When Rep. Pramila Jayapal (D-WA) told 1.3 million viewers on X that “Being undocumented is NOT a crime,” she sparked a viral debate over one of the most misunderstood points in U.S. immigration law — and one that is both technically true and misleading depending on the context.

What Jayapal Said

 

Her statement came amid renewed attention on border enforcement measures in Arizona and Texas, where state lawmakers have sought to criminalize illegal entry at the local level. Responses to her post on X varied from hailing her remark as a defense of immigrant rights to accusations of downplaying violations of federal law.

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However, determining the correctness of what Jayapal said depends on what she meant.

What Federal Law Says About Illegal Entry

Under 8 U.S. Code § 1325, titled “Improper entry by alien,” federal law makes it a misdemeanor to enter the United States without authorization. The statute applies to anyone who “enters or attempts to enter the United States at any time or place other than as designated by immigration officers” or who “eludes examination or inspection.” A first offense can result in up to six months in federal prison or a fine; repeat offenses can carry a penalty of up to two years.

However, once inside the country, an individual’s continued presence without legal status, for example, overstaying a visa, is treated as a civil violation rather than a criminal offense. Deportation and other immigration proceedings fall under the civil legal system, meaning they don’t carry criminal penalties such as jail time.

The Supreme Court reaffirmed this principle in Arizona v. United States (2012), striking down an Arizona law that sought to make unlawful presence a state crime. The Court held that immigration enforcement is primarily a federal power and that Congress has chosen to treat unlawful presence as a civil, rather than a criminal, matter.

The Law on Illegal Reentry

For migrants who have already been deported or removed, 8 U.S. Code § 1326 makes it a felony to reenter the United States without permission. Penalties can range from two years in prison for standard cases to ten years for those with prior felony convictions, and up to twenty years for individuals previously removed following an aggravated felony.

Prosecutions under §§ 1325 and 1326, known respectively as “illegal entry” and “illegal reentry,” are among the most common federal crimes in the United States, comprising as much as 65% of all federal prosecutions in recent years, according to the American Immigration Council.

State-Level Efforts: Texas, Arizona, California, and New Mexico

Despite the federal government’s exclusive authority over immigration, several border states have attempted to create parallel laws.

  • Texas: In 2023, the Texas legislature passed Senate Bill 4, which allows state officers to arrest migrants suspected of entering the state illegally and judges to order them returned to Mexico. The law was blocked by federal courts, with the Fifth Circuit ruling in 2025 that SB 4 conflicted with federal immigration authority. Texas Attorney General Ken Paxton vowed to appeal, insisting the state has the right to defend its border, Texas Scorecard reported.
  • Arizona: Voters approved Proposition 314 in 2024, known as the “Secure the Border Act.” The measure sought to make illegal entry from Mexico a state crime, but as the ACLU website notes, this section of the law has not taken effect because federal courts have blocked similar laws elsewhere. Other parts of the law, such as verification for public benefits and penalties for using false identification, are enforceable.
  • California and New Mexico: Both states have declined to enact identical criminal laws on immigration, maintaining policies that prioritize cooperation with federal agencies only when serious crimes are involved. California has reinforced its “sanctuary state” policies since 2017, while New Mexico has largely aligned with federal enforcement protocols without adding state penalties.

Concomitant Crimes

It is difficult to remain in the United States without legal status without committing additional crimes, regardless of how one entered. Some states, such as Texas, do not issue driver’s licenses to illegal aliens. This can make it harder to move about the state without committing another crime that is downstream from a lack of legal status.

Moreover, obtaining employment can necessitate aliens committing other crimes, such as fraudulently obtaining Social Security numbers. An estimated 75% of all illegal aliens use fraudulently obtained Social Security numbers (SSNs) to obtain jobs and to pay taxes, according to a 2015 report from the Center for Immigration Studies.

The Bottom Line

So is Jayapal right? Partially.

It is true that being undocumented, that is, being present in the U.S. without valid immigration papers, is not a crime under federal law. But how a person became undocumented matters. Entering the country illegally without inspection violates federal criminal statutes, while overstaying a visa or losing status falls into the civil category.