Immigration Crimes: Improper Entry and Reentry
Congressional research reportAug 30, 2023
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Immigration Crimes: Improper Entry and
Reentry
August 30, 2023
Congressional Research Service
https://crsreports.congress.gov
R47667
SUMMARY
Immigration Crimes: Improper Entry and
Reentry
R47667
August 30, 2023
Kelsey Y. Santamaria
Legislative Attorney
Congress has established a comprehensive framework governing the admission and removal of
aliens (a term defined in the Immigration and Nationality Act [INA] as “any person not a citizen
or national of the United States”). These rules are buttressed by a multifaceted enforcement
scheme with civil and criminal components. Aliens who have engaged in certain kinds of
proscribed conduct may be denied admission to the country or, if present in the United States,
face removal through procedures that are civil in nature. Congress has also established criminal penalties for certain activities
that undermine immigration rules and requirements, and offenders could potentially be subject to imprisonment and criminal
fine. In addition to being subject to removal, aliens who improperly enter the United States or reenter the United States after
removal (or attempt to do either) may face federal criminal prosecution under 8 U.S.C. § 1325(a) (improper entry) and 8
U.S.C. § 1326(a) (reentry of removed aliens).
An alien may be found culpable of improper entry under Section 1325(a) through several avenues: entering or attempting to
enter the United States at a time or place other than as designated by immigration authorities (e.g., a surreptitious border
crossing between ports of entry); eluding inspection or examination by immigration authorities; or entering or attempting to
enter the United States by a willfully false or misleading misrepresentation or willful concealment of a material fact. A firsttime unlawful entry offense is typically a misdemeanor subject to a fine or imprisonment, while subsequent offenses after an
initial improper entry conviction are felonies subject to a fine or imprisonment not more than two years.
Section 1326(a) makes it a felony for an alien to reenter or attempt to reenter, or at any time be found in, the United States
without authorization after the alien has been “denied admission, excluded, deported, or removed or has departed the United
States while an order of exclusion, deportation, or removal is outstanding.” Violations can result in criminal penalties of a
term of imprisonment or a fine (or both).
Federal courts have disagreed over whether entry under Sections 1325(a) and 1326(a) requires an alien to enter the United
States “free from official restraint” and what it means to enter free from official restraint. Likewise, Section 1326(a)’s “found
in” provision raises some distinct legal issues that might be of interest to lawmakers, such as what is the meaning of “found
in” the United States, whether the statute is applicable to previously removed aliens who enter the United States lawfully but
remain in violation of law, and the application of the pertinent statute of limitations. Another potential area of interest is the
intersection of the principles of asylum and the imposition of criminal liability for improper entry and reentry. Congress
might wish to consider whether those who unlawfully enter the United States but intend to seek asylum should be prosecuted
for unlawful entry or reentry.
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Immigration Crimes: Improper Entry and Reentry
Contents
Introduction ..................................................................................................................................... 1
Key Concepts .................................................................................................................................. 2
Criminal Versus Civil Enforcement of Immigration Laws........................................................ 2
“Entry” for Purposes of Improper Entry and Reentry Offenses ................................................ 4
Prohibited Conduct .......................................................................................................................... 5
Improper Entry, 8 U.S.C § 1325(a) ........................................................................................... 5
Entry or Attempted Entry into the United States at a Time or Place Other Than
Designated by Immigration Officers, 8 U.S.C. § 1325(a)(1) ........................................... 6
Eluding Examination or Inspection, 8 U.S.C. § 1325(a)(2) .............................................. 12
Entry by Misrepresentation, 8 U.S.C. § 1325(a)(3) .......................................................... 13
Penalties, 8 U.S.C. § 1325(a) ............................................................................................ 14
Illegal Reentry, 8 U.S.C. § 1326(a) ......................................................................................... 15
Establishing Entry ............................................................................................................. 16
Mens Rea........................................................................................................................... 16
Physical Departure After the Issuance of an Order of Removal ....................................... 18
Remaining Unlawfully After a Lawful Entry ................................................................... 18
Voluntary Presentation to Immigration Officers ............................................................... 19
Statute of Limitations........................................................................................................ 20
Challenging the Underlying Order of Removal ................................................................ 22
Vagueness Challenges ....................................................................................................... 24
Penalties, 8 U.S.C. § 1326(a) ............................................................................................ 25
Select Considerations Regarding Asylum ..................................................................................... 25
Federal Statute .................................................................................................................. 26
International Treaty Obligations ....................................................................................... 26
Considerations for Congress.......................................................................................................... 28
Entry ........................................................................................................................................ 28
“Found” in the United States................................................................................................... 28
Asylum .................................................................................................................................... 29
Penalties .................................................................................................................................. 30
Tables
Table 1. Section 1326(a) Penalties ................................................................................................ 25
Contacts
Author Information........................................................................................................................ 31
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Immigration Crimes: Improper Entry and Reentry
Introduction
Federal criminal statutes occupy a prominent role in the comprehensive framework established by
Congress to regulate the admission and removal of aliens. According to the U.S. Sentencing
Commission, immigration-related criminal cases made up a significant portion of the federal
criminal caseload for which a defendant was sentenced in FY2021, accounting for 29.6% of all
reported cases.1
Improper entry and reentry have been criminal offenses since the Immigration Act of 1929.2 The
1929 Act imposed criminal sanctions on (1) aliens who entered the United States at places other
than those designated by immigration officials (i.e., not at ports of entry) and (2) aliens who
reentered the United States after a previous deportation.3 The Immigration and Nationality Act
(INA), enacted in 1952, carried over these criminal provisions,4 and these offenses have been
further amended over the years.5
Under the current statutory scheme, aliens who improperly enter the United States or reenter the
United States after removal, or attempt to do so, may face criminal prosecution.6 Although
prosecutors might also utilize other federal statutes targeting conduct related to unlawful entry or
reentry—such as using a fraudulent visa or other immigration documents—conduct constituting
improper entry or reentry are generally prosecuted under two federal statutes:
•
•
8 U.S.C. § 1325(a): Improper entry by alien
8 U.S.C. § 1326(a): Reentry of removed aliens
Both statutes contain multiple avenues through which a prosecutor may obtain a conviction
against an alien for improper entry or reentry. Under 8 U.S.C. § 1325(a), criminal liability
attaches when an alien (1) enters or attempts to unlawfully enter the United States at a place other
than a designated port of entry, (2) eludes examination and inspection by immigration officers, or
(3) attempts to enter or enters the United States by a willfully false or misleading representation
or the willful concealment of a material fact. An alien who has previously been removed or
voluntarily departed under an outstanding removal order may be convicted for violating 8 U.S.C.
§ 1326(a) after reentering or attempting to reenter the United States or after being “found in” the
United States without authorization to enter.
1 See U.S. SENTENCING COMMISSION, FISCAL YEAR 2021 OVERVIEW OF FEDERAL CRIMINAL CASES 18 (2022). This is a
decrease from prior years with drug offenses overtaking immigration offenses as the most common federal crime for
which a defendant was sentenced. Id. at 5. Overall, immigration offenses cases decreased by 36.2 % from the year
before. Id. Most of the decrease in immigration cases occurred in cases involving unlawful reentry. Id. at 18.
2 Immigration Act of 1929, Pub. L. No. 70-1018 §§ 1, 2, 45 Stat. 1551 (establishing reentry after deportation as a
felony and entry at places other than place designated by immigration officials as a misdemeanor); see also United
States v. Corrales-Vazquez, 931 F.3d 944, 947 (9th Cir. 2019) (providing brief overview of history of improper entry
offense).
3 See Immigration Act of 1929, supra note 2, §§ 1, 2.
4 Compare Immigration and Nationality Act, Pub. L. No. 82-414, §§ 275, 276 with Immigration Act of 1929, Pub. L.
No. 70-1018 §§ 1, 2.
5 See, e.g., Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat.
3009-618 § 105 (adding civil penalties for improper entry); Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat.
4978 §§ 121(b)(3), § 543(b)(2) (amending the unlawful entry and reentry statutes to include attempted offenses).
6 8 U.S.C. §§ 1325(a), 1326(a); cf. United States v. Rizo-Rizo, 16 F.4th 1292, 1296–97 (9th Cir. 2021) (noting that the
criminal penalty for unlawful entry “was enacted to control unlawful immigration”), cert. denied, 143 S. Ct. 120
(2022).
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These statutes do not punish entries or reentries solely because an individual is determined to be
inadmissible under the INA.7 Rather, these criminal provisions punish improper entry and reentry
based on the manner and circumstances surrounding an alien’s entry into the United States.8 In
addition to criminal penalties of a fine or a term of imprisonment, aliens might also be subject to
civil fines and face immigration consequences, including potential removal from the United
States.9
This report provides a legal overview of improper entry and reentry offenses located in 8 U.S.C.
§§ 1325(a) and 1326(a), first discussing relevant key concepts related to and underlying both
offenses and then examining the prohibited conduct under both statutes and select court
challenges. It concludes by identifying pertinent legal considerations for Congress.
Key Concepts
This section summarizes key immigration law concepts that are relevant to understanding and
analyzing the criminal offenses of improper entry by aliens and reentry of removed aliens.
Criminal Versus Civil Enforcement of Immigration Laws
The INA provides a comprehensive framework regulating the admission, presence, and removal
of aliens. These rules are buttressed by a multifaceted enforcement scheme. Aliens who engage in
certain kinds of proscribed conduct may be denied admission to the country or, if present in the
United States, face removal.10 Alien removal and associated administrative processes are civil in
nature.11 In addition, citizens and aliens alike may face civil fines for certain conduct
undermining immigration rules.12
Congress has also established criminal penalties for activities that undermine immigration rules
and requirements. Some offenses carry relatively minor misdemeanor penalties,13 while others
constitute felonies potentially punishable by lengthy prison terms (and, in a few cases involving
7 See infra discussion pp. 4–5 “Error! Reference source not found.”.
8 See 8 U.S.C. §§ 1325(a) (imposing criminal penalties for entering the United States at an improper time or place,
avoiding examination or inspection, and misrepresentations and concealment of facts); 1326(a) (penalizing previously
removed aliens who enter or attempt to enter, or are found in, the United States).
9 See e.g., id. § 1182(a)(6)(A)(i) (removable as an “alien present in the United States ... who arrives in the United States
at any time or place other than as designated by the Attorney General”), (7)(B)(i) & (9)(A)(i)-(ii).
10 Id. §§ 1182(a) (setting forth the grounds for denying admission into the United States, and for removing an
unadmitted alien from the country); 1227(a) (providing grounds for the removal of aliens who had been admitted into
the United States).
11 Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (“We have long recognized that deportation is a particularly severe
‘penalty,’ but it is not, in a strict sense, a criminal sanction.”) (internal citations omitted); INS v. Lopez-Mendoza, 468
U.S. 1032, 1038-39 (1984) (“A deportation proceeding is a purely civil action to determine eligibility to remain in this
country, not to punish an unlawful entry.... The purpose of deportation is not to punish past transgressions but rather to
put an end to a continuing violation of the immigration laws.”).
12 See, e.g., 8 U.S.C. §§ 1325(b) (civil penalties for unlawful alien entry); 1229c(d) (civil fines for aliens who agree to
voluntarily depart the United States in lieu of removal and fail to do so); 1323(b) (civil fines for unlawfully bringing
aliens into the United States who lack a required passport and unexpired visa); 1324a(e)(4) (civil penalties related to the
hiring or recruitment of aliens who lack authorization for employment); 1324c(d)(3) (civil penalties for immigrationrelated document fraud).
13 See, e.g., id. §§ 1325(a) (providing that a first-time unlawful entry offense is a misdemeanor subject to a fine and/or
imprisonment for no more than six months).
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aggravating circumstances, life imprisonment or death).14 While Congress has enacted numerous
criminal statutes that address immigration-related conduct, most fall into three overarching and
overlapping categories: (1) offenses related to unlawful alien entry, (2) offenses related to an
alien’s unlawful presence (though unlawful presence is not itself a per se crime15), and (3)
immigration-related fraud.16
In many cases, conduct that makes an alien removable might also result in criminal sanctions. For
example, an alien apprehended shortly after surreptitiously entering the United States between
points of entry is not only subject to removal by immigration authorities17 but might also be
referred to federal prosecutors to face criminal penalties for the offense of improper entry.18
Decisions as to whether a removable alien in immigration authorities’ custody will be referred to
criminal law enforcement authorities may depend on a number of factors, including the nature of
the offense, prosecutorial resources, and enforcement priorities.19
In recent years, most immigration-related prosecutions have occurred in federal district courts
along the U.S.-Mexico border, with improper entry under Section 1325(a) and improper reentry
under Section 1326(a) being among the most frequently prosecuted immigration-related crimes.20
As a result, caselaw that has developed in the Fifth, Ninth, and Tenth Circuits—the judicial
circuits where those federal district courts are located—has proven particularly important to the
interpretation and application of the two criminal statutes.
Select CRS Products
•
CRS Legal Sidebar LSB10150, Immigration Laws Regulating the Admission and Exclusion of Aliens at the Border, by
Hillel R. Smith
•
CRS Report R43892, Alien Removals and Returns: Overview and Trends, by Audrey Singer
•
CRS Report R47077, U.S. Immigration Courts and the Pending Cases Backlog, by Holly Straut-Eppsteiner
•
CRS In Focus IF11536, Formal Removal Proceedings: An Introduction, by Hillel R. Smith
•
CRS In Focus IF11410, Immigration-Related Criminal Offenses, by Kelsey Y. Santamaria
14 See, e.g., id. §§ 1324(a)(1)(B)(iv) (establishing that certain violations of the alien smuggling and harboring statute
resulting in the death of a person may be punished by death or imprisonment for any terms of years or life
imprisonment); 1326(b) (providing that a person convicted of unlawful reentry after having previously been convicted
of an aggravated felony may be punished by a fine and/or imprisonment for up to twenty years).
