Simone Lawson
The term illegal immigrant is used to describe foreign nationals who violate US immigration laws, either by entering the country unlawfully or by overstaying their visas. The US has an estimated 10.5 million unauthorized immigrants as of 2021, with two-thirds of adult immigrants having lived in the country for over a decade. The term illegal immigrant is controversial, with critics arguing that it connotes criminality and dehumanizes communities, while supporters claim it is more precise and concise than alternatives like undocumented. The legal definition of an illegal immigrant in the US is complex and subject to historical shifts, with Supreme Court rulings establishing constitutional rights for this group since the 19th century.
| Characteristics | Values |
|---|---|
| Term | "Illegal immigrant" or "undocumented immigrant" |
| Definition | Foreign-born non-citizens without current status to reside, work, or visit in the US |
| Population | 11 million in 2022, down from a peak of 12.2 million in 2007 |
| Countries of origin | Mexico, El Salvador, India, Guatemala, Honduras |
| Length of stay | Two-thirds of illegal adult immigrants had lived in the US for at least a decade as of 2016 |
| Visa status | Between 2007 and 2018, visa overstays accounted for a larger share of the growth in the illegal immigrant population than illegal border crossings |
| Legal status | Not having legal documentation to be in the US does not necessarily mean that individuals have no documents at all; they may have a birth certificate and passport from their home country, as well as US documents such as a driver's license or Social Security card |
| Rights | The US Supreme Court has ruled that K-12 students cannot be denied an education on the basis of immigration status; illegal immigrants also have Constitutional rights, including due process and equal protection under the law |
| State-level variations | Sanctuary cities adopt policies designed to avoid prosecuting people solely for being in the country illegally; states can also make legal residency status a requirement for employment and state services |
| Federal-level policies | The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) makes it an offense to hire individuals with knowledge that they are unauthorized aliens |
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What You'll Learn
Unauthorized border crossing
The Department of Homeland Security defines a "gotaway" as a person who enters the US illegally and is not turned back or apprehended. "Gotaways" are recorded when cameras or sensors detect border crossings, but no migrants are found, or agents are unavailable to respond. It is difficult to determine the exact number of unauthorized border crossings, as some migrants escape detection entirely.
Border encounters, which include apprehensions, inadmissibles, and expulsions, provide valuable data for the government to estimate the number of individuals illegally entering the country. Apprehensions refer to the temporary detainment of individuals by the US Border Patrol who are not lawfully in the US, while inadmissibles are individuals seeking lawful admission but are determined to be inadmissible for various reasons. Title 42 expulsions refer to individuals expelled to their country of last transit or home country in the interest of public health.
The US Border Patrol was officially created in 1924, and its duties were broadened to include guarding the coastline in 1925. Unauthorized border crossings have been a significant issue for many decades, with various measures implemented to prevent them. From 2000 to 2012, the average annual unauthorized entries exceeded 1.4 million people, while the average dropped to around 190,000 from 2013 to 2020 due to increased apprehension rates.
The unauthorized immigrant population in the US has fluctuated over the years, reaching 12.2 million in 2007, dropping to 10.5 million in 2021, and then increasing to 11 million in 2022. It is important to note that unauthorized border crossings are just one aspect of illegal immigration, as visa overstays also contribute significantly to the growth of the unauthorized immigrant population.
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Visa overstaying
The consequences of overstaying a visa can be severe and include deportation, re-entry bans, and loss of immigration benefits. Overstaying can also lead to complications for future immigration applications, such as ineligibility for future visas or severe penalties depending on the length of overstay. In some cases, individuals may be barred from re-entering the US for up to ten years.
To avoid these consequences, it is important for visa holders to proactively plan and adhere to their visa timelines. Seeking legal advice from immigration attorneys or counsellors can help individuals understand their rights and options, and develop strategies to mitigate any potential issues.
It is worth noting that visa overstays are treated differently from illegal entries under US immigration law. While visa overstays involve individuals who were legally permitted entry but failed to depart upon visa expiration, illegal entry involves unauthorized border crossings or the use of fraudulent documentation to gain entry.
In summary, visa overstaying is a serious matter that can have significant ramifications for an individual's immigration status and future prospects in the United States. Proactive measures and legal guidance are crucial to navigate these complex issues and minimize potential negative consequences.
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Deportation and asylum
An illegal immigrant in the US context refers to foreign nationals who violate US immigration laws. This can occur through unlawful entry or by overstaying their visas, parole, or temporary protected status.
The legal right to seek asylum in the US is a complex and challenging process, with the right itself under threat. Asylum seekers are individuals who flee their home countries in search of safety and protection elsewhere due to conflict, disaster, persecution, or weak rule of law. Despite the existence of established rights under US and international law, the US government has imposed severe restrictions on asylum access at the border.
In January 2025, President Trump issued Proclamation 10888, indefinitely suspending the right to seek asylum at the southern border, declaring arriving individuals as an "invasion." This order applies even to those seeking asylum at official entry points, unaccompanied children, and victims of human trafficking.
