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Is Being an Undocumented Immigrant a Crime?

Are you an undocumented immigrant? Have you been accused of a crime? Please remember that you still have constitutional rights, including the right to counsel if accused of a crime. When people are accused of a crime they are often unaware that they even have these legal rights. Also being undocumented is not a crime. 

What is the Difference Between Illegal and a Undocumented Immigrant?

Being present in the United States without legal documentation is in itself not a crime. Though some of the ways of entering the US may be considered federal crimes, the act of being here without legal documentation is not considered a federal crime. There is a vast percentage (45%) of undocumented people that do not enter this country illegally. They may enter legally but may overstay their visa, work without authorization, etc. 

Being an undocumented person in the US is only punishable legally if someone has already left or been deported and has reentered without permission. They may be subject to imprisonment of up to 2 years. 

Anti-immigrant rhetoric and the rise of Xenophobia in the United States have led some to believe that undocumented immigrants are considered “illegal aliens” under federal law. This is not accurate. The term does not appear anywhere in the federal immigration and nationality act. A conviction of a crime may subject an immigrant to removal from the United States, even if he or she is a lawful permanent resident. In contrast, immigrants who are undocumented but have not been convicted of any crime are not referred to as “criminal aliens” under the immigration laws.

Immigrants are not more likely to commit a crime, and actually are less likely to commit a crime than the general population. Undocumented immigration has risen over recent years, and violent crimes have actually dropped.

Undocumented immigrants still have constitutional rights, including the right to counsel if accused of a crime. The constitution uses the term “person” or “people” living within its jurisdiction,, not the word “citizen”. Many undocumented people are unaware that they even have these legal rights. However, they still have the right to equal protection of the law and that of due process (fair treatment in the judicial system).

For instance, under fourth amendment law, undocumented people can refuse officers a search of their home, unless they have a valid search warrant, or in the event that they have been given permission. There are immigrant focused law groups and nonprofits that are focused on ensuring people living in the US without documents still know their legal rights and have protection in the event that they are charged with a crime. 

If you or a loved one have been accused of a crime and don’t have proper documentation, then please contact the immigration and criminal defense attorneys at Dhar Law LLP. You still have constitutional rights, including the right to counsel if accused of a crime. We help people accused of crimes understand their legal rights. 


Have you or a family member been charged or arrested? It’s important not to make mistakes early on in your case. Download our PDF on the top 3 things to do to help your defense or if you have been arrested by the State Police or FBI or you are the subject of an FBI Arrest Warrant.

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Heading up the firm, Vikas Dhar is widely recognized as a leader in the New England legal community. An accomplished business litigator and a “Top 40 Under 40” criminal defense attorney, he has also been honored as a New England Super Lawyer/Rising Star in the area of White-Collar Criminal Defense for each of the past six years by Boston Magazine.

I have the power and the skill to be able to save people from themselves. I can be your guide during the darkness. I can hold your hand and navigate you out of the darkness into the light.

— Vikas Dhar
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