15 See Arizona v. United States, 567 U.S. 367, 407 (2012) (“As a general rule, it is not a crime for a removable alien to
remain in the United States.”).
16 See CRS In Focus IF11410, Immigration-Related Criminal Offenses, by Kelsey Y. Santamaria.
17 8 U.S.C. § 1182(a)(6)(A)(i), (7)(B)(i) & (9)(A)(i)-(ii).
18 Id. § 1325(a)(1) (making it an offense to enter or attempt “to enter the United States at any time or place other than as
designated by immigration officers”).
19 See U.S. GOV’T ACCOUNTABILITY OFF., GAO-20-172, IMMIGRATION ENFORCEMENT: IMMIGRATION-RELATED
PROSECUTIONS INCREASED FROM 2017-2018 IN RESPONSE TO U.S. ATTORNEY GENERAL’S DIRECTION 21 (2019)
[hereinafter GAO REPORT] (discussing considerations informing an uptick in improper entry prosecutions by the
Department of Justice in FY2018 and reporting that agency officials indicated that “practices for improper entry cases
may change over time, depending on the priorities of various stakeholders in the federal criminal process, physical
space limitations, or availability of resources such as interpreters, among other reasons”).
20 See, e.g., U.S. SENTENCING COMMISSION, supra note 1, at 3 (noting that five judicial districts along the U.S.-Mexico
land border accounted for a disproportionate number of all individual offenders sentenced in FY2020, and these higher
numbers were “largely driven by immigration cases”); GAO REPORT, supra note 19, at 6 (estimating that from FY2014
through FY2018, “more than 90 percent … of immigration-related offenses took place in the five southwest border
districts,” and “improper reentry, illegal reentry, and alien smuggling charges comprise[d] … approximately 99 percent
… of immigration-related prosecutions”).
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“Entry” for Purposes of Improper Entry and Reentry Offenses
Sections 1325(a) and 1326 each make it a crime for an alien to enter or attempt to enter the
United States in a variety of manners.21
Before the passage of the INA in 1952, courts interpreted entry to mean that the alien must have
traveled from a foreign location to the United States. In the 1929 decision United States ex. rel.
Claussen v. Day, the Supreme Court considered the meaning of entry under the Immigration Act
of 1917.22 The Court held that a Danish national had entered the United States for purposes of the
Act when he arrived at a seaport in Boston following a trip to South America, even though he had
been in New York before his trip to South America.23 The Court explained:
The word ‘entry’ by its own force implies a coming from outside. The context shows that
in order that there be an entry within the meaning of the act there must be an arrival from
some foreign port or place. There is no such entry where one goes to sea on board an
American vessel from a port of the United States and returns to the same or another port of
this country without having been in any foreign port or place. 24
Congress initially codified this meaning of entry when it enacted the INA in 1952, expressly
defining the term to mean “any coming of an alien into the United States, from a foreign port or
place or from an outlying possession, whether voluntarily or otherwise.... ”25 However, with the
enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 199626
(IIRIRA), the new term admission, discussed below, was introduced and displaced the former
definition of entry in the INA.27 Nevertheless, Sections 1325 and 1326 continue to address
improper physical “entry” or “reentry” into the United States, with the term’s meaning elucidated
through judicial interpretation.28
In the 2011 case United States v. Young Jun Li, the Ninth Circuit addressed the meaning of entry
in the Section 1325(a) context.29 There, two aliens were convicted of improper entry by
attempting to travel by boat from Saipan in the Commonwealth of the Northern Mariana Islands
to Guam.30 The Ninth Circuit reversed their convictions on the basis that an alien traveling from
one part of the United States to another does not enter the United States simply because he
traveled through international waters during his trip.31 Although Claussen and Yong Jun Li
involved an aspect of travel through international waters, both cases illustrate the principle that
21 See id. §§ 1325(a), 1326(a).
22 United States ex. rel. Claussen v. Day, 279 U.S. 398, 401 (1929).
23 Id.
24 Id.
25 Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 § 101(a)(13).
26 The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Enacted as Division C of the
Consolidated Appropriations Act of 1997), Pub. L. 104-208, 110 Stat. 3009 [hereinafter IIRIRA].
27 IIRIRA §§ 301 (defining “admission”), 308(f)(1) (substituting “admission” for “entry” “admission” into various
parts of the INA); see also Hing Sum v. Holder, 602 F.3d 1092, 1099-1101 (9th Cir. 2010) (discussing the adoption of
“admission” in IIRIRA).
28 See United States v. Yong Jun Li, 643 F.3d 1183, 1188 (9th Cir. 2011) (explaining that Section 1325(a) relies on
entry, noting that the judicial interpretation of entry continues to control); United States v. Gonzalez-Torres, 309 F.3d
594, 598 (9th Cir. 2002) (interpreting, in a post-IIRIRA case, the term enter in Section 1325 by relying on judicial
understanding of the term stretching back to 1908).
29 United States v. Yong Jun Li, 643 F.3d 1183, 1186–88 (9th Cir. 2011).
30 Id. at 1185.
31 Id. at 1188.
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courts will consider whether the accused traveled to the United States from a foreign place in
order to have made an entry into the United States.32
A Note About the Term Admission
The concept of admission is central to many critical aspects of immigration law, but it is distinct from the concept
of entry. An alien who arrives at a port of entry and presents himself or herself for inspection is an applicant for
admission.33 The INA defines the terms admission or admitted as “with respect to an alien, the lawful entry of the
alien into the United States after inspection and authorization by an immigration officers.” 34 As a general matter, if
an alien has been admitted into the United States, that person is subject to being found removable under 8 U.S.C.
§ 1227 rather than being found inadmissible to the United States.35
In most cases, an alien who physically enters the United States without being admitted into the country is subject
to removal and, perhaps, criminal sanction for unlawful entry. However, not every alien authorized by the federal
government to physically enter and remain in the United States has been “admitted” into the country for purposes
of the INA. For instance, an alien granted parole to enter and remain in the United States for urgent humanitarian
or significant public benefit reasons is still treated as an applicant for admission for immigration purposes.36
Prohibited Conduct
Improper Entry, 8 U.S.C § 1325(a)
Section 1325(a) makes it a crime for an alien to enter or attempt to enter the United States in an
improper manner. The statutory language provides that:
Any alien who (1) enters or attempts to enter the United States at any time or place other
than as designated by immigration officers, or (2) eludes examination or inspection by
immigration officers, or (3) attempts to enter or obtains entry to the United States by a
willfully false or misleading representation or the willful concealment of a material fact,
shall, for the first commission of any such offense, be fined under Title 18 or imprisoned
not more than 6 months, or both, and, for a subsequent commission of any such offense,
be fined under Title 18, or imprisoned not more than 2 years, or both. 37
32 Cf. Torres v. Barr, 976 F.3d 918, 924 (9th Cir. 2020) (stating in the context of defining admission as a “lawful entry,”
explaining that “although the INA does not currently define the term ‘entry,’ we have long understood this term to refer
to ‘coming from outside’ into the United States.”); Tellez v. Lynch, 839 F.3d 1175, 1178 (9th Cir. 2016) (stating, in the
context of the reinstatement of orders of removal for unlawfully reentering the United States, that the petitioner
“entered the country when she left Mexico and came into the sovereign territory of the United States at the San Ysidro
border-crossing station.”).
33 8 U.S.C. § 1101(a)(4) (“The term ‘application for admission’ has reference to the application for admission into the
United States and not to the application for the issuance of an immigrant or nonimmigrant visa.”).
34 Id. § 1101(a)(13)(A).
35 See 8 U.S.C. § 1227(a) (“Any alien ... in and admitted to the United States shall, upon the order of the Attorney
General, be removed if the alien is within one or more of the following classes ... ”); id. § 1182(a) (“[A]liens who are
inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United
States”); see also id. § 1229a(e)(2) (“The term ‘removable’ means (A) in the case of an alien not admitted to the United
States, that the alien is inadmissible under section 1182 of [Title 8], or (B) in the case of an alien admitted to the United
States, that the alien is deportable under section 1227 of this title.”).
36 Id. § 1182(d)(5)(A) (“Parole of [any alien applying for admission to the United States] shall not be regarded as an
admission of the alien.... ”); see also Iredia v. Att'y Gen. of United States, 25 F.4th 193, 196 (3d Cir. 2022) (explaining
that when parole ends, an alien is treated like any other applicant for admission, thereby “further reinforcing that the
paroled alien is considered an ‘applicant for admission.’”); Altamirano v. Gonzales, 427 F.3d 586, 590 (9th Cir. 2005)
(“The government argues that Altamirano is a parolee and is therefore an ‘applicant for admission’ who bears the
burden of proof. We agree.”).
37 8 U.S.C. § 1325(a).
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Section 1325(a) contains three distinct avenues in which an alien can commit the crime of
improper entry, as described in further detail below. The Ninth Circuit has observed that,
considered together, these three provisions are “broad enough to cover [unauthorized] entry in
any manner.”38 A first-time violation of this provision is a misdemeanor offense, and a subsequent
violation is a felony offense.39
Entry or Attempted Entry into the United States at a Time or Place Other Than
Designated by Immigration Officers, 8 U.S.C. § 1325(a)(1)
Under Section 1325(a)(1), it is a criminal offense for an alien to enter or attempt to enter the
United States at a place other than one designated by immigration officers.40 The paradigmatic
example is when an alien crosses the international border into the United States by walking
around a fence, miles away from a designated port of entry, and is then discovered by
immigration officers after crossing the border.41
For misdemeanor improper time or place entry, the government must establish that the accused
entered or attempted to enter at a place other than a designated port of entry.42 To establish felony
improper time or place entry, the government must also prove that the alien had been previously
convicted of improper entry.43
38 United States v. Corrales-Vazquez, 931 F.3d 944, 950 (9th Cir. 2019) (citing H.R. REP. NO. 70-2418, at 4). The Ninth
Circuit described the statute:
Section 1325(a)(1) covers aliens who enter or attempt to enter outside of an open port of entry.
Section 1325(a)(2) covers aliens covers aliens who cross through an open port of entry, but elude
examination or inspection in doing so. And § 1325(a)(3) covers aliens who cross through an open
port of entry and submit to examination and inspection, but obtain entry (or attempt to obtain entry)
through willful misrepresentation or concealment. The statute works as a seamless whole.
Id.
39 Id. § 1325(a). If the statute does not expressly classify the offense as a misdemeanor or felony, 18 U.S.C. § 3559
classifies certain offenses as misdemeanors or felonies based on the maximum term of imprisonment authorized by the
underlying criminal statute. Because the term of imprisonment for a first-time violation of Section 1325(a) is a
maximum term of imprisonment of six months, it is classified as a misdemeanor under federal law. See id. § 3559(a)(7)
(providing that “six months or less but more than thirty days” is a Class B misdemeanor). A subsequent violation under
Section 1325(a) imposes a maximum term of imprisonment not more than two years and therefore is classified as a
felony. See id. § 3559(a)(5) (providing that “less than five years but more than one year” is a Class E felony).
40 8 U.S.C. § 1325(a)(1).
41 United States v. Perez-Velasquez, 16 F.4th 729, 730 (10th Cir. 2021) (holding that the defendants had unlawfully
entered the United States at a time or place at other than as designated by immigration officers and rejecting the
argument that the defendants did not enter free from official restraint on a continuous surveillance theory), cert. denied,
142 S. Ct. 2878 (2022).
42 United States v. Aldana, 878 F.3d 877, 880 (9th Cir. 2017) (“In order to convict a defendant of a violation of
§ 1325(a)(1), the government must prove beyond a reasonable doubt that the individual was an ‘alien who ... entered or
attempted to enter the United States at any time or place other than as designated by immigration officers.’”), cert.
denied, 139 S. Ct. 157 (2018); United States v. Romero-Corona, 475 Fed. App’x. 142, 143 (9th Cir.) (affirming
improper entry conviction on the ground that district court’s jury instruction that the element of felony improper entry
was “prior commission” instead of “prior conviction” was harmless error, as evidence of defendant’s prior
misdemeanor conviction was submitted to the jury), cert. denied, 568 U.S. 902 (2012); accord United States v. Khazel,
No. 98-50915, 1999 WL 423017, at *2 (5th Cir. May 28, 1999) (“To obtain a conviction for unlawful entry in violation
of 8 U.S.C. § 1325, the Government had the burden of proving (1) that [the defendant] was an alien; (2) that he entered
the United States; and (3) that he entered unlawfully at a time or place other than as designated by immigration
officers.”).
43 United States v. Arriaga-Segura, 743 F.2d 1434, 1436 (9th Cir. 1984) (upholding determination by jury that the
defendant had been previously convicted of illegal entry upon evidence of a criminal complaint and testimony of a
border patrol agent).
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Establishing Entry
As discussed earlier, the term entry is not defined in the INA, but courts have interpreted entry to
mean that the alien must have traveled from a foreign location to the United States.44
Courts have upheld convictions for improper entry under Section 1325(a)(1) when, combined
with admissions and corroborating evidence, the evidence presented confirms the alien effected
an entry.45 In United States v. Arriaga-Segura, the Fifth Circuit concluded that substantial
evidence supported convictions for felony improper entry where the defendants, who lacked entry
documents, were stopped near the southwest border more than twelve miles from the nearest port
of entry in an area known for alien smuggling.46 Likewise, in an unreported decision, the Fifth
Circuit upheld the defendant’s conviction by bench trial for improper entry where, in addition to
an admission that he was entering the United States from Mexico by crossing the Rio Grande, the
defendant was found without a passport or other valid documents in a remote area near the border
while wearing torn clothing.47
Some reviewing courts have interpreted entry to have another distinct legal requirement that goes
beyond physical presence in the United States for criminal liability to attach under Section
1325(a)(1): The accused must have entered “free from official restraint.”48 One circuit—the Ninth
Circuit—has definitively established that the accused must enter or attempt to enter the United
States “free from official restraint,”49 even though the statutory language does not expressly
contain this specification.50 The courts have interpreted free from official restraint to generally
mean that the defendant intended to enter the United States “without being detected,
apprehended, or taken into custody by government authorities so that he or she could roam freely
in the United States.”51 The Ninth Circuit explained that this “doctrine is based on the legal
44 See supra discussion pp. 4–5 ““Entry” for Purposes of Improper Entry and Reentry”.
45 See, e.g., United States v. Arriaga-Segura, 743 F.2d 1434, 1435 (9th Cir. 1984); United States v. Ledesma-Saldivar,
No. 20-MJ-20174, 2020 WL 7078846, at *3 (S.D. Cal. Dec. 3, 2020) (holding that circumstantial evidence
corroborated defendant’s admission of improper entry outside of a port of entry when she was encountered by border
patrol agents in a “rugged and remote” area two and a half miles from the nearest port of entry) (currently on appeal to
the Ninth Circuit). As a general principle, the Supreme Court has established that “an accused may not be convicted on
his own uncorroborated confession.” Smith v. United States, 348 U.S. 147, 152 (1954) (citing Warszower v. United
States, 312 U.S. 342, 347–48 (1941)).
