Order Code RS22413
March 29, 2006
CRS Report for Congress
Received through the CRS Web
Criminalizing Unlawful Presence:
Selected Issues
Michael John Garcia
Legislative Attorney
American Law Division
Summary
Several bills introduced in the 109th Congress would make the unauthorized
presence of aliens in the U.S. a criminal offense, including H.R. 4437, the Border
Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, introduced by
Representative James Sensenbrenner on December 6, 2005 and passed by the House as
amended on December 16, 2005, and S. 2454, the Securing America’s Borders Act,
introduced by Senator Bill Frist on March 16, 2006. The version of Chairman Arlen
Specter’s mark reported out of the Senate Judiciary Committee on March 27, 2006 does
not contain a provision criminalizing unlawful presence, though the bill had initially
contained such a provision. Although unlawful entry into the United States is both a
criminal offense and a ground for removal, unlawful presence is only a ground for
deportation and is not subject to criminal penalty, except when an alien is present in the
United States after having been removed. This report briefly discusses some of the
issues raised by criminalizing unlawful presence.
Immigration law contains both civil and criminal provisions. The removal of aliens,
however severe its consequences, has been “consistently classified as a civil rather than
a criminal procedure” by the courts.1 On the other hand, the Immigration and Nationality
Act (INA) contains several provisions that are unambiguously penal in nature, subjecting
offenders to imprisonment and/or fine under Title 18 of the U.S. Code.
The INA provides that certain acts may carry both civil and criminal consequences.
An alien who enters or attempts to enter the United States without authorization is not
only subject to removal or exclusion but is also, since 1929,2 subject to criminal
1 Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952). See also Fong Yue Ting v. United States,
149 U.S. 698, 730 (1893); Bugajewitz v. Adams, 228 U.S. 585, 591(1913).
2 Act of Mar. 4, 1929, § 2; 45 Stat. 1551.
Congressional Research Service ˜ The Library of Congress
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prosecution, with a first offense subject to six months’ imprisonment (a misdemeanor)
and any subsequent offense punishable by up to two years’ incarceration (a felony).3
Although an alien who unlawfully enters the United States is potentially subject to
removal and criminal prosecution, an alien found unlawfully present in the U.S. is
typically subject only to removal. Unlawful presence is only a criminal offense when an
alien is found in the United States after having been formally removed or after departing
the U.S. while a removal order was outstanding.4
The availability of both criminal sanctions and removal authority for immigration
violations does not mean that both tools will be used concomitantly, especially if one tool
can more easily be employed than the other. The vast majority of aliens apprehended by
the Border Patrol unlawfully entering the United States are either removed or (far more
often) permitted to voluntarily depart in lieu of removal without being criminally
prosecuted.5 This is largely because pursuing criminal charges in all cases would place a
heavy burden upon prosecutorial resources and detention facilities. Unlawful entry
prosecutions of aliens found in the interior of the U.S. are even rarer. Proving such cases
is difficult, as the government must present affirmative evidence that an alien unlawfully
entered the U.S. It cannot base its case solely upon the inference that the accused’s
unauthorized presence in the U.S. was likely due to him unlawfully entering the country;6
an inference that might not always be accurate (e.g., with respect to a lawfully admitted
alien who overstays his visa).
Proposals to Criminalize Unlawful Presence
A few proposals made in the 109th Congress would criminalize unlawful presence.
The version of the Chairman Arlen Specter’s mark reported out of the Senate Judiciary
Committee on March 27, 2006 does not contain a provision criminalizing unlawful
presence, though the bill had initially contained such a provision. However, § 203 of H.R.
