Punishments, fine and pardon for entering the United States illegally
When a foreign person enters the United States illegally, they are committing a crime – in the form of a misdemeanor or a felony, depending on the case – and may suffer immigration, economic and legal consequences from that action.
What is considered an illegal entry into the United States?
In reality, according to immigration laws, several actions are considered an illegal entry into the United States, including:
- enter through any border point other than an official immigration control post.
- cross the border hidden in a vehicle that does go through immigration control
- traveling through an immigration post using a valid visa but obtained through fraud
- cross using false visa, passport, or residence card
- enter with another person’s document, such as your passport or any other.
What is the punishment and fine for crossing illegally once?
The first time you cross illegally into the United States, you commit a crime in the misdemeanor category, known in English as a misdemeanor.
If the migrant is caught, they can be sentenced to pay a financial fine and a possible prison sentence for 2 years.
Express deportation or ordinary deportation?
In addition, if a migrant who crosses illegally is caught trying or shortly after or near the border, they may be subject to immediate removal, also known as express deportation. In this case, the migrants receive punishment and cannot return to the US for five years.
On the other hand, migrants who manage to enter the country without being detained can be subsequently arrested. They can also be placed in regular removal proceedings, even if they don’t commit other crimes or have American children.
Can the migrant who illegally enters immigration fix the papers within the US?
When a migrant enters the US illegally, he is practically closing all the ways to regularize the situation from within the country through an adjustment of status. That is so because said person has become what is known as objectionable in the Immigration laws. It includes cases of migrants married in good faith to US citizens.
However, some ways to fix the immigration situation remain open. For example, asylum is requested before the year of entry.
Other possible solutions are U visas for victims of violence who meet strict requirements, VAWA for victims of domestic violence, or cases. Such as the T visa for human trafficking or the Immigrant Juvenile Program for minors under 21 who have been abused and abandoned. by their parents.
In addition, migrants who entered the US under the age of 16 and have approved a measure known as Deferred Action (DACA) are currently protected from deportation.
Family members of permanent residents and citizens who currently serve in the Army, Active Reserves, or honorably discharged veterans can also obtain protection from deportation and a work permit through the Parole in Place program.
Finally, in cases of open deportation proceedings against a migrant, one of the possible reliefs to stop it can always be requested if the requirements for approval are met.
Can you ask for forgiveness for illegal entry?
You cannot apologize for having entered the United States illegally. However, in some cases, a pardon could be requested to legally return to the country for related punishments, in some way, to said entry.
For example, for illegal presence in the country for more than 180 days in compliance with the law of punishment of three or 10 years and pardon for having received a deportation or removal order.
The requirements and procedure are different depending on whether you need to apply for a waiver as a preliminary step to apply for a nonimmigrant visa, such as a tourist visa or an immigrant visa to enter the United States and become a lawful permanent resident.
Illegal entry to the US 2 or more times and a permanent ban
The civil, criminal, and immigration consequences of entering the United States illegally for a second or more times are more severe than if you entered the United States only once.
And it is that the entry for the second time can be qualified as a crime with a felony category. In addition, the migrant can be punished with a monetary fine of between $50 and $250, which is multiplied by 2 if that migrant was previously punished with a penalty for illegal entry.
In addition, there may be a prison sentence, to be understood as follows:
People previously expelled or deported from the United States for national security reasons, for example, for belonging to gangs, will be fined and sentenced to prison for a maximum of 10 years. If you have more than one sentence, you must serve them successively; the accumulation of penalties is not allowed.
In addition, people expelled or deported from the US for 3 or more misdemeanors or 1 crime if these are related to drugs or crimes against people will be punished with a fine and imprisonment for a maximum of 10 years.
On the other hand, people deported for an aggravated crime can be punished with a fine and 20 years in prison. In addition, in these cases, the re-entry or attempted re-entry is considered an aggravated crime.
Finally, people deported for a non-violent reason can be punished for 10 years in prison.
Illegal re-entry after deportation: permanent ban
In two cases, the migrant is punished with the penalty of permanent prohibition to return to the US legally:
- When a person has spent more than 1 year illegally in the United States, all the time together or several times leaves and enters illegally.