46 United States v. Arriaga-Segura, 743 F.2d 1434, 1435 (9th Cir. 1984). This case also concerned whether the
government met its burden to prove a prior conviction. Id. at 1436. While noting that “a certified copy of the prior
conviction” is the most reliable evidence of a prior conviction under Section 1325, the Fifth Circuit concluded that
presentation of the criminal complaint and testimony from immigration officers was sufficient evidence for a rational
trier of fact to find a previous conviction. Id. at 1435–36.
47 United States v. Khazel, No. 98-50915, 1999 WL 423017, at *3 (5th Cir. May 28, 1999).
48 Some courts have also held that the principle of freedom from official restraint is applicable to Section 1326(a)—the
criminal offense of reentry of removed aliens—as discussed below. See supra discussion p. 16 “Establishing Entry”.
49 United States v. Gonzalez-Torres, 309 F.3d 594, 598-99 (9th Cir. 2002) (concluding the defendant, convicted under
both Sections 1325(a) and 1326(a), was not free from official restraint because he was continuously surveilled while
crossing the border); cf. United States v. Pacheco-Medina, 212 F.3d 1162, 1164–65 (9th Cir. 2000) (discussing
requirement of “freedom from official restraint” in the context of Section 1326(a)).
50 See United States v. Gaspar-Miguel, 947 F.3d 632, 633–34 (10th Cir.) (detailing history of the concept of “freedom
from official restraint”), cert. denied, 141 S. Ct. 873 (2020); cf. United States v. Pacheco-Medina, 212 F.3d 1162,
1164–65 (9th Cir. 2000); Lopez v. Sessions, 851 F.3d 626, 630–31 (6th Cir. 2017) (discussing the concept of freedom
from official restraint in the civil and criminal context).
51 United States v. Rizo-Rizo, 16 F.4th 1292, 1294 (9th Cir. 2021), cert. denied, 143 S. Ct. 120 (2022); see also Correa
v. Thornburgh, 901 F.2d 1166, 1172 (2d Cir. 1990) (“‘freedom from official restraint’ means that the alien who is
attempting entry is no longer under constraint emanating from the government that would otherwise prevent her from
physically passing on.”); cf. Lopez, 851 F.3d at 630 (“What, then, is freedom from official restraint? It’s the alien’s
liberty to go where he wishes and to mix with the general population.”).
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fiction that an entry is not accomplished until the alien is free from official restraint and can move
freely within the country.”52 To further explain the underlying purpose of the concept, the Ninth
Circuit has stated that “the freedom from official restraint requirement addresses the practical
concern that failing to require such a finding would lead to the criminalization of individuals who
arrive at a port of entry but have not yet had an opportunity to apply for inspection.”53
Other circuits, specifically the Fifth and Tenth Circuits, have yet to definitively weigh in on
whether entry requires “freedom from official restraint,” leaving some uncertainty in those
circuits as to whether the accused must enter free from official restraint for criminal liability to
attach.54 At times, reviewing courts have affirmed convictions because, assuming arguendo that
freedom from official restraint is required, the defendants were not under official restraint at the
time of their unlawful entry.55
Circuits are split over whether continuous surveillance by immigration officers amounts to
official restraint. On several occasions, the Ninth Circuit has concluded that continuous
surveillance constitutes official restraint.56 When under surveillance, according to the Ninth
Circuit, the alien “has still not made an entry despite having crossed the border with the intention
of evading inspection, because he lacks the freedom to go at large and mix with the population.”57
For example, the court in 2002 held that a group of border crossers was not free from official
restraint, as a border patrol agent observed the group cross into the United States, contacted other
agents in the area, and continuously observed the group as they were apprehended.58
In contrast, the Tenth Circuit has held that continuous surveillance by immigration officers does
not qualify as official restraint.59 In the 2020 Tenth Circuit decision, United States v. GasparMiguel, immigration officers observed a group of people cross the border from Mexico into the
United States by walking around a fence and continued to observe the group until other agents
apprehended them.60 The defendant argued that she did not enter the country within the meaning
of Section 1325(a) because she was subject to continuous surveillance and thus was not free from
52 Gaspar-Miguel, 947 F.3d at 633.
53 United States v. Vazquez-Hernandez, 849 F.3d 1219, 1227 (9th Cir. 2017) (discussing freedom from official restraint
doctrine in determining entry by a petitioner seeking review of final order by the Board of Immigration Appeals
excluding her from admission into the United States.).
54 See, e.g., United States v. Perez-Velasquez, 16 F.4th 729, 731 (10th Cir. 2021) (“But this court has never required
freedom from official restraint for an ‘entry’ under § 1325(a), and we need not decide whether it is required here.”),
cert. denied, 142 S. Ct. 2878 (2022); United States v. Rojas, 770 F.3d 366, 368 (5th Cir. 2014) (affirming a Section
1326(a) conviction, observing that the Fifth Circuit “never explicitly adopted the doctrine”), cert. denied, 575 U.S.
1011 (2015).
55 See, e.g., Perez-Velasquez, 16 F.4th at 731–32; Rojas, 770 F.3d at 368 (“Accordingly, the official restraint doctrine,
even assuming arguendo that it applies in general in this circuit, is inapposite here.”).
56 See United States v. Gonzalez-Torres, 309 F.3d 594, 597 (9th Cir. 2002) (recounting that one agent followed the
group through brush while another maintained continuous observation until the group was apprehended), cert. denied,
538 U.S. 969 (2003); United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir. 2000) (reversing the defendant’s
conviction under Section 1326(a) for unlawful reentry because he was under continuous surveillance, but the court
noted that he was culpable of attempted reentry); cf. United States v. Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir. 2000)
(“Our precedent in this circuit requires that we construe restraint broadly to include constant government surveillance
of an alien, regardless of whether the alien was aware of the surveillance or intended to evade inspection.”).
57 Pacheco-Medina, 212 F.3d at 1164 (quoting Matter of Pierre, 14 I. & N. Dec. 467, 469 (1973)).
58 Gonzalez-Torres, 309 F.3d at 598–99.
59 United States v. Gaspar-Miguel, 947 F.3d 632, 634–35 (10th Cir. 2020); United States v. Perez-Velasquez, 16 F.4th
729, 732 (10th Cir. 2021) (affirming Gaspar-Miguel’s holding that surveillance does not constitute restraint).
60 Id. at 632–33.
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official restraint.61 The Tenth Circuit concluded that continuous surveillance by immigration
officers does not constitute official restraint, declaring that “from a common-sense viewpoint, that
continuous surveillance could be thought of as ‘restraint’ is illogical. If the alien does not know
that he is under surveillance, it is difficult to perceive how that surveillance can be said to have
prevented that alien from moving ‘at large and at will within the United States.’’62
The Tenth Circuit ruled similarly in a 2021 case, rejecting the defendant’s argument that
surveillance by immigration officers from a distance constituted official restraint.63 The court
explained that “regardless of the distance of observation—or whether surveillance is aided by
technologies such as binoculars—surveillance on its own cannot transform into restraint.”64
Mens Rea
Section 1325(a)(1) does not contain an express mens rea requirement.65 At least one court of
appeals has concluded that Subsection 1325(a)(1) is a regulatory offense.66 Regulatory offenses
are offenses the Supreme Court has “understood Congress to impose a form of strict criminal
liability through statutes that do not require the defendant to know the facts that make his conduct
illegal.”67 Therefore, under Section 1325(a)(1), within the Ninth Circuit, the government need
only prove that the accused is an alien and that he or she entered the United States at a place other
than a designated port of entry.68
The Ninth Circuit has also held that Section 1325(a)(1)’s “attempt offense incorporates the
common law requirement of specific intent to commit the offense.”69 In other words, “[t]he
specific intent of the attempt offense in § 1325 is simply that the person specifically intended to
enter the United States at a time or place other than as designated by immigration officers.... ”70
Meaning of “Place Other Than as Designated by Immigration Officers”
Neither Section 1325(a)(1) nor the INA as a whole define the phrase at any time or place other
than as designated by immigration officers. Federal regulations provide that “application to
lawfully enter the United States shall be made in person to an immigration officer at a U.S. portof-entry when the port is open for inspection, or as otherwise designated in this section.”71 In the
Ninth Circuit decision, United States v. Aldana, the defendants were convicted of a misdemeanor
61 Id. at 633.
62 Id. at 634–35.
63 Perez-Velasquez, 16 F.4th at 732–33 (“And even if we assumed that freedom from official restraint is required,
neither can establish official restraint because they only rely on a theory of continuous surveillance, and continuous
surveillance alone does not equate to restraint.”)
64 Id. at 732.
65 See United States v. Rizo-Rizo, 16 F.4th 1292, 1296 (9th Cir. 2021), cert. denied, 143 S. Ct. 120 (2022).
66 Id. at 1294–95; see also United States v. Cervantes-Ramirez, No. 20-50176, 2021 WL 5027491, at *1 (9th Cir. Oct.
29, 2021) (consolidated with Rizo-Rizo), cert. denied, 143 S. Ct. 120 (2022).
67 Staples v. United States, 511 U.S. 600, 606 (1994) (explaining that, in examining statutes involving regulatory
offenses, it “inferred from silence that Congress did not intend to require proof of mens rea to establish an offense”).
68 Rizo-Rizo, 16 F.4th at 1294-95.
69 Id. at 1294. A thorough discussion on the intricacies of mens rea is beyond the scope of this report. “Few areas of
criminal law pose more difficulty than the proper definition of the mens rea required for any particular crime.” United
States v. Bailey, 444 U.S. 394, 403 (1980). For a discussion on mens rea, see CRS Report R46836, Mens Rea: An
Overview of State-of-Mind Requirements for Federal Criminal Offenses, by Michael A. Foster (July 7, 2021).
70 Rizo-Rizo, 16 F.4th at 1295.
71 8 C.F.R. § 235.1(a).
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under Section 1325(a)(1) and did not dispute that they had entered the United States away from a
port of entry facility.72 The defendants argued that the implementing regulations “designate entire
geographic regions as ports of entry.”73 The Ninth Circuit rejected that interpretation and ruled
that the statutory phrase refers to “designated ports of entry, as contemplated by” implementing
regulations.74
Challenges to Section 1325(a)(1) Convictions
Some defendants have challenged their convictions for attempted illegal entry under Section
1325(a)(1) on a theory that the government must prove that they had knowledge of their status as
aliens.75 This argument followed the Supreme Court’s ruling in Rehaif v. United States, in which
the Court held that a defendant must know of his status as an unlawfully present alien to be
convicted of firearm possession under 18 U.S.C. § 922(g).76 In United States v. Rizo-Rizo, the
Ninth Circuit considered whether Section 1325(a)(1) requires the government to prove the
accused had knowledge of his or her status as an alien.77 The court held that Section 1325(a)(1) is
a regulatory offense on the grounds that Section 1325(a) “was enacted to control unlawful
immigration,” which is “a normal regulatory function of the sovereign,” and noted that unlawful
entry outside of a port of entry is “conduct that individuals would legitimately expect to be
unlawful.”78 The panel also looked to the penalty of six months’ imprisonment imposed under
Section 1325(a) as suggesting that Congress intended the “statute to be a regulatory offense.”79
According to the Ninth Circuit, because it is a regulatory offense, Section 1325(a)(1) does not
require the government to prove knowledge of alienage status.80 The Ninth Circuit rejected the
defendant’s reliance on Rehaif, reasoning that the statute at issue in Rehaif “concerned an express
mens rea requirement” unlike Section 1325(a)(1) because it penalizes those who knowingly
violate the provision.81
Defendants have also challenged their Section 1325(a)(1) convictions as violations of the Due
Process Clause, and these challenges have generally been rejected by reviewing courts.82 Some
defendants have argued that Section 1325(a) unconstitutionally delegates legislative power to the
executive branch on the theory that Section 1325(a)(1) “permit[s] any immigration officer, with
no governing standards, to designate the times and locations when aliens may lawfully enter the
United States.”83 Article I of the Constitution vests all legislative powers to Congress, but there
may be questions over whether a grant of delegation to the executive branch contravenes the
72 See United States v. Aldana, 878 F.3d 877, 878 (9th Cir. 2017).
73 Id.
74 Id. at 882.
75 See, e.g., Rizo-Rizo, 16 F.4th at 1293; Zepeda-Rodriguez, No. 19-MJ-24357-LL-TWR, 2022 WL 1289691, at *5
(S.D. Cal. Apr. 29, 2022).
76 Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019).