4437, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005,
introduced by Representative James Sensenbrenner on December 6, 2005 and passed by
the House on December 16, 2005, would amend the INA to make both unlawful entry
and presence felonies subject to a year-and-a-day’s imprisonment. Heightened sentences
would be available for subsequent offenses, as well as for aliens previously convicted of
certain crimes. Section 206 of S. 2454, the Securing America’s Borders Act, introduced
by Senator Bill Frist on March 16, 2006, would also criminalize unlawful presence, but
a first-time offense would be a misdemeanor subject to six months’ imprisonment, while
subsequent offenses would be felonies subject to two years’ imprisonment. Heightened
penalties would also be made available in the case of aliens previously convicted of
3 INA § 275(a); 8 U.S.C. § 1325(a).
4 INA § 276; 8 U.S.C. § 1326.
5 In 2004, for example, the Border Patrol seized approximately 1.16 million aliens who
unlawfully entered or attempted to enter the United States from Mexico. Department of
Homeland Security, Office of Immigration Statistics, YEARBOOK OF IMMIGRATION STATISTICS:
2004 (2005), at Table 38. Only about 16,000 aliens (mostly serial offenders) were convicted of
the crime of unlawful entry. Id. at Table 50.
6 See, e.g., United States v. Doyle, 181 F. 2d 479 (2nd Cir. 1950).
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certain crimes. In addition, the offenses of unlawful entry and presence would be defined
to continue until the alien is discovered within the United States by immigration officers.
Both would also provide that a conviction for unlawful presence (as well as unlawful
entry), at least in certain circumstances, would have immigration consequences. Both §
201 of House-passed H.R. 4437 and § 203 of S. 2454 would designate unlawful presence,
entry, and reentry as “aggravated felonies” for purposes of the INA in cases where the
offender was sentenced to at least one year imprisonment. Conviction for an “aggravated
felony” makes an alien ineligible for many immigration benefits,7 and also makes an alien
permanently inadmissible upon removal.8 While first-time convictions for unlawful
presence and entry could potentially constitute aggravated felonies under House-passed
H.R. 4437, under S. 2454 only subsequent offenses could potentially be designated as
such.
Selected Issues
The criminalization of unlawful presence would raise a number of legal issues. The
nature of some of these issues would be shaped by the manner in which immigration and
law enforcement authorities apply an unlawful presence statute. Indeed, it is ultimately
up to the discretion of federal prosecutors as to whether to pursue cases against individual
aliens who may fall under the purview of a statute criminalizing unlawful presence.
Rights in a Criminal Prosecution Versus a Removal Hearing. Removal
hearings are not criminal proceedings. Whereas criminal cases are conducted through
judicial trial, removal cases are usually conducted through administrative proceedings
before the Executive Office of Immigration Review (EOIR) within the Department of
Justice. Though orders of removal may be reviewed by a federal court, statute and court
jurisprudence generally provide that such review is limited in scope and largely
deferential to the administrative authorities charged with implementing immigration
laws.9
The constitutional rights accorded to an alien in a removal hearing are generally less
than those to which the accused is entitled in a criminal proceeding. Among other things,
in a criminal case the accused often has a right to both a trial by jury and appointed
counsel, while an alien in a removal hearing does not (though an alien does possess the
right to obtain counsel at no expense of the Government).10
7 See generally CRS Report RL32480, Immigration Consequences of Criminal Activity, by
Michael John Garcia and Larry M. Eig.
8 INA § 212(a)(9)(A); 8 U.S.C. § 1182(a)(9)(A).
9 INA § 242, 8 U.S.C. § 1252. In cases where congressional intent is unclear or ambiguous,
federal courts give significant deference to immigration authorities’ interpretation of the laws
they administer, so long as such interpretations are “based on a permissible construction of the
[INA].” INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999).
10 INA § 240(b)(4); 8 U.S.C. § 1229a(b)(4) (describing rights of alien in general removal
proceedings). Arriving aliens in expedited removal proceedings have even fewer rights.
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Perhaps most notably, the burden of proof required to convict someone of a criminal
offense for unlawful presence — proof “beyond a reasonable doubt” — is greater than
that needed to order an alien removed. In removal proceedings for unlawful presence,
it is the alien’s burden to prove “by clear and convincing evidence, that...[he] is lawfully
present in the United States pursuant to a prior admission.”11 If the alien is able to
demonstrate that she or he was lawfully admitted into the United States, immigration
authorities must demonstrate by “clear and convincing evidence” that the alien thereafter
committed a deportable offense;12 a less onerous burden than proving guilt “beyond a
reasonable doubt” in a criminal prosecution.13
As previously noted, the availability of both criminal sanctions and removal
authority for an immigration violation does not mean that both tools will be used. For
reasons described above, it may often be simpler to remove an alien for unlawful presence
than to successfully prosecute him for such an offense. Whether this means that
prosecutors will forgo pursuing criminal charges against many aliens who may be
removed on account of unlawful presence, and selectively bring charges only against
certain categories of aliens (e.g., serial offenders, aliens suspected of unlawful activity)
remains to be seen.
