No, it is a civil offense punishable by a $50 fine that may result in deportation.
However, a recent article by theologian Terence Sweeney invites readers to suppose illegal immigration did in fact violate the criminal law: committing it might still not actually count as a crime. Crimes come with defenses; necessity is one of the most well-established, and people who immigrate illegally often have a strong claim of necessity.
Unlike some libertarians, Sweeney rejects open borders, accepting the legitimacy of deporting both immigrants who commit crimes and those who break immigration laws without a particularly serious reason. Citing Catholic natural law thought and social teaching, Sweeney defends the principles that legitimate laws impose moral obligations on people and that immigration laws are not unjust per se.
But laws are rarely absolute. Sweeney turns to laws against theft. Though stealing violates both the law and morality, Sweeney agrees with the medieval scholar Saint Thomas Aquinas that theft is not always against the law. When a starving person faced with no other option steals bread to survive, this “is not only justified, it is not theft.” (Sweeney could have added that American criminal law agrees: law students know that the necessity defense lets someone break into an empty cabin in order to keep from freezing to death.)
The necessity defense is not easy to raise. In a country with family support, charitable assistance, the kindness of strangers, and public welfare as alternatives to stealing, lifting a loaf from the grocery store will rarely be defensible. Still, the underlying principle that strict human necessity overrides the law’s normal prerogatives retains its force.
Comparing immigration to theft, Sweeney says, “A person in manifest and urgent need who chooses to leave their homeland for another is fundamentally not that different than a person in genuine hunger…. [N]eed gives them a right to trespass on our nation.”
Sweeney does not believe the right answer is to simply ignore immigration laws; he criticizes the “social destabilizing process” that would result. Rather, he endorses comprehensive reform marked by
continued border control, paths to citizenship for illegal immigrants who are not criminals, deportation for those who are, and a large increase in funding for immigration courts that can help determine which immigrants have urgent and manifest need. Along these lines, we need to reopen and expand our refugee program and to expand legal pathways for migrants. Further, we should recommit to robust foreign aid and development support so that the right not to migrate is supported while reducing the number of needy migrants.
There are shortcomings to Sweeney’s analysis. He gives foreign aid too much credit, and the question of which countries should be responsible for receiving how many migrants in need is a complexity he does not address. Further, as noted above, some libertarians will disagree with his support for even reformed limits on legal immigration.
Regardless, Sweeney shows that illegal immigration’s illegality does not prove its criminality or immorality. In a time when immigrants are demonized—especially those who arrive here without prior government authorization—his reminder of their humanity is important. So are his hopes for immigration reforms, however unlikely they seem to be enacted any time soon.