77 Rizo-Rizo, 16 F.4th at 1294.
78 Id. at 1297.
79 Id.
80 Id.; accord United States v. Nunez-Soberanis, 406 F. Supp. 3d 835, 843 (S.D. Cal. 2019).
81 Rizo-Rizo, 16 F.4th at 1295.
82 See, e.g., United States v. Melgar-Diaz, 2 F.4th 1263, 1267 (9th Cir. 2021) (“Defendants argue that § 1325(a)(1) is an
unconstitutional delegation of legislative power to immigration officials and is void for vagueness. We hold that these
constitutional challenges fail.”), cert. denied, 142 S. Ct. 813 (2022); United States v. Pastor-Narcizo, No. 19-MJ024548-LL-BAS-1, 2021 WL 268156, at *2–3 (S.D. Cal. Jan. 27, 2021) (rejecting vagueness challenge).
83 Melgar-Diaz, 2 F.4th at 1265.
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Constitution’s delegation of legislative powers to Congress.84 The nondelegation doctrine, as
established by the Supreme Court, provides that Congress “may not transfer to another branch
‘powers which are strictly and exclusively legislative.’”85 The Court has repeatedly affirmed
congressional authority “to delegate power under broad standards” to governmental entities.86 The
Court has explained that “Congress does not violate the Constitution merely because it legislates
in broad terms, leaving a certain degree of discretion to executive or judicial actors.”87
In the 2021 Ninth Circuit decision United States v. Melgar-Diaz, the defendants argued that the
delegation of authority to immigration officials to designate times and places for entry into the
United States violates the nondelegation doctrine by unconstitutionally allowing immigration
officers to “designate either all or none of the border as a permissible place of entry.”88 The Ninth
Circuit rejected the defendants’ argument, reasoning that “Section 1325(a)(1) does not give
immigration officials the power to create crimes.”89 The Ninth Circuit held that, “by tasking the
Executive with determining the times and places of lawful entry, Congress permissibly gave
immigration officials ‘flexibility to deal with real-world constraints in carrying out [their] charge’
to manage entry at the border.”90
Defendants have also claimed that Section 1325(a)(1) is void for vagueness in violation of the
Fifth Amendment’s Due Process Clause because it does not give individuals clear notice of the
conduct it proscribes.91 In Melgar-Diaz, the Ninth Circuit rejected the two defendants’ as-applied
Due Process challenge claiming the statute was unconstitutionally vague.92 The court concluded
that the statute gave a “person of ordinary intelligence fair notice of what is prohibited” because
the proscription on unlawful entry was clear.93 The Ninth Circuit observed that their conduct “fell
within the heartland of what § 1325(a)(1) prohibits,” as both defendants were found “in isolated
areas miles away from any port of entry.”94
Courts have also rejected arguments that Section 1325(a)(1) is unconstitutionally vague on an
arbitrary enforcement theory.95 As a general principle, the void-for-vagueness doctrine “guards
against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to
govern the actions of police officers, prosecutors, juries, and judges.”96 The Ninth Circuit in
Melgar-Diaz ruled that the defendants did not establish that the government arbitrarily applied
84 U.S. CONST. art. I.
85 Gundy v. United States, 139 S. Ct. 2116, 2123 (2019) (plurality opinion) (quoting Wayman v. Southard, 23 U.S. 1,
42 (1825)).
86 Mistretta v. United States, 488 U.S. 361, 373 (1989).
87 Touby v. United States, 500 U.S. 160, 165 (1991).
88 Melgar-Diaz, 2 F.4th at 1267.
89 Id.
90 Id. at 1268 (quoting Gundy, 139 S. Ct. at 2130).
91 See, e.g., id. at 1269; see also Pastor-Narcizo, 2021 WL 268156, at *2–3 (reasoning that “Section 1325 provides
adequate notice to people of reasonable intelligence as to what is prohibited.”). As the Supreme Court has observed, “it
is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.”
See Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972).
92 Melgar-Diaz, 2 F.4th at 1269 (9th Cir. 2021).
93 Id. (citation omitted).
94 Id. The court also quickly rejected the defendants’ arguments that Section 1325(a)(1) is facially vague. Id. at 1270.
The court observed that “Defendants largely reframe in vagueness terms their same nondelegation theories.” Id.
95 Id.; see also, e.g., Pastor-Narcizo, 2021 WL 268156, at *2–3; United States v. Campos-Atrisco, No. 19-MJ-24683KSC, 2020 WL 7181086, at *3 (S.D. Cal. Dec. 7, 2020).
96 Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018).
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Section 1325(a)(1) to them.97 The court reasoned that the conduct—their unlawful entry between
ports of entry—fell within the core of the provision’s prohibition.98
Eluding Examination or Inspection, 8 U.S.C. § 1325(a)(2)
Section 1325(a)(2) makes it a crime for an alien to elude examination or inspection by
immigration officers.99 Examples of conduct falling within Section 1325(a)(2)’s scope include
“an alien who hides in the trunk of a vehicle passing through a port of entry, or an alien who
crosses through a port of entry on foot and then sneaks by the officers conducting inspections or
examinations.”100
To establish a violation, the government must prove that the defendant eluded examination or
inspection by immigration officers.101 Like Section 1325(a)(1), the statutory language of Section
1325(a)(2) makes no express reference to the mental state required to be guilty of this crime.
Although not binding, lower courts have held in unpublished opinions that Section 1325(a)(2)
requires only that the government prove that the accused intended to commit the acts constituting
the offense and not intent of wrongdoing.102
Location of Violation
A question that has been raised regarding this provision is whether an alien can violate Section
1325(a)(2) if he or she evades examination and inspection by immigration officials by engaging
in conduct proscribed under Section 1325(a)(1), that is, unlawfully entering the United States at a
place other than a designated port of entry (i.e., between ports of entry).
Although this issue has not been addressed by other appellate courts, the Ninth Circuit has
distinguished eluding examination or inspection under Section 1325(a)(2) from entry at a place
other than a designated port of entry under Section 1325(a)(1). In United States v. CorralesVazquez, a Mexican national was found by a border patrol agent hiding in some brush just north
of the international border after unlawfully crossing the border away from a port of entry.103 He
was convicted under Section 1325(a)(2) for eluding examination or inspection by immigration
97 Melgar-Diaz, 2 F.4th at 1269–70 (observing that “[t]heir arbitrary enforcement claim is instead a reprise of their non-
delegation theory premised on supposedly standardless congressional directives, which fails for” the same reasons the
nondelegation argument failed).
98 Id.
99 8 U.S.C. § 1325(a)(2); see, e.g., United States v. Corrales-Vazquez, 931 F.3d 944, 948 (9th Cir. 2019).
100 Corrales-Vazquez, 931 F.3d at 949. See also, e.g., United States v. Montes-De Oca, 820 F. App'x 247, 249–252 (5th
Cir. 2020) (per curiam) (ruling that sufficient evidence supported a defendant’s conviction of eluding examination or
inspection where she was observed moving on foot in vehicular traffic lanes away from the pedestrian border crossing
and was spotted jumping a barrier separating traffic toward the United States.).
101 8 U.S.C. § 1325(a)(2); Montes-De Oca, 820 F. App'x at 251 (approving of jury instructions requiring the
government to “prove that (1) the defendant was an alien and (2) the defendant knowingly eluded examination by the
immigration officers”).
102 See, e.g., Montes-De Oca, 820 Fed. App’x. at 251–52; United States v. Montes-de Oca, No. 19-CR-01508-FM, 2019
WL 3536823, at *4 (W.D. Tex. Aug. 2, 2019) (Ҥ 1325(a)(2) is a general intent crime, and the Government must prove
Defendant acted knowingly to elude examination by immigration officers.”); United States v. Cruz-Garcia, No. 18-MJ2260-RNB-MMA, 2018 WL 8867808, at *1 (S.D. Cal. Aug. 31, 2018) (“Section 1325(a)(2) is a general intent crime”);
United States v. Santiago-Ortega, No. 18-MJ-3320-WVG-MMA, 2018 WL 9782517, at *1 (S.D. Cal. Sept. 21, 2018)
(same); United States v. Gloria-Martinez, No. 18-MJ-3412-RNB-MMA, 2018 WL 9437360, at *1 (S.D. Cal. Oct. 17,
2018) (same).
103 United States v. Corrales-Vazquez, 931 F.3d 944, 946 (9th Cir. 2019).
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officers.104 In vacating his conviction, the Ninth Circuit held that eluding examination or
inspection can occur only at open ports of entry where examinations or inspections take place.105
The court rejected the government’s view that “any alien who crosses into the United States
without examination or inspection necessarily ‘eludes examination or inspection,’ even if the
alien crosses miles away from any place where those processes occur.”106 The Ninth Circuit
asserted that Section 1325(a)(1) would be superfluous if Section 1325(a)(2) also applied to
surreptitious crossing between ports of entry.107 One judge writing in dissent criticized the
effective insertion of at a port of entry by the majority to the provision in the absence of arguably
unambiguous statutory language.108
Other circuits have not weighed in on whether Section 1325(a)(2) requires the eluding
examination or inspection to occur at a designated port of entry, leaving some question as to
whether prosecutors may also charge illegal entrants who surreptitiously enter between ports of
entry under Section 1325(a)(2) in other circuits.
Proof of Entry
While not binding precedent, at least one circuit court has considered whether Section 1325(a)(2)
requires proof of entry. In an unpublished decision, the Fifth Circuit rejected the defendant’s
argument that proof of entry is an additional element of Section 1325(a)(2).109 The court noted the
absence of any express reference to entry in the provision when compared to Section 1325(a)’s
other provisions.110
Entry by Misrepresentation, 8 U.S.C. § 1325(a)(3)
Section 1325(a)(3) makes it a crime for an individual to enter or attempt to enter the United States
by willfully making a false or misleading representation or willfully concealing a material fact. A
paradigmatic violation is the willful presentation of a counterfeit identity document to
immigration officers in an effort to secure entry to the United States.111 When discussing the use
of fraudulent documents in the context of a separate statute, the Supreme Court observed that “if
a counterfeit [identity document] were presented to secure entry or re-entry into the country, the
bearer could be prosecuted under 8 U.S.C. § 1325, which provides for the punishment of ‘(a)ny
alien who ... obtains entry to the United states by a willfully false or misleading representation....
’”112
104 Id.
105 Id. at 947–48; see also United States v. Perez-Martinez, 779 Fed. App’x. 479 (9th Cir. 2019) (overturning
conviction under 1325(a)(2) because defendant’s apprehension occurred twenty-three and a half miles east of the
nearest port of entry).
106 Corrales-Vazquez, 931 F.3d at 947–48.
107 Id. at 950–53.
108 United States v. Corrales-Vazquez, 931 F.3d 944, 956–57 (9th Cir. 2019) (J. Fernandez, dissenting).
109 United States v. Montes-De Oca, 820 Fed. App’x. 247, 251 (5th Cir. 2020).
110 Id.
111 United States v. Campos-Serrano, 404 U.S. 293, 299 (1971), cert. denied, 404 U.S. 1023 (1972); see also, e.g.,
United States v. Custodio-Morales, No. 19-CR-23-DPJ-FKB, 2020 WL 7321069, at *1 (S.D. Miss. Dec. 11, 2020)
(presented visa belonging to someone else in order to gain entry into the United States).
112 Campos-Serrano, 404 U.S. at 299 (discussing how possession of a counterfeit driver’s license away from the border
would not qualify as possessing a fraudulent entry document punishable under 18 U.S.C. § 1546, which prohibits the
possession, use, or receipt of counterfeit or altered visas, permits, or other documents required for entry in the United
States).
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To establish a violation under Section 1325(a)(3), the government must prove that the defendant
entered or attempted to enter the United States by a willfully false or misleading representation or
by concealing a material fact for gaining entry.113
Unlike the other two avenues through which to commit improper entry under Section 1325(a),
Congress adopted an express mens rea requirement in Section 1325(a)(3).114 This provision
punishes “any alien who ... attempts to enter or obtains entry to the United States by a willfully
false or misleading representation or the willful concealment of a material fact.”115 Federal statute
does not define willfulness, but the Supreme Court has observed generally that “the word
‘willfully’ is sometimes said to be ‘a word of many meanings’ whose construction is often
dependent on the context in which it appears.”116 Case law addressing the meaning of willfully in
the context of Section 1325(a)(3) appears to be scarce. Pattern jury instructions provide some
guidance on how courts have construed the term willfully in the context of Section 1325(a)(3).
Courts within the Fifth Circuit, for instance, typically instruct juries that, in the context of Section
1325(a)(3), the government must prove “the defendant acted willfully, that is, he [or she]
deliberately and voluntarily made the representation knowing it was false [or concealed a material
fact].”117
Penalties, 8 U.S.C. § 1325(a)
A first-time violation under Section 1325(a) constitutes a misdemeanor offense carrying a sixmonth maximum term of imprisonment and a fine.118 Subsequent violations of Section 1325(a)
constitute a felony and carry a two-year maximum penalty.119
In addition to criminal penalties, a violation under Section 1325(a)(1) for improper entry at a time
or place other than as designated by immigration officers can also result, under Section 1325(b),
in a civil penalty of at least $50 and not more than $250 for each entry or attempted entry.120 If an
alien had previously been subject to a civil penalty, a violation can result in twice the amount of a
sum between $50 and $250.121 Section 1325(b) does not impose civil penalties for violations
under Section 1325(a)(2) and (a)(3).122
113 8 U.S.C. § 1325(a)(3); Tomczyk v. Wilkinson, 987 F.3d 815, 823 (9th Cir. 2021) (providing elements the
government must prove to establish a violation under Section 1325(a)(3)), opinion amended and superseded, 25 F.4th
638 (9th Cir. 2022).
114 Cf. United States v. Rizo-Rizo, 16 F.4th 1292, 1298 (9th Cir. 2021) (observing that “Congress … adopted express
mens rea requirements in other parts of Section 1325,” including Section 1325(a)(3)).
115 Id. § 1325(a)(3) (emphasis added).
116 Bryan v. United States, 524 U.S. 184, 191 (1998); accord United States v. Arditti, 955 F.2d 331, 340 (5th Cir.
1992).
