.

If your relative is held by immigration authorities, the ICE Online Detainee Locator System is the official tool for finding someone in ICE detention.

Whether a first entry or a later one changes the charge depends on the facts of the entry and the person’s record. AG Immigration Law P.A. focuses on removal defense, adjustment of status, family petitions, naturalization, removal of conditions on green cards, waivers, and BIA appeals. The firm serves immigrants across the United States. Adriana Gomez is the lawyer responsible for this page.

Routes to a green card, such as adjustment from another status, raise questions that are separate from criminal exposure. For the wider picture, see the removal defense overview.

Consultations with the firm are paid. If you’re weighing a charge against someone you love, reach out through the contact form, by phone, or on WhatsApp, and we’ll talk through their facts with you.

Frequently Asked Questions