Why some people face criminal charges for crossing the border

This is general information, not legal advice. Criminal and immigration cases are separate, and both need a lawyer.

Is it a crime to be in the U.S. without papers?

No, not by itself. The Supreme Court said in Arizona v. United States (2012) that, as a general rule, it is not a crime for a removable person to remain in the United States.

Being undocumented is usually a civil matter, handled in immigration court, where the question is whether you can stay. Certain acts are federal crimes, though, and the main ones are about how a person entered.

What is "improper entry"?

Under 8 U.S.C. 1325(a), it is a crime for a non citizen to:

1. enter or try to enter at a time or place other than one set by immigration officers, like crossing between ports of entry,
2. avoid inspection by immigration officers, or
3. enter or try to enter by a willfully false or misleading statement, or by hiding an important fact.

Penalties: up to 6 months in jail, a fine, or both for a first offense. For a later offense, up to 2 years, a fine, or both.

There is also a civil fine, under 1325(b), of $50 to $250 for each entry or attempt when a person is caught entering between ports, doubled for someone fined before. It can come on top of a criminal case. See I got a civil fine from immigration. What does it mean?

What is "illegal reentry"?

Under 8 U.S.C. 1326, it is a felony for a person who was deported, removed, excluded or denied admission, or who left while a removal order was in place, to then enter, try to enter, or be found anywhere in the U.S., without the government's permission to reapply.

Penalties:

• up to 2 years in prison, in general,
• up to 10 years if the removal came after three or more misdemeanors involving drugs or crimes against a person, or after a felony, and
• up to 20 years if the removal came after an aggravated felony.

The words "found in" matter. A person can be charged when ICE finds them, even years after they came back.

Courts have upheld this law. In 2023, the Ninth Circuit, which covers California, rejected an argument that 1326 is unconstitutional because of discrimination in its history, in United States v. Carrillo-Lopez.

Who actually gets charged?

Federal prosecutors decide. Most people who crossed without inspection are never charged with a crime. Prosecutions focus heavily on people caught at the border and on people found inside the country after a prior deportation.

Here is what the U.S. Sentencing Commission's fiscal year 2025 data shows for people sentenced in federal court:

• 22,743 sentenced cases involved immigration offenses, and about 80% of those involved illegal reentry,
• illegal reentry cases rose 45% from the year before and 57% since fiscal year 2021,
• the average illegal reentry sentence was 10 months, and 97% were sentenced to prison,
• 49% had little or no prior criminal history, and
• most cases were in border districts, led by the Western District of Texas.

This fact sheet does not break out Northern California, and we found no other official 2025 or 2026 count for the region.

Can I be charged years later?

It depends on the crime.

• Improper entry (1325). The general federal deadline to charge most crimes is 5 years after the offense, under 18 U.S.C. 3282. How that applies to an entry long ago is a question to ask a lawyer.
• Illegal reentry (1326). Because a person can be charged when "found in" the U.S., the clock works differently. Many people are charged long after they returned.

How does a conviction affect my immigration case?

A criminal conviction adds to, and does not replace, the immigration case.

• Prison first, then ICE. People usually serve the federal sentence and are then handed to ICE for removal. For someone who came back after a removal, ICE can reinstate the old removal order, and the person can't apply for most relief, under 8 U.S.C. 1231(a)(5).
• A reentry after a removal can lead to a permanent bar. Someone who was ordered removed, or who was here unlawfully for more than a year in total, and who then enters or tries to enter without being admitted, is inadmissible under 8 U.S.C. 1182(a)(9)(C). They generally must wait outside the U.S. for 10 years before even asking permission to return.
• Some reentry convictions are aggravated felonies. A 1325 or 1326 offense committed by someone who was previously deported after an aggravated felony is itself an aggravated felony, under 8 U.S.C. 1101(a)(43)(O). See What is an aggravated felony?
• Fear of return still matters. People can still ask for some forms of protection. Under 8 U.S.C. 1158(a)(1), a person may apply for asylum whether or not they arrived at a port of entry, though many bars and new limits apply. Tell the lawyer right away about any fear of going back.

What other federal crimes are about status?

A few more come up often:

• Failing to register. Willful failure to register when required is a misdemeanor, up to 6 months, under 8 U.S.C. 1306(a). The 2025 registration rule made this matter for many people. See Do I have to register with the government under the 2025 rule?
• Not reporting a new address. Up to a $200 fine or 30 days, under 8 U.S.C. 1306(b), unless the failure was reasonably excusable or not willful.
• Smuggling or harboring others, under 8 U.S.C. 1324. See Helping a relative cross the border.

Does Texas or California have its own entry crime?

California: no. California does not make entry or presence a state crime.

Texas: yes. Texas SB 4 created state crimes for illegal entry and reentry. News and advocacy groups report it has been in effect since a federal appeals court order on May 29, 2026, while the challenge continues. If you travel through Texas, read Traveling to Texas: what California families should know first.

What should a family do if someone is charged?

1. Find out which court. A federal criminal case is in U.S. District Court, not immigration court.
2. Make sure they have a lawyer. In a felony case, a person who can't afford a lawyer gets one appointed, under 18 U.S.C. 3006A. That is often the Federal Public Defender.
3. Give the lawyer the history. Dates of entry, any past removal or voluntary return, any criminal record, family here, and any fear of returning.
4. Ask about immigration effects of any plea. Defense lawyers must advise non citizens about deportation risk, the Supreme Court held in Padilla v. Kentucky.
5. Plan for ICE after the sentence. Find an immigration lawyer too. See When a loved one is detained: the complete guide.

What does this look like in real life?

Example (fictional). Mario was deported in 2015 after a DUI and came back in 2017. In 2026, ICE arrests him at home. Federal prosecutors charge him with illegal reentry, "found in" the U.S. A federal public defender represents him. He gets a short prison sentence, then ICE reinstates his old removal order. His lawyer screens him for withholding of removal because he fears harm in his home country.

Questions people ask

I crossed once without papers. Will I be arrested for a crime? Most people in that situation are never charged. The bigger risk for most people is the civil immigration case. Still, get a legal screening so you know your options.

Can my immigration lawyer handle the criminal case? Usually not. You need a criminal defense lawyer for the criminal case and an immigration lawyer for the immigration case. They should talk to each other.

Is the criminal case public? Yes. Federal criminal cases are generally public records.

Can a conviction be erased later? Federal convictions are very hard to clear. That is why getting a good lawyer at the start matters so much.

Who can help?

Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

• In a federal criminal case, anywhere in the U.S.: ask the court for appointed counsel at the first appearance. That is often the Federal Public Defender for that district.
• For the immigration side, anywhere in the U.S.: the EOIR list of pro bono legal service providers and ImmigrationLawHelp.org.
• Anywhere in California: the California Department of Social Services provider map, or call (916) 651-8017.
• San Mateo and Santa Clara county residents with low income: Community Legal Services in East Palo Alto (CLSEPA), (650) 326-6440, which has a removal defense practice.
• More help: Arrests, records and immigration: the complete guide

The way someone came here does not define who they are. If a charge comes, get two lawyers, tell them everything, and keep your family's plan ready.