- When a person has been deported from the United States and re-enters or attempts to re-enter illegally.
It means that the migrant will be deported in most cases and will practically never be able to enter the United States legally.
However, in rare cases, it may be possible to apply for and obtain a waiver to apply for a nonimmigrant visa or an immigrant visa if you qualify for one. However, it is always necessary to live a minimum of 10 years outside the United States before you can even request authorization to apply for the visa.
The VAWA exception to the permanent ban
Migrants with a permanent prohibition sentence and who have managed to cross illegally back into the US cannot fix their papers in the vast majority of cases. However, there are exceptions, such as some VAWA circumstances, for victims of domestic violence.
All these cases are complex, and it is advisable to have the advice of an immigration attorney with experience in these matters.
What is the penalty for entering legally with a visa but staying illegally?
Entering with a visa and illegally staying longer than the authorized time – visa overstay – is not a crime. However, it is an immigration violation and can lead to the deportation of the migrant.
In addition, in limited cases, they can fix their situation without leaving the US, such as asylum, U visa for victims of violence, or through adjustment of status due to marriage with a US citizen.
Key Points: Illegal Entry into the US
- Immigration Violation – Entering Legally but Overstaying Illegally
- Foul (misdemeanor): enter illegally 1 time
- A crime that can be qualified as a felony: enter 2 or more times
- Permanent Bar: Entering illegally after deportation
Exceptions to the punishment of 3 and 10 years for illegal presence in the US
The punishment law means that people who have been in the US illegally for between 180 and 384 consecutive days are barred from returning to the country for three years. The punishment increases to 10 years for those without legal immigration status for 385 continuous days or more.
However, the law allows important exceptions in which the days of irregular presence in the US are not considered for this punishment.
To understand punishment, it is convenient to begin by explaining its characteristics.
3/10 Year Punishment Requirements
All of the following circumstances must meet for the punishment to apply:
Continuous Unlawful Presence
For example, if a migrant was illegal for four months in a row, left the country, and, on a different occasion, spent another three months, they have a total of more than 180 days in an irregular situation. However, he does not apply the punishment because they are not days in a row.
It should note that discontinuous illegal stays for more than one year are computed for a different punishment: that of the permanent prohibition that occurs when an immigrant with an accumulated irregular presence of more than one year leaves the US and subsequently returns illegally.
April 1, 1997
The continued unlawful presence must be after that date when the IIRAIRA went into effect.
Illegal Entry or Not Departing on Time
Unlawful presence may occur because the border was crossed illegally or because the foreign person who entered lawfully did not exit on time, depending on the date of their I-94 or D/S. In the case of tourists who entered without a visa by belonging to a country in the Visa Waiver Program exceeded the authorized 90 days.
In the case of illegal entry into the United States, the immigration authorities may establish the date of access that they consider most likely to calculate the days of unlawful presence. Therefore, it is up to the migrant to prove that it is later if that is the case.
Outside the US
The punishment does not apply to migrants who are inside the country.
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Beginning of the Calculation of the Punishment
The 3- or 10-year term begins to run from the day the affected person leaves the US, either voluntarily or forcibly, as in deportation cases. However, going with advance parole – travel permit – is not considered to trigger the start of this punishment.
Consequence of Punishment
While the term of the punishment is being fulfilled, you cannot obtain any visa for the United States, nor of the nonimmigrant type, such as, for example, tourist, student, exchange, etc., nor of an immigrant to obtain a residence card, also known as a green card.
The only exception to the above would be to qualify for a waiver, also known as a pardon or leave, and get approved.
On the other hand, when the punishment period has already been completed, you can apply for any visa without the need to request a waiver previously. The visa will be approved if all the requirements are met. Otherwise, it will be denied but not because of the punishment, which has already been fulfilled, but for another reason.
5 Exceptions to the Punishment of 3 and 10 Years
The penalty does not apply, and, therefore, if they meet all the requirements, nonimmigrant visas, and immigrant visas to return to the US can be obtained by people in the following categories.
