Is entering the US illegally a felony or a misdemeanor
Executive summary
Improper entry into the United States—commonly described as "entering the U.S. illegally"—is generally a federal misdemeanor on a first offense under 8 U.S.C. §1325, punishable by fines or up to six months' imprisonment [1] [2]. By contrast, unlawful reentry after removal and other entry-related statutes can be prosecuted as felonies under different sections of the immigration code (notably 8 U.S.C. §1326), and related crimes such as smuggling or harboring are felonies under other provisions [3] [4] [5].
1. What the statute actually says: misdemeanor for first improper entry, felony for reentry
Federal law defines "improper entry" in 8 U.S.C. §1325 and prescribes that a first commission of entering or attempting to enter at non‑designated places, eluding inspection, or using willfully false representations is punishable by a fine or imprisonment for not more than six months (a misdemeanor), with subsequent commissions carrying higher penalties up to two years [1] [2]. By contrast, the crime of unlawful reentry after deportation or removal—codified at 8 U.S.C. §1326—is treated as a felony in typical prosecutions and carries stiffer penalties, and the sentencing regime for reentry has been the locus of most immigration criminal prosecutions in recent decades [3] [4].
2. The legal ecosystem: civil immigration law vs. criminal prosecution
Many immigration violations are civil in nature, meaning administrative removal or deportation rather than criminal jail time, but Congress and prosecutors have long used narrow criminal statutes—principally §§1325 and 1326—to bring criminal charges in entry‑related cases, turning what is often a civil removal matter into a criminal prosecution in federal court [6] [7]. Advocacy groups, courts, and commentators note that while improper entry itself is commonly a misdemeanor, the interplay between civil removal orders and criminal reentry statutes has produced a heavy prosecutorial focus on reentry felonies that dominated federal caseloads in recent years [6] [3].
3. Exceptions, enhancements, and related felonies: when illegal entry becomes more than a misdemeanor
The statutory outline is not the whole story: subsequent offenses, entry after a removal order, or entries tied to prior criminal convictions can elevate penalties dramatically—reentry after certain criminal convictions can bring penalties of 10 or even 20 years depending on the underlying crimes—and separate statutes criminalizing smuggling, harboring, or inducing unlawful entry are felonies with their own severe sentences [3] [8] [5]. Civil‑criminal interactions also create prosecutorial leverage—prosecutors frequently charge both reentry (felony) and entry (misdemeanor) counts and may offer plea deals to the lesser count, affecting outcomes on the ground [3].
4. Political framing, enforcement practice, and hidden agendas
Public debate sometimes blurs these distinctions for political effect: describing all unauthorized border crossings as "felonies" flattens the statutory nuance and can serve agendas seeking harsher deterrence or expanded prosecutions, while criminal‑justice and immigrant‑rights advocates highlight the misdemeanor baseline and the harms of expanding felony prosecutions as evidence of discriminatory or punitive enforcement [9] [6]. Government guidance and DOJ manuals confirm §1325 and related sections are criminal statutes, but enforcement priorities and prosecutorial choices determine whether individuals face misdemeanor processing, felony reentry charges, or only civil removal [7] [3].
5. What reporting should leave the reader knowing and what it cannot say
Reporting should state clearly: improper entry is typically a misdemeanor for a first offense under §1325, while unlawful reentry after removal and associated offenses are felonies under different statutes [1] [3] [5]. What cannot be universally asserted from the available reporting is how any particular case will be charged or resolved—prosecutorial discretion, prior criminal history, the existence of removal orders, and shifting policy priorities all determine whether a person faces misdemeanor processing, felony indictment, or only civil immigration proceedings [6] [3].