Being in the U.S. without authorization (undocumented) is generally a civil violation, leading to deportation, but it becomes a federal crime (misdemeanor or felony) if someone re-enters after being previously deported, or if they enter at a place/time not designated for entry. While unauthorized presence itself isn't a federal crime, other actions by undocumented individuals, such as committing theft or fraud, are crimes under both state and federal law, just like for any other person.
Civil vs. Criminal Violations
- Civil: Simply overstaying a visa or being present without authorization (without prior deportation) is a civil matter handled by immigration courts, leading to fines or removal (deportation).
- Criminal:
- Illegal Re-entry: Re-entering the U.S. after being formally removed is a federal offense, punishable by imprisonment (8 U.S.C. § 1326).
- Improper Entry: Entering at an undesignated time or place is also a federal violation (8 U.S.C. § 1325).
Key Distinction
- Presence Alone: Not a federal crime unless there's a prior removal order.
- Actions: Committing crimes like theft, assault, or drug offenses (regardless of immigration status) are criminal offenses.
In summary, while the status of being undocumented is usually civil, specific actions related to crossing the border or re-entering can be criminal, and committing other crimes while in the U.S. makes an individual subject to criminal prosecution like anyone else.
