Is unauthorized entry into the U.S. a misdemeanor or felony under federal law?

1. Law on the books: misdemeanor for first illegal entry, felony for illegal reentry

Congress criminalized “improper entry” in 8 U.S.C. §1325: any alien who enters or attempts to enter the United States at a place other than a designated port of entry, or who uses a false representation or eludes inspection, faces for a first commission a fine or imprisonment not more than six months (misdemeanor) and for subsequent commissions higher penalties up to two years ^[1]. By contrast, “illegal reentry” under 8 U.S.C. §1326 is a felony with a statutory maximum of two years in many ordinary cases and higher maximums when the person was removed after certain criminal convictions or for aggravated felonies ^{[2] [3]}.

2. The statutory gradations: when does a misdemeanor become a felony?

The shift from misdemeanor to felony is driven by context codified in federal law: a simple, first-time crossing without prior removal is generally prosecuted under §1325 as a misdemeanor (up to six months), while returning after a removal or having prior convictions triggers §1326 felony exposure—standard felony penalties reach up to two years, with statutory enhancements to 10 or 20 years where the prior removal followed certain misdemeanor or felony convictions ^{[1] [2] [3]}.

3. How prosecutors actually use these statutes in the field

The government commonly combines or chooses charges strategically: prosecutors frequently charge illegal reentry as a felony under §1326 and will sometimes add an §1325 misdemeanor count, then offer plea bargains to the misdemeanor to secure faster resolutions ^[2]. Reports and advocacy groups note that these entry-related prosecutions were among the most frequently used federal charges in recent years, though enforcement practices and charging patterns can change with policy shifts ^[2].

4. Aggravated circumstances and longer sentences

Statute and congressional materials make clear that prior convictions matter: a person removed after conviction of an aggravated felony faces far higher exposure (up to 20 years) if they reenter; similarly, removals following three or more specified misdemeanors or certain felonies can raise the maximum to 10 years ^{[2] [4]}. Recent legislative proposals and committee reports in 2025 seek to increase penalties further for repeat entrants, showing that Congress continues to consider tougher sanctions ^{[4] [5]}.

5. Conflicting public explanations and common misunderstandings

Many summaries correctly state the basic split—first illegal entry is a misdemeanor; reentry after removal is a felony—but some outlets simplify or overstate consequences by saying “illegal entry is a felony” without noting the statutory distinction between §1325 and §1326 or the role of prior removals and convictions ^{[6] [7]}. Legal guides emphasize escalating penalties for repeat offenders and aggravated cases; advocacy briefs note that entry can be “a misdemeanor or can be a felony, depending on the circumstances” ^{[8] [3]}.

6. What the available reporting does not say

Available sources do not mention uniform charging practices across every federal district, nor do they provide exhaustive, up-to-the-minute data on how often first-time entrants are criminally prosecuted versus subject to civil immigration processes; those patterns vary with policy and local practice and are not fully documented in the materials provided (not found in current reporting).

7. Bottom line—clear legal rule and important caveats

The clear federal rule: simple, first-time unauthorized entry generally is a misdemeanor under 8 U.S.C. §1325; unlawful reentry after removal is generally a felony under 8 U.S.C. §1326 with statutory enhancements for prior convictions and aggravated felonies ^{[1] [2]}. Caveats: prosecutorial discretion, plea bargaining, and legislative changes (including bills proposed in 2025) affect how those statutes are applied in practice ^{[2] [4] [5]}.