Is being present in the United States in violation of the immigration laws a crime?

No. The act of being present in the United States in violation of the immigration laws is not, standing alone, a crime. While federal immigration law does criminalize some actions that may be related to

undocumented presence in the United States, undocumented presence alone is not a violation of federal criminal law. Thus, many believe that the term “illegal alien,” which may suggest a criminal violation, is inaccurate or misleading.

Entering the United States without being inspected and admitted, i.e., illegal entry, is a misdemeanor or can be a felony, depending on the circumstances. 8 U.S.C. § 1325 Links to an external site.. But many undocumented immigrants do not enter the United States illegally. They enter legally but overstay, work without authorization, drop out of school or violate the conditions of their visas in some other way. Current estimates are that approximately 45% of undocumented immigrants did not enter illegally. See Pew Hispanic Center, Modes of Entry for the Unauthorized Migrant Population Links to an external site. [May 22, 2006].

Undocumented presence in the United States is only criminally punishable if it occurs after an individual was previously formally removed from the United States and then returned without permission. 8 U.S.C. § 1326 (any individual previously “deported or removed” who “enters, attempts to enter, or is at any time found in” the United States without authorization may be punished by imprisonment up to two years). Mere undocumented presence in the United States alone, however, in the absence of a previous removal order and unauthorized reentry, is not a crime under federal law.

Source: 

https://www.aclu.org/files/assets/FINAL_criminalizing_undocumented_immigrants_issue_brief_PUBLIC_VERSION.pdf Links to an external site.