Under 18 years
Time spent illegally in the US before reaching the age of majority is not counted as unlawful presence.
Political Asylum Seekers
The time they spent in the US while fighting in good faith for recognition of asylum status before USCIS or in immigration court is not considered for the punishment, even if their case had not been approved and they left the US for it.
Boys Who Never Stayed More Than 180 Days
Boys with approved DACA who never stayed more than 180 days in a situation of accumulation of days as migrants without status. For example, Carlos Pérez entered the US illegally when he was 12 years old. At 17, he applied for and was granted DACA. He is currently 24 years old and has married his girlfriend, an American citizen.
Carlos must leave the United States to fix the papers because he entered illegally. Still, as he was first protected for being under 18 years of age and later by DACA, he has not accumulated days of illegal presence and, therefore, the punishment of the 3 years or even 10 years. Carlos can leave the US, go to the consulate for the interview and return in days or weeks with the immigrant visa stamped in his passport.
It should note that children who obtained DACA more than 180 days after their 18th birthday are not included in this exception and would be punished.
Finally, note that by the decision of the Trump government, children with approved DACA can continue to renew their permits. Still, new applications are not accepted, and it is no longer possible to travel outside the US under advance parole.
People are protected under the Family Unity Program, according to article 301 of the Immigration Act of 1990. It is considered that they did not add days of illegal presence during the period that their protection lasted.
Abused spouses and children in VAWA self-petition cases are considered not to have accrued days of unlawful presence if they can show a connection between the abuse and irregular immigration status in the US.
Avoid the 3/10 Year Punishment
Migrants in the United States in an illegal situation can, in very few cases, regularize their position through an adjustment of status. When they have a way to fix the papers, they are forced to leave the country and appear for an interview at a consulate to obtain an immigrant visa that allows them to return.
The problem is that when leaving the United States, the punishment of 3 and 10 years is activated, and the date of departure is the first day in the computation of its compliance.
Therefore, to avoid this punishment, it is essential for migrants in an irregular situation to know if they can take advantage of any exception that allows them to obtain a green card due to adjustment of status.
For example, the following:
Spouse, father, mother, unmarried child under 21 years of age of a US citizen, as long as they entered the country legally. This exception does not apply to those who entered illegally across the border.
Immediate family members of an active duty military or reservist under the program known as Parole in Place.
Migrants with Protection 245 (i) because they had a family or work petition registered in their name before 1998 or filed between January 14, 1998, and April 30, 2001. In the latter case, they must prove continued presence in the US USA since December 21, 2000
VAWA, for spouses, former spouses, and parents of US citizens and lawful permanent residents and children of citizens.
Registry, for migrants, present in the US continuously since January 1, 1972.
Cubans to whom the Adjustment Law applies and who must have entered the US legally.
In addition, migrants present in the United States illegally may be able to obtain, if they qualify, the following protections:
- T Visa, for severe cases of migrant trafficking.
- TPS, for migrants who are eligible for these temporary protections
- U visa, for victims of violence who collaborate with the authorities.
- Asylum: for migrants who are persecuted or fear persecution because of their race, nationality, religion, political opinion, or membership in a particular social group.
Fast Facts: Exceptions
- The unlawful presence in the US must be continuous and greater than 180 days to trigger the 3-year punishment and one year for the 10-year sentence.
- Time spent as a minor under 18 years of age, a boy with approved DACA, an asylum seeker, VAWA, and the Family Unity Program is not counted as unlawful presence.
- The deadline for compliance with the punishment begins to run on the day you leave the US.
- While the punishment is being served, neither nonimmigrant nor immigrant visas can obtain unless a waiver is qualified, applied for, and obtained.
- Once the punishment is fulfilled, you can request any visa you qualify for and meet all the requirements. You do not need to ask for a pardon for unlawful presence.
- Nationality Action Section §212(a)(9)(B)(i)(I)
- Nationality Act §212(a)(9)(B)(i)(II)
- Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996.
- [USC02] 8 USC 1182: Inadmissible Aliens , https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1182&num=0&edition=prelim.
Punishments, fine and pardon for entering the United States illegally
It is an informative article. It is not legal advice.