117 FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (CRIMINAL CASES) § 2.02C (2019).
118 8 U.S.C. § 1325(a). In the absence of an amount specified in Section 1326, a person convicted under 1326(a) may be
subject to a fine not more than $250,000 or potentially an alternative fine of twice the amount of pecuniary gain from
the offense or pecuniary loss to a person other than the defendant. 18 U.S.C. § 3571.
119 8 U.S.C. § 1325(a).
120 Id. § 1325(b).
121 Id.
122 See id. § 1325(b) (“Any alien who is apprehended while entering (or attempting to enter) the United States at a time
or place other than as designated by immigration officers shall be subject to a civil penalty ….”).
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Illegal Reentry, 8 U.S.C. § 1326(a)
Under Section 1326(a), it is a felony offense for an alien to reenter or attempt to reenter, or to be
found in, the United States without authorization to enter the United States after having been
“denied admission, excluded, deported, or removed or [] departed the United States while an
order of exclusion deportation, or removal is outstanding”123 Unlike prosecutions for improper
entry under Section 1325(a), prosecutions under Section 1326(a) require proof that the accused
entered the United States without authorization following either prior removal from the United
States or voluntary departure while an order of removal was outstanding. A paradigmatic example
of a Section 1326(a) violation is an alien who was removed through expedited removal after he
was found crossing the southwest border at a place or time other than as designated by
immigration officers and was then discovered in the United States by authorities years later while
the removal order remained in effect.124 An example of attempted reentry is when an individual
who had been previously removed twice walked up to a port of entry and displayed a photo
identification of his cousin to immigration officers in an attempt to secure entry.125
To establish a violation under Section 1326(a), the government must typically prove that the alien
left the United States with an outstanding order of deportation or removal against him and that
afterward the alien entered, attempted to enter, or was found in the United States.126 Circuits have
generally identified four separate elements of this criminal offense: (1) alienage; (2) denial of
admission, a prior deportation or removal, or a voluntary departure while an order of removal was
outstanding; (3) entry into or unlawful presence in the United States; and (4) lack of permission to
enter.127 It is also a crime under Section 1326(a) for aliens previously subject to removal to be
“found” in the United States. To sustain a conviction under Section 1326(a) for being “found” in
the United States following a prior removal, the government must establish (1) the alien’s
physical presence in the United States and (2) the illegality of that presence (i.e., that the alien is
in the country without authorization).128 In the words of the Seventh Circuit, this provision
enables “prosecution of deportees who evade detection at the border and remain present here
123 Id. § 1326(a).
124 See, e.g., United States v. Gonzalez-Fierro, 949 F.3d 512, 515–16 (10th Cir. 2020).
125 See United States v. Resendiz-Ponce, 549 U.S. 102, 104 (2007).
126 Gonzalez-Fierro, 949 F.3d at 516 (citing United States v. Almanza-Vigil, 912 F.3d 1310, 1316 (10th Cir. 2019)).
127 United States v. Ayon-Brito, 981 F.3d 265, 269 (4th Cir. 2020) (“Thus, the elements of the offense are: (1) that the
defendant is an alien; (2) that he was deported or removed from the United States; (3) that he thereafter reentered (or
attempted to reenter) the United States; and (4) that he lacked permission to do so.”), cert. denied, 142 S. Ct. 162
(2021); United States v. Flores-Peraza, 58 F.3d 164, 166 (5th Cir. 1995) (identifying the elements as “(1) alienage, (2)
arrest and deportation, (3) reentry into or unlawful presence in the United States, and (4) lack of the Attorney General's
consent to reenter.”) (citing United States v. Cardenas-Alvarez, 987 F.2d 1129, 1131–32 (5th Cir. 1993), cert. denied,
516 U.S. 1076 (1996). But see United States v. Meza-Soria, 935 F.2d 166, 168 (9th Cir. 1991) (“The elements of this
crime are straightforward.... The elements are: (1) the defendant is an alien; (2) he was arrested and deported or
excluded and deported; and (3) thereafter, he improperly entered, or attempted to enter, the United States.”).
The Ninth Circuit has expressly stated the elements the government must prove for the crime of attempted illegal
reentry into the United States under Section 1326(a):
(1) the defendant had the purpose, i.e., conscious desire, to reenter the United States without the express
consent of the Attorney General; (2) the defendant committed an overt act that was a substantial step
towards reentering without that consent; (3) the defendant was not a citizen of the United States; (4) the
defendant had previously been lawfully denied admission, excluded, deported or removed from the
United States; and (5) the Attorney General had not consented to the defendant's attempted reentry.
United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000), cert. denied, 535 U.S. 1069 (2002).
128 See, e.g., United States v. Ayon-Brito, 981 F.3d 265 (4th Cir. 2020).
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undetected, even for long periods of time.”129 The Ninth Circuit has clarified that a conviction for
being “found” in the United States is not punishing immigration status, as the provision
necessarily requires that a defendant commit an act: He must reenter the United States without
permission130 or remain unlawfully after the expiration of authorization to be present in the
United States.131
Some circuits have held that U.S. citizenship is a defense to charges brought under Section
1326(a) on the basis that U.S. citizenship negates the requirement that the accused be an alien to
be guilty of this offense.132
Establishing Entry
As discussed earlier, entry is not defined in the INA, but courts have interpreted the term to
require that the alien traveled from a foreign location to the United States.133 As with the case of
unlawful entry under Section 1325(a)(1), some reviewing courts have interpreted entry for
purposes of a Section 1326(a) conviction to require entry “free from official restraint.”134
Mens Rea
Lower courts have mostly agreed that general intent is the appropriate mental state required to be
culpable for reentry or being “found” in the United States under Section 1326(a).135 The Tenth
Circuit has stated that “nothing more than a showing of general intent is required.”136 The court
further explained that “the government need not show that [the] defendant willfully and
knowingly engaged in criminal behavior, but only that the defendant’s acts were willful and
129 United States v. Are, 498 F.3d 460, 462 (7th Cir. 2007).
United States v. Reyes-Ceja, 712 F.3d 1284, 1288–89 (9th Cir.) (“Had Reyes-Ceja accidentally wandered across the
border while drunk, or been kidnapped and taken across the border against his well, a different question would need to
be answered.”), cert. denied, 571 U.S. 979 (2013); see also United States v. Rincon-Diego, No. 12-CR-2416-KC, 2012
WL 6021472, *4 (W.D. Tex. Nov. 19, 2012) (concluding that “a noncitizen cannot be ‘found in’ the United States …
without exiting and reentering the country after a previous conviction for illegal reentry.”).
131 See United States v. Pina-Jaime, 332 F.3d 609, 611 (9th Cir. 2003) (holding criminal liability attached to defendant
who remained in the United States after the expiration of his period of parole).
132 See, e.g., United States v. Juarez, 672 F.3d 381, 386 (5th Cir. 2012); United States v. Smith-Baltiher, 424 F.3d 913,
922 (9th Cir. 2005) (explaining, in the context of charges under Section 1326(a), “because derivative citizenship would
negate that element of the offense, [the defendant] must be allowed to present that defense to the jury.”). However, one
court has stated that alienage is not an element of the offense.
133 See supra discussion pp. 4–5 ““Entry” for Purposes of Improper Entry and Reentry”.
134 See supra discussion pp. 7-9 “Establishing Entry”; see also United States v. Lombera-Valdovinos, 429 F.3d 927,
929 (9th Cir. 2005) (“Our circuit precedent clearly holds that an alien who is on United States soil, but who is
“deprived of [his] liberty and prevented from going at large within the United States,” remains under official restraint
and therefore has not entered the country for the purposes of § 1326.”).
135 See United States v. Carlos-Colmenares, 253 F.3d 276, 277 (7th Cir.) (collecting cases), cert. denied, 534 U.S. 914
(2001) ; United States v. Berrios-Centeno, 250 F.3d 294, 298 (5th Cir.), cert. denied, 534 U.S. 928 (2001); United
States v. Gutierrez-Gonzalez, 184 F.3d 1160, 1165 (10th Cir. ), cert. denied, 528 U.S. 1011 (1999); United States v.
Henry, 111 F.3d 111, 114 (11th Cir. ), cert. denied, 522 U.S. 894 (1997); United States v. Ortiz-Villegas, 49 F.3d 1435,
1437 (9th Cir.), cert. denied, 516 U.S. 845 (1995); United States v. Espinoza-Leon, 873 F.2d 743, 746 (4th Cir.), cert.
denied, 492 U.S. 924 (1989). This report is not an exhaustive discussion on mens rea requirements. It is worth
emphasizing that “few areas of criminal law pose more difficulty than the proper definition of the mens rea required for
any particular crime.” See United States v. Bailey, 444 U.S. 394, 403 (1980). For a discussion on mens rea generally,
see CRS Report R46836, Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses, by
Michael A. Foster.
136 United States v. Miranda-Enriquez, 842 F.2d 1211, 1212 (10th Cir. 1988).
130
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knowing—that the defendant willfully and knowingly reentered the United States and ... did so
without ... permission [from immigration officers].”137
Lower courts disagree over whether attempted illegal reentry requires general or specific intent.
Several circuits have held that “specific intent is not an element of the statute.”138 The Fifth
Circuit stated that “in proving an attempted illegal reentry, it is sufficient that the government
demonstrates that a previously deported alien knowingly intended to reenter the United States—
general intent with respect to the actus reas of the crime—rather than showing that the alien has a
reasonable but mistaken belief that he had the consent of the Attorney General to reenter the
country.”139 The Ninth Circuit has held that attempted illegal reentry “requires proof of specific
intent, more particularly the specific intent ‘to reenter without consent.’”140
Within the Ninth Circuit, defendants have successfully challenged their attempted reentry
convictions on the premise that they did not have the requisite mental state of specific intent to
enter the United States “free from official restraint.”141 In other words, they claim that they did
not intend to enter the country without being detected, apprehended, or taken into custody. In
United States v. Argueta-Rosales, the defendant crossed into the United States from Mexico by
climbing over the primary fence and was spotted by border patrol agents.142 Following his Section
1326(a) conviction by bench trial, the defendant appealed the conviction on the ground that he
lacked the requisite intent to reenter the United States without detection because he intended to
enter into the government’s custody.143 The defendant presented evidence that he “entered the
United States under the psychotic belief that he was being chased by armed gunmen in Mexico”
and that he intended to enter to “find protection” by turning himself over to the border patrol.144
The Ninth Circuit noted that, although evidence showed intent to enter the United States into
government custody, other evidence also pointed to the contrary.145 The court reversed his
conviction on the ground that it was for the trier of fact to determine whether the government had
proven unlawful intent to enter the United States free from official restraint beyond a reasonable
doubt.146 The Ninth Circuit further clarified that, in order to convict an alien of attempted illegal
reentry, the government had to prove only that the alien intended to enter the United States free
from official restraint—not that this was his only purpose.147
137 Id.
138 United States v. Morales-Palacios, 369 F.3d 442, 446–49 (5th Cir. 2004); accord United States v. Peralt-Reyes, 131
F.3d 956, 957 (11th Cir. 1997) (per curiam), cert. denied, 523 U.S. 1087 (1998); United States v. Reyes-Medina, No.
94-1923, 1995 WL 247343, at *1 (1st Cir. Apr. 25, 1995) (unpublished); United States v. Florentino-Rosario, 459 F.
Supp. 3d 345, 354-59 (D.P.R. 2020) (discussing Reyes-Medina and other case law and concluding that “proving
attempted reentry in violation of section 1326(a) requires proof of a purpose to enter the United States but does not
require proof of intent to do so illegally.”), aff’d, 19 F.4th 530 (1st Cir. 2021).
139 Morales-Palacios, 369 F.3d at 449.
140 United States v. Argueta-Rosales, 819 F.3d 1149, 1155–56 (9th Cir. 2016) (citing United States v. LomberaValdovinos, 429 F.3d 927, 929 (9th Cir. 2005)).
141 See, e.g., Argueta-Rosales, 819 F.3d at 1161; Lombera-Valdovinos, 429 F.3d at 928 (holding it was “impossible to
convict a previously deported alien for attempted illegal reentry into the United States under [Section 1326(a)] when he
crosses the border with the intent only to be imprisoned ... , because attempted illegal reentry is a specific intent crime
that requires proof of intent to enter the country free from official restraint.”).
142 Argueta-Rosales, 819 F.3d at 1152.
143 Id. at 1153–54.
144 Id. at 1154.
145 Id. at 1157–58.
146 Id. at 1155–56.
147 Id. at 1157.
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In another Ninth Circuit decision, the court reversed a defendant’s Section 1326(a) conviction on
the ground that he lacked specific intent to be free from official restraint because he had intended
to be taken to jail while crossing.148
Physical Departure After the Issuance of an Order of Removal
Reviewing courts have considered whether an alien can be said to have been deported and
reentered if that alien never physically departed the United States. In United States v. RomoRomo, the Ninth Circuit held that the defendant could not be considered “found” in the United
States without physically exiting and reentering the country after a deportation order.149 The
defendant had been ordered deported but was never actually physically removed from the country
because, while his removal was being carried out, he allegedly escaped and remained in the
United States.150 He was later convicted of reentry under Section 1326(a) for being “found” in the
United States.151 In concluding the district court erroneously instructed the jury that the defendant
did not actually have to leave the United States to be deported, the Ninth Circuit clarified that the
defendant must in fact depart the United States following an order of removal for criminal
liability to attach.152
Although the Fifth Circuit has not addressed whether an alien must physically depart the United
States after the issuance of an order of removal, it has stated that one of the elements the
government must prove to establish a violation under Section 1326(a) is “arrest and deportation,”
indicating that the alien must physically depart from the United States after the issuance of an
order of removal.153 Similarly, the Tenth Circuit has identified that a violation requires an arrest
and deportation.154
Remaining Unlawfully After a Lawful Entry
At least one court of appeals has considered whether a previously removed alien who had been
authorized to enter the United States but remained in the country in violation of law is culpable
under Section 1326(a) for being “found” in the United States. In United States v. Pina-Jaime, the
Ninth Circuit clarified that Section 1326(a) does not require an unauthorized entry for liability to
attach.155 There, the court upheld a conviction for being “found” in the United States where the
previously deported alien, who had been paroled into the United States for a specified period of
time, voluntarily chose to remain in the United States after his parole period had expired.156 The
148 United States v. Lombera-Valdovinos, 429 F.3d 927, 928 (9th Cir. 2005).
149 United States v. Romo-Romo, 246 F.3d 1272, 1274 (9th Cir. 2001); accord United States v. Orozco-Acosta, 607
F.3d 1156, 1162 (9th Cir. 2010) (recounting that “the government ... was required to prove ... that Orozco-Acosta, prior
to being apprehended, had in fact been physically removed from the United States.”).