Effects of Making Unlawful Presence a Felony Versus a Misdemeanor.
Proposals to criminalize unlawful presence differ as to whether to make it a misdemeanor
or felony offense. Misdemeanors are considered less serious crimes than felonies, and are
generally subject to a maximum sentence of imprisonment of a year or less, whereas
felonies are subject to greater penalties. A grand jury is usually required to issue an
indictment before a felony prosecution may proceed, whereas that would not be required
in the case of a misdemeanor prosecution for unlawful presence.14 Further, if unlawful
presence is made subject to more than six months’ imprisonment, as is proposed by
House-passed H.R. 4437, it would constitute a “serious crime” for which the accused
would have a right to a jury trial.15 In contrast, if unlawful presence is made subject to a
maximum of six months’ or less imprisonment, as proposed in S. 2454, the accused
would probably not have a right to a jury.16
These differences may influence law enforcement decisions as to how seriously to
pursue criminal charges against unlawfully present aliens. On the one hand, prosecutors
11 INA § 240(c)(2); 8 U.S.C. § 1229a(c)(2).
12 INA § 240(c)(3)(A); 8 U.S.C. § 1229a(c)(3)(A).
13 E.g., Allen v. Bowen, 657 F.Supp. 148, 152 (N.D.Ill. 1987) (“Proof beyond a reasonable doubt
is proof that a fact is almost certainly true, while clear and convincing evidence means simply
proof that a fact is highly probable.”).
14 “No person shall be held to answer for a capital, or otherwise infamous crime, unless on
presentment or indictment of a Grand Jury.” U.S. CONST. amend. V. Whereas felonies constitute
“infamous crimes,” misdemeanors generally do not. See, e.g., United States v. Purvis, 940 F.2d
1276, 1280 (9th Cir. 1991). It is the policy of the United States to accord persons having a right
to a jury trial the right to a grand jury, as well. 28 U.S.C. § 1861.
15 Blanton v. City of North Las Vegas, 489 U.S. 538, 542 (1989).
16 Id. Crimes punishable by six months or less might nevertheless trigger a right to a jury if
additional statutory penalties, such as heavy fines, are sufficiently severe.
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might be more willing to devote resources to the prosecution of unlawful presence
violations if such offenses were made subject to greater penalties. On the other hand, the
additional rights accorded to the accused in felony cases may impose a greater strain on
prosecutorial resources than in misdemeanor cases.
State and Local Law Enforcement Issues. The proper role of states and
localities in the enforcement of immigration laws is a matter of some debate. While state
and local law enforcement’s ability to enforce the INA’s civil provisions remains unclear,
there is broad agreement that these entities may apprehend persons for violating the INA’s
criminal provisions and briefly detain such persons pending their transfer to federal
custody, at least to the extent states and localities authorize such practices.17
If unlawful presence is criminalized, state and local law enforcement may play an
important role in assisting federal authorities in the apprehension of offenders. The
degree to which state and local law enforcement would assist the federal government in
apprehending aliens for criminal prosecution might be dependent on a number of factors.
Some states and localities may lack the resources to assist in the apprehension of
unlawfully present aliens. Community relations concerns may also cause states and
localities to prohibit law enforcement from asking persons about their immigration status
(i.e., sanctuary cities). State and local assistance may also be determined by the federal
government’s willingness to prosecute unlawfully present aliens who are seized by state
and local law enforcement. As previously discussed, federal prosecutors pursue criminal
charges against only a small percentage of aliens apprehended for unlawful entry, and it
is unclear whether they would be more willing to prosecute unlawful presence offenses.
