What Is Illegal Immigration?

By Ilona Bray, J.D., University of Washington Law School
What does it mean to be "illegal?"

The term "illegal immigration" is a colloquial one, used more often by the media and the general public than by attorneys. That's because the actual picture of who spends time in the U.S. without proper documents is more complicated than one might at first imagine.

The classic scenario that the term "illegal immigrant" usually conjures up is of someone who crosses the border into the United States at an unguarded location, without a visa or a green card, and then remains. Government officials at the various ports of entry into the United States check documentation when visitors arrive, so anyone who doesn't have an entry document or valid right to admission can't get in.

However, significant numbers of people enter the U.S. with visas or entry documents, or on the Visa Waiver Program (VWP), and then fail to depart. They have no greater right to remain in the U.S. than a border crosser.

We'll use the term "undocumented immigrant" in this article to refer to anyone in the U.S. without valid papers or a right to remain.

Undocumented Immigrants Can Be Deported From the U.S.

If someone comes into the country unlawfully, or remains after a visa runs out, the first question is whether U.S. immigration authorities will find out. The common methods for them doing so are immigration raids on employers, tips from the public, review of lists of people arrested or jailed for criminal offenses, and because the immigrants themselves applied for an immigration benefit (such as adjustment of status or asylum) for which they were then denied.

The result of being discovered by U.S. immigration authorities may be deportation. In other words, the United States may, usually after conducting a hearing in immigration court, order and arrange for the person's removal.

During the court hearing, the person ordinarily has the right to present any relevant defenses. For example, the person may have married a U.S. citizen and thus qualify for a green card, or fear persecution in his or her home country and thus qualify for asylum. Or the person can ask for an exercise of "prosecutorial discretion" (discussed next).

Typically, removal from the U.S. is the sole punishment for entering or remaining in the U.S. unlawfully (as opposed to, say, fines or imprisonment). However, some people may be detained (held in jail) while awaiting their immigration court hearing. And a few people may have no right to a hearing at all, due to the existence of a previous order of deportation on their record.

Enforcement Priorities Set by U.S. Immigration Authorities

The U.S. government simply does not have the resources to investigate or deport every undocumented immigrant in the United States. Immigration enforcement authorities therefore operate under a set of priorities.

According to Immigration and Customs Enforcement (ICE), its top enforcement priorities include:

  • national security

  • border security

  • public safety, and

  • the integrity of the immigration system.

Even after catching an undocumented immigrant in the United States, ICE can, in light of that person being a low enforcement priority and having family and community ties here, exercise "prosecutorial discretion" and elect to drop further efforts at removal. This won’t give you any actual status in the U.S., but it will result in the closure of your immigration court case.

After Removal: Difficulty in Legally Returning to the U.S.

If the United States deports or "removes" a person to his or her home country, this can prevent the person from being able to get back into the country legally for a number of years. (The exact number depends on the facts of the person's case and the applicable law, but it's usually at least ten years.)

It's entirely possible that someone deported from the U.S. will never be approved for any type of visa with which to return. And if that person attempts to return unlawfully (that is, without a visa and not through a port of entry), and gets caught, immigration law permanently bars him or her from getting a green card or becoming a U.S. citizen.

If the person is successful in returning to the U.S. after deportation without getting caught at the border, but U.S. immigration enforcement authorities discover the person living in the United States later, the person will lose any right to appear before a judge in immigration court. The authorities can simply remove the person right away. Law enforcement authorities can also charge such a person with a crime, leading to fines or imprisonment before removal.

Alternative to Deportation: Voluntary Return to Home Country

If someone in deportation (removal) proceedings agrees to leave the United States and return to his or her home country voluntarily and independently (arranging for travel within a certain time frame), that person preserves the right to return to the U.S. legally, without waiting a period of years as a result of the deportation. This is known as "voluntary departure" or "voluntary return."

Not everyone qualifies for it, however. You will need to prove that you haven't been convicted of an aggravated felony and are not deportable for national security or public safety reasons. Then you will need to seek an act of discretion of the immigration judge. The judge may also consider any other crimes on your record, your immigration history, and your family and community ties in the United States.

And even though your deportation may not bar you from reentry, a separate ground of inadmissibility might. This is the ground of inadmissibility for unlawful presence in the United States. Specifically, if you were in the United States unlawfully for six months, you can't return for three years. If you were present unlawfully for a year or more, you must wait ten years before returning. A waiver of inadmissibility may be available, depending on the basis upon which you are applying for a green card or immigration benefit, and on your family ties in the United States.

Questions to Ask Your Immigration Lawyer

  • Can you arrange for a fingerprint check of my criminal record?

  • Have I violated any laws that would disqualify me from the immigration benefit I seek?

  • Do I have any defenses to the U.S. government’s efforts to deport me?

  • Am I eligible for a U.S. green card or other status allowing me to remain in the U.S.?

  • I think I’m inadmissible due to unlawful presence in the U.S.—can I apply for a waiver?

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