150 Id. at 1273–74.
151 Id. at 1274.
152 Id. at 1274–75.
153 United States v. Flores-Peraza, 58 F.3d 164, 166 (5th Cir. 1995) (emphasis added), cert. denied, 516 U.S. 1076
(1996); accord United States v. Rincon-Diego, No. 12-CR-2416-KC, 2012 WL 6021472, at *5 (W.D. Tex. Nov. 19,
2012).
154 United States v. Miranda-Enriquez, 842 F.2d 1211, 1212 (10th Cir. 1988) (“Under [Section 1326(a)] it is a felony
for any alien who has been arrested and deported to thereafter enter or subsequently be found in the United States,
unless he has obtained permission for reentry from the Attorney General or he demonstrates that such permission was
not required.”).
155 United States v. Pina-Jaime, 332 F.3d 609, 612 (9th Cir. 2003).
156 Id.; accord Altamirano Trejo v. Rosen, 832 Fed. App’x. 525, 526 (9th Cir. 2021) (“By overstaying his parole in
such an egregious manner, Altamirano effectuated an illegal reentry.”).
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court rejected the defendant’s argument that he could not be held criminally liable under Section
1326(a) because he had entered the United States with permission, even though he had remained
unlawfully.157
Other lower courts have not definitively addressed whether an alien can violate 1326(a)’s “found
in” provision without an unlawful entry, but at least one circuit court stated in an unpublished
opinion “that there are circumstances where an alien can be convicted of violating § 1326(a)’s
‘found in’ provision without having unlawfully entered the country within the meaning of the
statute.”158
Voluntary Presentation to Immigration Officers
Courts of appeals have vacated reentry convictions for having been “found” in the United States
when the accused voluntarily presented himself or herself to immigration officers.159 In the 1991
Eleventh Circuit decision United States v. Canals-Jimenez, a former lawful permanent resident
previously removed from the United States was purportedly flying from the Dominican
Republican to Canada through the Miami airport.160 The alien presented himself to immigration
officers in Miami who suspected he was attempting to enter the United States without
authorization.161 He was arrested and later found guilty for being “found” in the United States
after having been previously removed from the United States.162 On appeal, the Eleventh Circuit
vacated the defendant’s conviction, holding that he was not “found” in the United States because
he voluntarily approached immigration officers.163 The court noted that an “alien who seeks
admission through a recognized immigration port of entry might be guilty of entering or
attempting to enter the United States, but not of being found in the United States.”164
The Fifth Circuit also held that an alien who voluntarily approaches an immigration officer does
not qualify as “found” in the United States under Section 1326(a), even though he or she is
physically present in the United States.165 The defendant, who had voluntarily approached an
immigration officer at the Dallas–Fort Worth International Airport, initially pleaded guilty under
Section 1326(a) for having been “found” in the United States.166 On appeal, the Fifth Circuit
vacated his conviction, concluding that because the defendant voluntarily approached
immigration authorities, “it cannot be said that he was discovered in or found in the United
States.”167 Although an alien may not be charged with being “found” in the United States
157 United States v. Pina-Jaime, 332 F.3d 609, 612 (9th Cir. 2003).
158 United States v. Ramirez-Jose, 93 F. App'x 256, 258 (1st Cir. 2004) (unpublished).
159 See, e.g., United States v. Zavala-Mendez, 411 F.3d 1116, 1120–21 (9th Cir. 2005) (noting that a conviction for
being “found in” the United States was not appropriate; “lying about his green card might have exposed [the defendant]
to an ‘attempting to enter’ conviction, but he was not charged with that.”); United States v. Angeles-Mascote, 206 F.3d
529, 531 (2000); United States v. Canals-Jimenez, 943 F.2d 1284, 1285–86 (11th Cir. 1991).
160 Canals-Jimenez, 943 F.2d at 1285–86.
161 Id.
162 Id. at 1286.
163 Id. at 1287.
164 Id.
165 United States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000).
166 Id. at 531.
167 Id.
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following reentry in those circumstances, the Fifth Circuit noted, he or she could still be charged
with attempted reentry depending on the facts of the case.168
Statute of Limitations
Some previously removed aliens are discovered by immigration officers shortly after reentering
or attempting to reenter the United States, while others might remain in the United States
undetected by immigration officers for long periods of time, potentially even decades.169 Federal
law contains statutes of limitations that set the maximum time after certain conduct within which
the government may initiate prosecution. Ordinarily, the statute of limitations begins to run as
soon as the crime has been “completed,” which occurs when the last element of the crime has
been satisfied.170 The statute of limitations applicable for most federal criminal offenses is five
years after the offense is committed.171 Because inspections take place at the time of entry into the
United States, the offenses of improper entry and reentry are consummated when an alien gains
entry without submitting to inspection.172 The statute of limitations then begins.
The “found in” provision of Section 1326(a) raises a distinct issue when it comes to the triggering
of the statute of limitations. Certain crimes continue even after the elements of the crime have
been completed. The statute of limitations for these crimes, referred to as “continuing offenses,”
is delayed if either “the explicit language of the substantive criminal statute compels such a
conclusion, or the nature of the crime involved is such that Congress must assuredly have
intended that it be treated as a continuing one.”173
Federal courts have “nearly universally recognized” the “found in” component of Section 1326(a)
as a continuing offense.174 The Fourth Circuit explained that “if the alien succeeds in reentering
168 Id. (commenting that “[t]he appropriate indictment ... would have been to charge [the defendant] with attempting to
enter the United States after previously being deported”).
169
See generally CRS Report RL31253, Statute of Limitation in Federal Criminal Cases: An Overview, by Charles
Doyle.
170 Toussie v. United States, 397 U.S. 112, 115 (1970) (quoting Pendergast v. United States, 317 U.S. 412, 418 (1943).
171 18 U.S.C. § 3282.
172 See, e.g., United States v. DiSantillo, 615 F.2d 128, 136 (3d Cir. 1979) (“[T]he crime of illegal entry through a
recognized INS port of entry after being arrested and deported is not a continuing offense.... ”); United States v.
Rincon-Jimenez, 595 F.2d 1192, 1193–94 (9th Cir. 1979) (“Because these examinations and inspections are to take
place at the time of entry, a fixed point in time, this suggests that the offense described by § 1325[(a)](2) is
consummated at the time an alien gains entry through an unlawful point and does not submit to these examinations.”).
173 Toussie, 297 U.S. at 115. For a compilation of federal offenses that are continuing offenses, see CRS Report
RL31253, Statute of Limitation in Federal Criminal Cases: An Overview, by Charles Doyle (updated Nov. 14, 2017).
174 United States v. Ayon-Brito, 981 F.3d 265, 270 (4th Cir. 2020) (listing cases from various federal courts of appeals
recognizing “found in” as a continuing offense), cert. denied, 142 S. Ct. 162 (2021); accord United States v. OronaIbarra, 831 F.3d 867, 870 (7th Cir. 2016) (“Illegal re-entry is a ‘continuing offense’ that is committed from the moment
the defendant reenters the country until federal immigration agents gain ... knowledge of her presence, her identity, and
her unlawful immigration status”) (citation omitted); United States v. Mendez-Cruz, 329 F.3d 885, 889 (D.C. Cir.
2003) (“Reentry was clearly an act committed during the offense of being found in the United States because that
offense is a continuing violation that commences with the illegal entry”); United States v. Santana-Castellano, 74 F.3d
593, 598 (5th Cir. 1996) (“Where a deported alien enters the United States and remains here with the knowledge that
his entry is illegal, his remaining here until he is ‘found’ is a continuing offense because it is ‘an unlawful act set on
foot by a single impulse and operated by an unintermittent force.... ”), cert. denied, 517 U.S. 1228 (1996).
Although it has not specifically addressed whether Section 1326(a)’s “found in” provision constitutes a continuing
offense, the Supreme Court weighed in on whether a statute penalizing seamen who are “present” in the United States
for more than twenty-nine days allowed by the crew’s conditional landing permit, codified in 8 U.S.C. § 1282(c), is a
continuing offense. United States v. Cores, 356 U.S. 405, 406 (1958). The Court described such provision as a
continuing offense, reasoning that the “affirmative act of willfully remaining” is an ongoing offense. Id. at 408–09. The
(continued...)
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the country surreptitiously, as opposed to being stopped at the border, the offense is complete
when the alien is ‘found in’ in the United States.”175 Describing the “found in” component as a
continuing offense, the Seventh Circuit explained that “an ‘entry’ is complete when it occurs,
while illegal ‘presence’ is ongoing.”176 By categorizing “found in” as a continuing offense,
Section 1326’s “found in” provision is therefore committed from the moment the alien enters the
country until immigration officers gain knowledge of his or her presence, identity, and unlawful
immigration status.177 So long as an alien remains unlawfully present in the United States without
detection, the general five-year statute of limitations is not triggered.178 Once the alien becomes
known to federal law enforcement, the five-year statute of limitations begins.179 To determine
“whether an indictment for illegal reentry is within the five-year statute of limitations, therefore, a
court must assess when the alien was ‘found in’ the United States.”180
At times, immigration officers may interact with an individual but fail to realize his or her
unlawful presence. The five-year statute of limitations, as stated by the Eighth Circuit, generally
begins “when immigration authorities could have, through the exercise of diligence typical of law
enforcement authorities, discovered the violation.”181 For instance, in the Third Circuit decision
United States v. DiSantillo, a previously removed alien reentered the United States through a port
of entry under his own name and an immigrant visa and, nearly nine years later, was charged with
illegal reentry.182 As his entry was not surreptitious, the Third Circuit reasoned, immigration
officers had sufficient notice of his entry, and the statute of limitations began upon his arrival in
the United States.183 In vacating the conviction, the court concluded that the charges were barred
by the statute of limitations, given that it expired approximately four years before the filing of the
indictment.184
Some defendants have sought to evade criminal liability by claiming that prosecution was barred
by the statute of limitations because it had been triggered when the alien was “found” by state
officials.185 As a general rule, an alien is “found” when he is discovered by federal officials, not
state officials, because only the federal government can enforce immigration laws.186
Court explained, “It seems incongruous to say that while the alien ‘willfully remains’ on the 29th day when his permit
expires, he no longer does so on the 30th, though still physically present in the country.” Id. at 409.
175 United States v. Alas, 63 F.4th 269, 273 (4th Cir. 2023) (citation omitted).
176 United States v. Rodriguez-Rodriguez, 453 F.3d 458, 460–61 (7th Cir. 2006) (citation omitted).
177 See United States v. Orona-Ibarra, 831 F.3d 867, 870 (7th Cir. 2016) ; see also Ayon-Brito, 981 F.3d at 270 (“[W]e
hold that § 1326(a) creates a continuing offense, which begins with a previously deported alien's reentry (or attempted
reentry) into the United States and continues until the alien is found”).
178 See, e.g., United States v. Clarke, 312 F.3d 1343 (11th Cir. 2002); United States v. Lopez-Flores, 275 F.3d 661 (7th
Cir. 2001); United States v. Reyes-Pacheco, 248 F.3d 942 (9th Cir. 2001); United States v. Acevedo, 229 F.3d 350 (2d
Cir.) cert. denied, 531 U.S. 1027 (2000).
179 See, e.g., United States v. Gomez, 38 F.3d 1031, 1037 (8th Cir. 1994); United States v. Uribe-Rios, 558 F.3d 347,
354 (4th Cir. 2009); United States v. Rivera-Ventura, 72 F.3d 277, 282 (2d Cir. 1995).
180 Alas, 63 F.4th at 273.
181 Gomez, 38 F.3d at 1037; see also Rivera-Ventura, 72 F.3d at 285.
182 United States v. DiSantillo, 615 F.2d 128, 130 (3d Cir. 1980).
183 Id. at 137.
184 Id.
185 See, e.g., United States v. Uribe-Rios, 558 F.3d 347, 352–53 (4th Cir. 2009); United States v. Clarke, 312 F.3d
1343, 1347 (11th Cir. 2002) (rejecting argument that immigration authorities could have learned of his illegal presence
when Florida police confirmed his identity).
186 United States v. Alas, 63 F.4th 269, 273 (4th Cir. 2023) (citing Uribe-Rios, 558 F.3d at 353); United States v.
Clarke, 312 F.3d 1343, 1347 (11th Cir. 2002) (collecting cases in rejecting argument that knowledge by state officials
(continued...)
