Eric S. Fish (University of California, Davis – School of Law) & Doug Keller have posted Fabricating the Crime of Undocumented Presence on SSRN. Here is the abstract:
In 2025, the Trump Administration’s Office of Legal Counsel declared that it is a federal crime simply to be an undocumented immigrant. But Congress has enacted no such crime. Congress has made it a crime, codified at 8 U.S.C. § 1325, for an immigrant to enter the United States in a manner that “eludes examination or inspection.” For nearly 100 years, this “elude” offense has been understood to occur only while an immigrant is entering the country. If you cross into the United States at a port of entry by concealing yourself in the trunk of a car, you have committed this crime. But Trump’s OLC has reinterpreted this crime as a continuing offense. Under this new reading, an immigrant is always eluding examination from the moment they enter the country until the moment they are arrested. The OLC’s interpretation thus converts the crime of illegal entry into the crime of undocumented presence. This has major implications for federal immigration prosecutions. Illegal entry, already the most-charged crime in the federal system, can now be prosecuted in non-border states. To date, dozens of immigrants in states like Kansas, Oklahoma, and Utah have been convicted under this novel theory. In addition, this theory eliminates any statute of limitations for illegal-entry prosecutions, and it significantly expands Immigration and Customs Enforcement’s power to conduct searches.
This Article shows that the OLC’s interpretation is baseless. It does so by examining the history of the illegal-entry statute, including through original research into documents from the National Archives. This history reveals that when illegal entry was criminalized, legislators, judges, and executive-branch officials all clearly understood it to occur only at the border. That interpretation was memorialized in numerous legislative and administrative documents during and after the law’s enactment. It was also reflected in prosecution patterns and judicial rulings. And it is confirmed by a straightforward analysis of the statute’s text and structure. The Trump Administration has thus been convicting immigrants of a non-existent crime. Unfortunately, however, being wrong on the law will not necessarily stop them. Federal immigration prosecutions suffer from a fundamental rule-of-law deficit. It is hard for defendants to argue that the charge doesn’t apply, because the system forces them to plead guilty quickly. This Article explores that problem and proposes a path for contesting the Trump Administration’s implausible interpretation.
Recommended.