The Facts: Improper Entry vs. Unlawful Presence

 Posted on March 13, 2019 in Immigration

In today’s highly volatile political environment, it can be easy to encounter misinformation about immigrants and immigration law, but this can yield negative consequences, especially if you are an immigrant yourself. One of the most commonly confused issues nowadays is in discussing the difference between improper entry and unlawful presence in the country. One is a crime, while one is not, and misunderstandings on this score might imperil your ability to obtain immigration benefits in the future.

Unlawful Presence Is Not a Crime

In many situations, when the average person is complaining about “illegal immigrants,” they mean those who are present in the United States but are not authorized to be in the country. This is referred to as having or accumulating unlawful presence. It is important to understand that these people, and there are a significant amount of them, may possibly have committed crimes (for example, identity theft may occur when an undocumented person uses another person’s Social Security number so they can work) - but their simply being present in the U.S. is not one of them.

The U.S. Supreme Court in Arizona v. United States (2012) held explicitly that “as a general rule, it is not a crime for a removable alien to remain present in the United States.” The key wording, however, is “remain” present - the act of staying in the United States after entry, regardless of whether you knew you were deportable or not, is not a crime even though it may be unlawful (obviously, not every unlawful action is a crime). This means, however, that Arizona does not deal with the issue of improper or unlawful entry.

Unlawful Entry Is a Crime

Unlike unlawful presence, unlawful or improper entry into the United States is a crime, because it is an affirmative action, as opposed to passive action like merely living and working on a place, with no intent to break any law. Entering the United States without inspection (for example, coming into the country through the desert, or swimming across a river or lake) or via fraud is a crime - but it is merely a misdemeanor, punishable by a fine or up to 6 months in jail for a first offense, and two years for any future offenses. This is why so many lawsuits are pending over the current administration’s policy of detention for all - U.S. immigration law simply does not warrant such draconian measures in most situations.

It is important to keep in mind that you may be accruing unlawful presence without having entered the country unlawfully. If you entered the U.S. with a valid visa, or if you had Temporary Protected Status (TPS) or another immigration benefit and it expired, you have not entered without inspection - you have entered at an appropriate port and been admitted by U.S. immigration. If you overstay your visa, however, you are accruing unlawful presence because you ought to have departed - and while unlawful presence is not a crime, it can and does adversely affect any immigration benefit you might apply for in the future. If you have accrued too much unlawful presence, you are held to be deportable, and you may not reenter the country for between three and 10 years, if ever.

Contact a Chicagoland immigration Attorney

In this fevered political climate, it can be easy to make mistakes and misunderstand details about immigration. However, if you are unsure of your status or unsure whether you have committed a crime, those details matter. The skilled Chicago-area deportation defense lawyers at Mevorah & Giglio Law Offices can try to help answer your questions and suggest how best to proceed with your case. Call us today at 630-932-9100 for a free consultation.