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Federal law, though, allows federal immigration authorities to deputize certain qualified state
officers to perform the functions of an immigration officer in some circumstances, with the
“principal example” being a program authorized by Section 287(g) of the INA (Section 287(g)),
found in 8 U.S.C. § 1357(g).187 Under a Section 287(g) agreement, local officers may perform
immigration enforcement functions if immigration authorities determine and certify that the
officer is “qualified to perform a function of an immigration officer in relation to the
investigation, apprehension, or detention of aliens in the United States.”188 At least one circuit has
clarified that aliens detected by state officers designated and trained under a Section 287(g)
agreement to enforce federal immigration law would be considered to be “found” in the United
States for purposes of Section 1326(a), while aliens discovered by a state officer not designated or
trained under a Section 287(g) agreement would not be considered to be “found” in the United
States.189
In the 2023 decision United States v. Alas, the Fourth Circuit held that a Section 287(g)
agreement with a state or local law enforcement entity does not render all employees, including
those who are not designated or trained under a Section 287(g) agreement, as immigration
officers for purposes of triggering the statute of limitations.190 The court rejected the defendant’s
theory that the statute of limitations began when he spoke with a county sheriff’s deputy when the
deputy visited the defendant in a hospital to discuss an assault because the sheriff’s department
had a 287(g) agreement.191
Challenging the Underlying Order of Removal
Some have sought to evade criminal liability under Section 1326(a) by challenging the underlying
order of removal as invalid.192 Section 1326(d) of Title 8 provides opportunity for defendants to
collaterally attack their prior removals as improper, but defendants must satisfy certain procedural
requirements.193 Defendants must show that (1) they exhausted any administrative remedies that
may have been available to seek relief against the removal orders, (2) the removal proceedings
improperly deprived them of the opportunity for judicial review, and (3) entry of the order was
fundamentally unfair.194
In the 2021 decision United States v. Palomar-Santiago, the Supreme Court considered whether
the defendant was excused from satisfying the first two of the procedural requirements because
his prior removal order was premised on a conviction that was later found not to be a removable
offense.195 There, the defendant was indicted for improper reentry under Section 1326(a) after he
is insufficient to trigger the five-year statute of limitations); United States v. Mercedes, 287 F.3d 47, 55 (2d Cir.), cert.
denied, 537 U.S. 900 (2002).
187 Arizona v. United States, 567 U.S. 387, 408 (2012); 8 U.S.C. § 1357(g)(1). To learn more about the 287(g) program,
see CRS In Focus IF11898, The 287(g) Program: State and Local Immigration Enforcement, by Abigail F. Kolker.
188
8 U.S.C. § 1357(g)(1).
189 United States v. Sosa-Carabantes, 561 F.3d 256, 257 (4th Cir. 2009).
190 Alas, 63 F.4th at 275.
191 Id.
192 See, e.g., United States v. Palomar-Santiago, 141 S. Ct. 1615, 1620 (2021); United States v. Castillo-Martinez, 16
F.4th 906, 911 (1st Cir. 2021), cert. denied, 143 S. Ct. 123 (2022); United States v. Cerna, 603 F.3d 32, 38 (2d Cir.
2010).
193 8 U.S.C. § 1326(d).
194 Id.; Palomar-Santiago, 141 S. Ct. at 1619.
195 Palomar-Santiago, 141 S. Ct. at 1619.
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was removed due to a prior California conviction for driving under the influence (DUI).196 The
defendant collaterally attacked the underlying order of removal as invalid following the Supreme
Court’s 2004 decision in Leocal v. Ashcroft,197 in which the Court held that felony DUI does not
constitute an aggravated felony warranting removal under the INA.198 Even though there had
been a substantive change in the law, the Court in Palomar-Santiago held unanimously that
individuals must satisfy all of Section 1326(d)’s administrative exhaustion requirements and that
the first two requirements are not satisfied just because an alien was removed for an offense that
should not have rendered him removable.199 This ruling clarifies that defendants must exhaust
administrative remedies in accordance with Section 1326(d), and substantive invalidity of a
removal order is insufficient, in itself, to evade criminal liability for reentry.200
The question before the Court in Palomar-Santiago, however, did not concern what constitutes
exhaustion of administrative remedies or a deprivation of judicial review, leaving open such
questions to the lower courts. For instance, prior to Palomar-Santiago, the Ninth Circuit held that
“a showing of ineffective assistance of counsel can justify a failure to exhaust and satisfy the
judicial review requirement.”201 However, the First Circuit, since Palomar-Santiago, has ruled
that ineffective assistance of counsel does not excuse Section 1326(d)’s requirements because of
the availability to file a motion with the Board of Immigration Appeals (BIA) to reopen a case on
the grounds of ineffective assistance of counsel.202
The Ninth Circuit has expressed uncertainty about Palomar-Santiago’s impact on its prior
jurisprudence.203 In a 2022 decision, United States v. Castellanos-Avalos, the Ninth Circuit
recounted how its jurisprudence contained:
three circumstances in which a defendant could overcome both § 1326(d)(1)’s exhaustion
requirement and § 1326(d)(2)’s deprivation-of-judicial-requirement: (1) “when the
[immigration judge] failed to inform the alien that he had a right to appeal his [removal]
order to the BIA;” (2) when the IJ failed “to inform the alien that he is eligible for a certain
type of relief;” and (3) when the defendant waived his right to appeal to the BIA, but can
show that “his waiver was not considered and intelligent.”204
The court noted how Palomar-Santiago “called at least some aspects of this framework into
question” but also observed how Palomar-Santiago “concerned a different circumstance in which
our court’s precedents permitted excusal of a failure to comply with § 1326(d)’s procedural
requirements.”205
196 Id. at 1618–19.
197 Leocal v. Ashcroft, 543 U.S. 1, 11–13 (2004).
198 Palomar-Santiago, 141 S. Ct. at 1620.
199 Id. at 1620–21.
200 Id. at 1621.
201 Castellanos-Avalos, 22 F.4th 1142, 1146 (9th Cir. 2022) (citing United States v. Lopez-Chavez, 757 F.3d 1033,
1044 (9th Cir. 2014)).
202 United States v. Castillo-Martinez, 16 F.4th 906, 916 (1st Cir. 2021), cert. denied, 143 S. Ct. 123 (2022); accord
United States v. Cerna, 603 F.3d 32, 40 (2d Cir. 2010) (holding that ineffective assistance of counsel may be grounds to
excuse § 1326(d)(2)’s requirement).
203 See Castellanos-Avalos, 22 F.4th at 1145–46 (noting that Palomar-Santiago “called at least some aspects of this
framework into question.”); Zamorano v. Garland, 2 F.4th 1213, 1225 (9th Cir. 2021); Alam v. Garland, 11 F.4th 1133,
1137-38 (9th Cir. 2021) (en banc) (Bennet, J., concurring).
204 Castellanos-Avalos, 22 F.4th at 1145 (quoting United States v. Gonzalez-Villalobos, 724 F.3d 1125, 1130–31 (9th
Cir. 2013))
205 Id. at 1146.
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The Castellanos-Avalos panel rejected the defendant’s arguments that procedural defects in his
removal proceedings constituted the deprivation of the “opportunity for judicial review”
justifying setting aside his removal order.206 The Ninth Circuit observed that the defendant had, in
fact, “actively pursued judicial review” and therefore was not deprived of judicial review for
purposes of Section 1326(d).207 The court noted that the defendant’s claim that his proceedings
were unfair on the ground that the immigration judge did not notify him of possible entitlement to
voluntary departure was unpersuasive, as the defendant’s attorney had made him aware of this
potential form of relief.208
Although not binding, an example of a successful challenge to an underlying order of removal
post-Palomar-Santiago is a 2022 district court decision, United States v. Sam-Pena, in which the
district court concluded that the defendant demonstrated that he had no available administrative
remedies, that his removal proceedings deprived him of opportunity for judicial review, and that
the underlying removal order was fundamentally unfair.209 The district court agreed with the
defendant that he satisfied Section 1326(d)(1)’s requirement “because he had no available
administrative remedies where he could contest the immigration officer’s [legal] determination
that his prior conviction [of kidnapping] was an aggravated felony.”210 The defendant had been
removed through expedited removal and was informed that he could challenge factual
conclusions but had not been explicitly informed that he could challenge legal conclusions
underlying his removability.211 The district court also agreed that the government did not carry its
burden to establish that the defendant made a valid waiver of his right to pursue judicial review.212
The defendant claimed the waiver was not explained to him in Spanish and no other evidence
sufficiently established that he knowingly waived his right to appeal.213 Lastly, the district court
concluded that the prior removal was “fundamentally unfair” because the underlying state
kidnapping conviction does not constitute an aggravated felony to support expedited removal.214
The Ninth Circuit did not weigh in on appeal, as the federal government voluntarily dismissed its
appeal.215
Vagueness Challenges
Some defendants have challenged their Section 1326(a) convictions as unconstitutionally vague,
but lower courts have generally rejected such claims.216 The Supreme Court has explained that
“as generally stated, the void-for-vagueness doctrine requires that a penal statute define the
206 Castellanos-Avalos, 22 F.4th at 1148.
207 Id. at 1148 (rejecting the defendant’s reliance on United States v. Rojas-Pedroza, 716 F.3d 1253 (9th Cir. 2013) in
arguing that the “IJ’s failure to advise him of his potential eligibility for voluntary departure constitute[d] a deprivation
of judicial review.”).
208 Id.
209 United States v. Sam-Pena, 602 F. Supp. 3d 1204, 1212 (D. Ariz. 2022), appeal dismissed, No. 22-10141, 2022 WL
17403200 (9th Cir. Aug. 30, 2022).
210 Id. at 1208–09.
211 Id.
212 Id. at 1209–12.
213 Id. at 1209.
214 Id. at 1212.
215 United States v. Sam-Pena, No. 22-10141, 2022 WL 17403200 (9th Cir. Aug. 30, 2022).
216 See, e.g., United States v. Marte, 356 F.3d 1336, 1341 (11th Cir. 2004); United States v. Ayala, 35 F.3d 423, 424
(9th Cir. 1994), cert. denied, 514 U.S. 1019 (1995); United States v. Meraz-Valeta, 26 F.3d 992 (10th Cir. 1994),
overruled on other grounds, United States v. Aguirre-Tello, 353 F.3d 1199 (10th Cir. 2004); United States v.
Whittaker, 999 F.2d 38 (2d Cir. 1993).
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criminal offense with sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”217
In rejecting the defendant’s argument that his “found in” conviction was unconstitutionally
vague,218 the Second Circuit explained that the “found in” provision sufficiently informs a
previously removed alien who enters without permission that his or her conduct is unlawful,
thereby providing “sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”219
The Ninth Circuit has also found vagueness arguments unpersuasive, concluding that the
provision does not “contain any ambiguity at all.”220 The court further explained, “To avoid being
‘found in’ the United States, a deported alien can either not re-enter the United States or, if he has
already re-entered the United States, he can leave.”221
Penalties, 8 U.S.C. § 1326(a)
A conviction for reentry carries a punishment of a fine222 and a term of imprisonment for up to
two years for most defendants.223 As shown in Table 1, an individual may be subject to a
heightened criminal penalty in the case of prior criminal history or prior removal on certain
grounds.
Table 1. Section 1326(a) Penalties
Prior Activity
Penalty
No relevant history
Fine and/or no more than 2 years imprisonment
Conviction follows three or more misdemeanors
involving drugs or crimes against the person
Fine and/or imprisonment up to 10 years
Conviction follows a felony
Fine and/or imprisonment up to 10 years
Conviction follows aggravated felony
Fine and/or imprisonment up to 20 years
Conviction follows removal on terrorist grounds
Fine and/or imprisonment up to 10 years
Conviction follows removal prior to completion of a
term of imprisonment in accordance with 8 U.S.C.
§ 1231(a)(4)(B) and enters, attempts to enter, or is
found in the U.S. without permission from the Attorney
General
Fine and/or imprisonment up to 10 years
Source: 8 U.S.C. § 1326(a), (b).
Select Considerations Regarding Asylum
Some defendants charged with improper entry offenses have claimed that prosecutions brought
against them conflict with principles of asylum established by international treaty obligations and
217 Kolender v. Lawson, 461 U.S. 352, 357 (1983).
218 Whittaker, 999 F.3d at 42.
219 See id. (citing United States v. McElroy, 910 F.3d 1016, 1021 (2d Cir. 1990).
220 Ayala, 35 F.3d at 425 (9th Cir. 1994).
221 Id.
222 In the absence of an amount specified in Section 1326, a person convicted under this statute may be subject to a fine
not more than $250,000 or potentially an alternative fine of twice the amount of pecuniary gain from the offense or
pecuniary loss to a person other than the defendant. 18 U.S.C. § 3571.
223 8 U.S.C. § 1326(a).
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federal statute.224 Asylum is a humanitarian-based discretionary form of relief from removal for
an applicant who establishes past persecution or a well-founded fear of future persecution in his
or her country of origin or last country of residence on account of a protected ground, including
race, religion, nationality, membership in a particular social group, or political opinion.225
Federal Statute
Federal statute provides that an alien may apply for asylum. Section 1158(a)(1) of Title 8 reads:
Any alien who is physically present in the United States or who arrives in the United States
[] whether or not at a designated port of arrival ... [] irrespective of such alien’s status, may
apply for asylum in accordance with this section or, where applicable, section 1225(b) of
this title.226
This provision contemplates that an alien who intends to apply for asylum might enter the United
States outside of designated ports of entry not in accordance with immigration law, as the
statutory text includes “whether or not at a designated port of arrival.”227 Even though individuals
who surreptitiously enter the United States are eligible to apply for asylum, lower courts have
concluded that claimed refugee or asylum status does not preclude criminal prosecution. In one
case, the Fifth Circuit reasoned that asylum seekers are “aliens under 8 U.S.C. § 1325(a)” and that
“qualifying for asylum under 8 U.S.C. § 1158 would not change ... alien status.”228 One district
court stated that “a plain reading of the statutes suggests that ... Congress chose not to grant
immunity to asylum seekers who face criminal prosecution.”229
International Treaty Obligations
Defendants charged with improper entry or reentry have argued that prosecution violates rights
bestowed by the United Nations Convention Relating to the Status of Refugees
(“Convention”),230 that is, the right to seek asylum, the prohibition against penalties for irregular
224 See, e.g., United States v. Vasquez-Hernandez, 924 F.3d 164, 168 (5th Cir. 2019); United States v. Ramirez-Ortiz,
370 F. Supp. 3d 1151, 1154–55 (S.D. Cal. 2019).
225 8 U.S.C. 1158(b)(1)(A) (“The Secretary of Homeland Security or the Attorney General may grant asylum to an alien
who has applied for asylum in accordance with the requirements and procedures established by the Secretary of
Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney
General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.”). The INA
defines a refugee as
(A) any person who is outside any country of such person's nationality or, in the case of a person
having no nationality, is outside any country in which such person last habitually resided, and who
is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the
protection of, that country because of persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social group, or political opinion, or (B) in
such special circumstances as the President after appropriate consultation (as defined in section
1157(e) of this title) may specify, any person who is within the country of such person’s nationality
or, in the case of a person having no nationality, within the country in which such person is
habitually residing, and who is persecuted or who has a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or political opinion.