There are two primary ways to apply for asylum in the US: affirmatively and defensively. Affirmative asylum is for those not in removal proceedings, and they may apply through the Department of Homeland Security's US Citizenship and Immigration Services (USCIS). A USCIS asylum officer interviews the applicant, and if found eligible, they may grant asylum. If asylum is not granted, the applicant is referred to immigration court for removal proceedings, where they can renew their asylum request through the defensive process.
As of mid-2022, about 720,000 individuals awaited decisions on over 500,000 affirmative asylum applications. Temporary Protected Status provides protection from deportation for those who cannot safely return to their countries due to civil unrest, violence, or natural disasters. Deferred Action for Childhood Arrivals (DACA) also offers deportation protection for those brought to the US as children before 2007.
If an individual is barred from receiving asylum, they may still be eligible for more limited forms of protection, such as withholding of removal under the Immigration and Nationality Act or the Convention Against Torture. These protections prohibit deportation to the individual's home country, but they do not provide a path to lawful permanent resident status.
Asylum seekers must navigate a challenging process involving multiple government agencies and strict requirements. Despite the difficulties, asylum seekers have the legal right to request asylum at the US border without facing criminalization, separation from their children, or being turned back.
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Immigration terminology
The terminology used to describe immigration status is highly contested. The term "illegal immigrant" is often used by politicians and the media, including outlets such as the New York Times and the Associated Press. However, immigrant rights and advocacy groups argue that this term is misleading, inaccurate, and dehumanizing, preferring terms such as "undocumented," "unauthorized," "non-citizens," "without status," or "unlawfully present."
The debate over the use of "illegal immigrant" centres around the legal and moral implications of the term. Firstly, critics argue that the term is legally misleading because it implies criminality, when in fact, being in the US without proper documents is a civil offence, not a criminal one. Secondly, it is argued that the term is legally inaccurate because it presupposes guilt, akin to calling a defendant "guilty" before a verdict. Thirdly, the term is legally imprecise because it implies permanence, whereas immigration status is fluid and can change depending on individual circumstances. Finally, critics argue that the term is technically inaccurate because it labels the individual rather than their actions.
The term "undocumented immigrant" is also contested. Proponents of the term "illegal immigrant" argue that "undocumented" obscures the legal reality and minimizes the gravity of the situation. They claim that "undocumented" implies a simple paperwork issue, whereas what these individuals lack is the fundamental right to be in the United States.
In addition to "illegal immigrant" and "undocumented immigrant," other terms used to describe immigration status include:
- Alien: A foreign-born person in the United States. This term has been used in legal contexts and by government sources. However, it has also been criticized as dehumanizing.
- Unauthorized immigrant: This term is used by sources such as the Pew Research Center to describe individuals who are in the country unlawfully or have overstayed their visas.
- Undocumented American: This term is used to describe foreign-born individuals who do not have legal documentation to reside in the US but may have other forms of identification, such as a birth certificate or passport from their home country.
- Non-citizen: This term refers to foreign-born individuals who are not US citizens but may have legal status to reside, work, or visit the US.
- Sanctuary cities: Cities that adopt policies designed to avoid prosecuting individuals solely for being in the country illegally.
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Immigration laws and offences
Under US immigration law, there are several ways in which an individual may be considered an illegal immigrant or be in violation of immigration laws. These include:
- Entering the United States unlawfully or without proper documentation. This includes crossing the border unlawfully or entering at a time or place other than as designated by immigration officers.
- Overstaying their visa or remaining in the country after the expiration of their parole or temporary protected status. Visa overstays have accounted for a larger share of the growth in the illegal immigrant population in recent years.
- Marriage fraud, which involves entering into a marriage for the purpose of evading immigration laws. This is a criminal offence and can result in imprisonment and/or fines.
- Establishing a commercial enterprise for the purpose of evading immigration laws is also a criminal offence and can lead to imprisonment and/or fines.
- Failure to depart the country when required to do so, or fleeing immigration checkpoints.
The consequences of violating immigration laws can be severe and may include fines, imprisonment, and deportation. The US government has also been known to subject individuals seeking asylum or protection to criminal prosecution and incarceration, despite international legal obligations to protect migrants fleeing persecution. The prosecution of individuals for immigration offences can have detrimental effects on family members, including separation and incarceration.
It is important to note that the legal landscape of immigration in the US is constantly evolving, and there have been various Supreme Court rulings that have established the Constitutional rights of illegal immigrants. Additionally, states have the power to make legal residency status a requirement for employment and state services.
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Frequently asked questions
An illegal immigrant is a foreign national who violates US immigration laws by entering the country unlawfully or by overstaying their visa.
Unauthorized immigrants are those who have entered the US lawfully but have remained after the expiration of their visas. Illegal immigrants, on the other hand, have entered the country unlawfully.
Unauthorized immigrants do not have the right to reside, work or visit in the US. They are also referred to as undocumented immigrants.
Being an illegal immigrant in the US can lead to criminal penalties. The Alien Registration Requirement (ARR) mandates that all aliens in the US register with the government and comply with the Immigration and Nationality Act (INA). Failure to do so can result in civil and criminal enforcement actions.
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