Requisite Intent Necessary for Unlawful Presence to be a Criminal
Offense. Whereas some proposals criminalizing unlawful presence, such as S. 2454,
provide that an alien must “knowingly” be present in violation of applicable immigration
laws and regulations to be guilty of an offense, other proposals, including House-passed
H.R. 4437, do not contain such language. Some have questioned whether proposals that
do not specify a requisite intent for unlawful presence would permit some aliens to be
held criminally liable even if they had no reason to be aware that they had engaged in
unlawful activity (e.g., when a clerical error by immigration authorities causes an alien
to overstay his visa).
It seems unlikely that a court would interpret any of the proposals criminalizing
unlawful presence as imposing a scheme of strict liability. Courts have recognized that
the “existence of a mens rea [for criminal offenses] is the rule of, rather than the
exception to, the principles of Anglo-American criminal jurisprudence.”18 Accordingly,
courts have generally interpreted statutes criminalizing conduct as having a mens rea
requirement for liability, “even where the statutory definition did not in terms include
it.”19 Given this background, it seems likely that a reviewing court would interpret a
17 For background, see CRS Report RL32270, Enforcing Immigration Law: The Role of State and
Local Law Enforcement, by Lisa M. Seghetti, Stephen R. Vina, and Karma Ester.
18 United States v. United States Gypsum Co., 438 U.S. 422, 436 (1978).
19 Staples v. United States, 511 U.S. 600, 605-606 (1994) (quoting United States v. Balint, 258
(continued...)
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statute criminalizing unlawful presence as requiring an offense to be committed
knowingly, even if the statute does not expressly announce this requisite intent for
criminal liability.
Racial Profiling Issues. Another issue related to the criminalization of unlawful
presence concerns whether it might result in the harassment of certain racial and ethnic
groups by law enforcement. In the 1968 case of Terry v. Ohio, the Supreme Court held
that the Fourth Amendment permits a law enforcement officer to stop and briefly detain
a person when the officer reasonably suspects that the person has committed a crime.20
Reasonable suspicion may not be based on a mere hunch, but instead upon “specific
reasonable inferences which [the officer] is entitled to draw from the facts in light of his
experience.”21
On several occasions, courts have decided cases involving law enforcement
authorities stopping persons for suspected immigration violations on account of those
persons’ suspected Mexican ancestry. Supreme Court jurisprudence holds that race or
ethnicity cannot be the sole factor giving rise to a law enforcement stop for suspected
immigration violations, but that at least in cases near the U.S.-Mexican border, stops may
be partially based on race.22 Nevertheless, the Court has suggested that a different
conclusion might have been reached if stops based partially on Mexican ancestry occurred
in places farther removed from the U.S.-Mexican border.23 In 2000, the Ninth Circuit,
sitting en banc, ruled that the Border Patrol could not take into account Hispanic origin
when making stops in Southern California, concluding that in areas “in which the majority
— or even a substantial part — of the population is Hispanic,” as was the case in
Southern California, the probability that any given Hispanic person “is an alien, let alone
an illegal alien, is not high enough to make Hispanic appearance a relevant factor in the
reasonable suspicion calculus.”24
In sum, court jurisprudence indicates that law enforcement may not stop persons for
suspected immigration violations solely on account of such persons’ race or ethnicity, but
that at least in certain circumstances, suspicion may partially be based on such
considerations. Additional considerations, including population demographics, may also
affect the weight to which suspicions based on race or ethnicity may be permissibly given.
19 (...continued)
U.S. 250, 251-252).
20 392 U.S. 1 (1968).
21 Id. at 27.
22 Compare United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (ruling unconstitutional a
roving stop of a vehicle by the Border Patrol near the U.S.-Mexican border, when the stop was
based solely on the vehicle occupant’s apparent Mexican ancestry) with United States v.
Martinez-Fuerte, 428 U.S. 543 (1976) (permitting the stopping of persons at fixed inspection
checkpoints near the Mexican border when such stops were partially based on race).
23 Martin-Fuerte, 428 U.S. at n.17.
24 United States v. Montero-Camargo, 208 F.3d 1122, 1132 (9th Cir. 2000).