Id. § 1101(a)(42)(A).
226 Id. § 1158(a)(1).
227 East Bay Sanctuary Covenant v. Trump, 993 F.3d 640, 669 (9th Cir. 2021).
228 Vasquez-Hernandez, 924 F.3d at 169.
229 Ramirez-Ortiz, 370 F. Supp. 3d at 1155–56.
230 Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137.
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entry, and the principle of nonrefoulement.231 Although the United States did not sign the
Convention, it acceded to the 1967 Protocol Relating to the Status of Refugees (Protocol), which
binds parties to comply with the substantive provisions of articles 2 through 34 of the
Convention.232 Article 31(1) in particular mandates that signatories “shall not impose penalties”
because of a refugee’s “illegal entry or presence.”233
The 1967 Protocol, however, does not impose obligations enforceable under domestic law. When
the United States signs a treaty, the treaty is either “self-executing” or “non-self-executing.”234 A
self-executing treaty is considered to have the force of U.S. domestic law without the need for
implementing legislation.235 A non-self-executing treaty is not directly enforceable in U.S.
courts.236 Indeed, federal courts have held that the Protocol is not self-executing for domestic law
purposes and thus creates no judicially enforceable rights or duties.237 Accordingly, implementing
legislation, including 8 U.S.C. § 1158, governs the availability of asylum for individuals.
As relevant to prosecutions under Sections 1325(a) and 1326(a), lower courts have not been
receptive to arguments that prosecution for improper entry or reentry contravenes international
obligations, pointing to the fact that the 1967 Protocol does not grant judicially enforceable
domestic rights.238 Additionally, several district courts have ruled that Article 31(1) cannot serve
as a defense to prosecution.239
Select CRS Products
•
CRS Report R45539, Immigration: U.S. Asylum Policy, by Andorra Bruno
•
CRS Legal Sidebar LSB10582, Asylum Processing at the Border: Legal Basics, by Ben Harrington
•
CRS Report R46755, The Law of Asylum Procedure at the Border: Statutes and Agency Implementation, by Ben
Harrington
•
CRS In Focus IF10861, Global Human Rights: Multilateral Bodies & U.S. Participation, by Michael A. Weber
231 See, e.g., Ramirez-Ortiz, 370 F. Supp. 3d at 1154–55.
232 See INS v. Stevic, 467 U.S. 407, 416 (1984); Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 2009).
233 Specifically, Article 31(1) provides: “The Contracting States shall not impose penalties, on account of their illegal
entry or presence, on refugees, who, coming directly from a territory where their life or freedom was threatened in the
sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without
delay to the authorities and show good cause for their illegal entry or presence.”
234 The Supreme Court “has long recognized the distinction between treaties that automatically have effect as domestic
law, and those that—while they constitute international law commitments—do not by themselves function as binding
law.” Medellín v. Texas, 552 U.S. 491, 504 (2008). “While treaties may comprise international commitments ... they
are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention
that it be self-executing and is ratified on these terms.” Id. at 505 (citation and internal quotation marks omitted). For a
discussion on the effect of international law and agreements on the United States, see CRS Report RL32528,
International Law and Agreements: Their Effect upon U.S. Law, by Stephen P. Mulligan.
235 Medellín, 552 U.S. at 505.
236
Id.; see also Haitian Refugee Ctr., Inc. v. Baker, 949 F.2d 1109, 1110 (11th Cir. 1991) (“The language of the [1967]
Protocol and the history of the United States' accession to it leads to the conclusion that Article 33 is not self-executing
and thus provides no enforceable rights to the Haitian plaintiffs in this case.”), cert. denied, 502 U.S. 1122 (1992).
237 See id.; Bertrand v. Sava, 684 F.2d 204, 218–19 (2d Cir. 1982).
238 See Haitian Refugee Ctr., Inc. v. Baker, 949 F.2d 1109, 1110 (11th Cir. 1991) (“The language of the [1967] Protocol
and the history of the United States' accession to it leads to the conclusion that Article 33 is not self-executing and thus
provides no enforceable rights to the Haitian plaintiffs in this case.”); Sava, 684 F.2d at 218–19.
239 See, e.g., United States v. Ramirez-Ortiz, 370 F. Supp. 3d 1151, 1155 (S.D. Cal. 2019); United States v. VelazquezLuna, No. 18-mj-11463, 2019 WL 338947, at *2 (S.D. Cal. Jan. 28, 2019) (ruling that criminal defendant could not rely
on Article 31(1) to challenge his prosecution under Section 1325(a)(2)); United States v. Munoz, No. CR-17-1078,
2017 WL 4922047, at *3 (D. Ariz. Oct. 30 2017).
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Considerations for Congress
Congress has broad power to establish rules for the admission, removal, and presence of aliens,
and these rules are buttressed by a multifaceted enforcement scheme. Congress may elect to
utilize its legislative authority to amend the INA’s statutory scheme that certain individuals who
undermine immigration rules by entering or reentering the United States in violation of law are
subject to criminal liability.
This section discusses some key areas of focus that may be of interest to Congress as relevant to
Sections 1325(a) and 1326(a), along with a sample of bills introduced in the 116th, 117th, and
118th Congresses.240
Entry
As discussed earlier, the INA does not define or further extrapolate on the meaning of entry in the
context of Sections 1325(a) and 1326.241 Courts generally agree that entry requires the coming of
an alien from a foreign port or place.242 However, in the absence of guidance from the Supreme
Court, lower courts have not come to a consensus on whether an alien must “enter free from
official restraint.”243 Further, courts disagree over what constitutes official restraint.244
Due to the circuit divide over the principle of freedom from official restraint, prosecutorial
outcomes may differ in the case of aliens observed by federal authorities unlawfully crossing the
border depending on where a defendant is charged (e.g., unlawful entry over the border into
Arizona versus unlawful entry over the border into Texas). Congress may opt to utilize its
legislative authority to clarify the meaning of entry, particularly whether Sections 1325(a) and
1326(a) require or do not require an alien to enter free from official restraint for criminal liability
to attach. Alternatively, Congress may determine that the current versions of Sections 1325(a) and
1326(a) appropriately encompass entries that arise in a variety of contexts.
“Found” in the United States
As discussed above, the criminal offense of being “found in” the United States after having
unlawfully reentered the country under Section 1326(a) raises distinct legal issues that might be
of interest to lawmakers.245 The provision poses some difficulties for reviewing courts relating to
the statute of limitations for Section 1326(a) prosecutions.246 When the statute of limitations is
triggered controls whether and when an alien who has remained unlawfully in the United States,
potentially for a long period of time, can be prosecuted under Section 1326(a).
240 This discussion is not exhaustive of areas of potential focus for Congress. For instance, a potential consideration for
Congress might consist of amending Section 1325(a) to extrapolate on whether an alien who improperly enters the
United States between ports of entry is liable under Section 1325(a)(2)’s prohibition on entry without inspection, in
addition to liability under Section 1325(a)(1) for entering the United State at a time or place other than as designated by
immigration officers. See supra discussion pp. 12-13 “Location of Violation”.
241 See supra discussion pp. 4-5 ““Entry” for Purposes of Improper Entry and Reentry”.
242 See id.
243 See supra discussion pp. 7-9 “Establishing Entry”; supra discussion p. 16 “Establishing Entry”.
244 See id.
245 See generally “Illegal Reentry, 8 U.S.C. § 1326(a)”.
246 See supra discussion pp. 20–22 “Statute of Limitations”.
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Courts have generally held that the statute of limitations starts to run when immigration
authorities actually discovered or should have discovered a previously removed alien.247 Congress
may consider clarifying what it means to be “found” in the United States, as well as whether
being “found” is limited to discovery by immigration officers or potentially even other law
enforcement.
In addition, although it is well established that Section 1326(a)’s “found in” provision applies to
previously removed aliens encountered in the United States after an unauthorized reentry, it is
mostly unclear whether the provision applies to previously removed aliens who entered the
United States with permission but then remain in violation of law.248 At least one circuit court has
stated that criminal liability attaches to an alien who enters with permission but remains beyond
the authorized period of time.249 Other circuits have not weighed in on the matter but have
indicated that an alien who remains after the period of authorization might be culpable under
Section 1326(a).250 Congress may elect to clarify whether this criminal offense applies to
previously removed aliens who enter the country with permission by immigration officers but
then remain in the country after the period of authorization expires. Alternatively, Congress might
determine that the current version of the statute appropriately encompasses conduct that may arise
in a variety of contexts.
Asylum
A potential area of interest of Congress may be whether individuals who unlawfully enter the
United States but intend to seek asylum should be prosecuted for illegal entry or reentry. As
discussed above, the asylum statute, 8 U.S.C. § 1158, envisages that aliens who enter the United
States, including those who enter without authorization, are permitted to apply for asylum.251
Reviewing lower courts have concluded that, even though aliens who did not enter with
permission are eligible to apply for asylum, they are not shielded from criminal liability for the
unlawful entry itself.252 Lawmakers may consider amending Sections 1325(a) and 1326(a), or
alternatively Section 1158, to prohibit the prosecution of certain aliens who intend to seek
asylum. The Protect Asylum Seekers Act introduced in the 116th Congress would have exempted
asylum seekers from criminal prosecution for unlawful entry and reentry so long as the alien
“presents himself to an immigration officer or an asylum officer without unnecessary delay after
entering the United States, and indicates an intention to apply for asylum.... ”253 The exemption
from prosecution would not have applied to aliens who raise fraudulent asylum claims.254
In the alternative, Congress might conclude that aliens who unlawfully enter the United States,
regardless of an intention to seek asylum, should be subject to prosecution for improper entry as
part of the immigration enforcement scheme. Congress might determine that criminal liability for
improper entry generally deters unlawful entry and provides incentive for aliens, including those
who intend to seek asylum, to present themselves to immigration officers at a designated port of
entry. To provide clear guidance for courts and law enforcement, Congress could consider
247 See id.
248 See supra discussion pp. 18-19 “Remaining Unlawfully After a Lawful Entry”.
249 See id.
250 See id.
251 See supra discussion pp. 26 “Federal Statute”.
252 See id.
253 H.R. 9040, 116th Cong. § 2 (2020).
254 Id.
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amending Sections 1158, 1325(a), or 1326(a) to provide that an alien who states an intention to
seek asylum but unlawfully enters the United States is not immune to prosecution.
The 118th Congress has introduced legislation that would make certain aliens who improperly
enter the United States, regardless of their criminal liability under Sections 1325(a) and 1326(a),
ineligible to apply for asylum. The Border Enforcement and Security Act of 2023 would amend
Section 1158(a)(1) to provide that only aliens who arrive at designated ports of entry are eligible
to apply for asylum, meaning that those who enter at places other than a designated port of entry
(i.e., surreptitious crossing) would be barred from applying for asylum.255 In addition, this
proposed legislation would amend Section 1158(b)(2) to provide that aliens who are convicted of
offenses under Section 1326(a) are ineligible to apply for asylum.256 Likewise, under the Secure
and Protect Act of 2023, only aliens who enter through designated ports of entry would be
eligible to apply for asylum.257
Penalties
Like earlier Congresses, the 118th Congress has shown interest in the penalties imposed on those
who commit improper entry or illegal reentry. Congress might utilize its legislative authority to
amend penalties under these provisions.258 Alternatively, Congress could determine that penalties
currently imposed are sufficient.
Passed by the House of Representatives in the 118th Congress, the Secure the Border Act of 2023
would increase civil penalties under Section 1325(a) for improper entry at a time or place other
than as designated by immigration officers.259 Additionally, if enacted, the legislation would add
another provision to Section 1325 imposing criminal sanctions on aliens who are admitted into
the United States as nonimmigrants but fail to maintain nonimmigrant status for an aggregate of
ten days or more or otherwise fail to comply with conditions of such status.260
Introduced in the 117th Congress, the Stop Illegal Reentry Act (or “Kate’s Law”) would have
increased criminal penalties for certain aliens who reenter the United States without authorization
after removal or exclusion.261 In contrast, other legislation introduced in the 117th Congress
sought to “decriminalize migration.”262 The New Way Forward Act would have repealed criminal
penalties for improper entry and illegal reentry.263
255 H.R. 2640, 118th Cong. § 104 (2023).
256 Id. § 105.
257 S. 425, 118th Cong. § 3 (2023).
258 See supra discussion p. 14 “Penalties, 8 U.S.C. § 1325(a)”; supra discussion pp. 25-26 “Penalties, 8 U.S.C.
§ 1326(a)”.
259 H.R. 2, 118th Cong. § 601 (2023).
260 Id. Likewise, the Visa Overstays Penalties Act would increase civil penalties for improper entry at a time or place
other than as designated by immigration officers and establish new criminal sanctions for nonimmigrants who fail to
maintain status and remain in the United States without authorization. H.R. 2436, 118th Cong. § 2 (2023).
261 H.R. 3374, 117th Cong. § 2 (2021); S. 890, 117th Cong. § 2 (2021).
262 H.R. 536, 117th Cong. § 601 (2021); see also H.R. 5383, 116th Cong. § 601 (2019) (same).
263 H.R. 536, 117th Cong. § 601 (2021).
Congressional Research Service
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Immigration Crimes: Improper Entry and Reentry
Author Information
Kelsey Y. Santamaria
Legislative Attorney
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