Unpacking Trump Admin’s Claim That ‘All’ Undocumented Immigrants Are Criminals

On Jan. 28, 2025, U.S. President Donald Trump’s press secretary, Karoline Leavitt, made her first appearance at a White House press briefing (archived).

In answer to a question about how many of the immigrants arrested by U.S. Immigration and Customs Enforcement (ICE) during the first week of Trump’s second term in office had criminal records, Leavitt said: 

All of them, because they illegally broke our nation’s laws, and, therefore, they are criminals, as far as this administration goes. I know the last administration didn’t see it that way, so it’s a big culture shift in our nation to view someone who breaks our immigration laws as a criminal. But that’s exactly what they are. 

Leavitt also said that immigrants who illegally enter the U.S. or overstay their visa are “by definition a criminal” or “subject to deportation,” respectively. Illegal entry is defined as a crime under the U.S. Code, punishable by a fine or imprisonment. A U.S. Supreme Court opinion from 2012, however, established that it was not a crime for a “removable alien” to remain in the U.S. Therefore, simply being in the U.S. cannot form the basis for an immigrant being branded “criminal.” 

Leavitt’s claim that “all” immigrants without legal status are criminals also taps into a widely debunked theory that immigration in the U.S. has caused a surge in crime, or that immigrants commit more crime than people born in the U.S. NBC News figures, obtained by the network from an unnamed ICE official, showed that 613 of 1,179 arrests made on Jan. 26 were “criminal arrests,” though it was unclear if that meant the arrested people were found to have a criminal record. Though we have not independently confirmed that data, we have reached out to ICE for corroboration. A White House spokesperson merely repeated Leavitt’s “all of them” comments when asked to clarify the claim.

2 Justice Systems Govern Immigration 

Kathleen Campbell Walker, an immigration law expert and former president of the American Immigration Lawyers Association (AILA), said via email that Leavitt’s statement failed to recognize the difference between civil and criminal law penalties. 

In the criminal justice system, the government brings cases against defendants — people who allegedly committed a crime. Judges in a criminal court can find a person guilty of the alleged crime and punish them with imprisonment — jail time. 

According to the U.S. Code — the official codification of the general and permanent federal statutes of the U.S. — a person who illegally enters or reenters the U.S. can be punished by a fine and/or imprisonment by a criminal judge. Illegal entry is a misdemeanor and illegal reentry is a felony. Title 8 of the U.S. Code §1325 reads, in part:

(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts

Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

(b) Improper time or place; civil penalties

Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of—

(1) at least $50 and not more than $250 for each such entry (or attempted entry); or

(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.

While something like illegal entry is a crime and punishable by imprisonment, there are other ways to “break immigration laws,” for example by overstaying a visa, that do not result in criminal records. Walker said (emphasis added): 

The penalties for most immigration violations are only civil in nature. The civil penalty is being removable/deportable from the U.S. The process for removal can require an individual to be detained (immigration detention). Even though liberties are restrained, the person detained is not entitled to appointed legal counsel, which would be the case for federal criminal prosecutions. So, although the person is detained, they are subject to a CIVIL penalty of potential deportation/removal from the U.S.

The civil justice system handles lawsuits that involve one person, business or agency suing another. For example, the U.S. Department of Homeland Security (DHS) might initiate immigration court hearings with a person that it suspects has broken U.S. immigration law. However, the person will not be found guilty, like in a criminal court — instead, the punishment would be a civil penalty, like, for example, a fine or deportation.

Immigrants who entered the U.S. by legal or illegal means can be deported for a number of reasons, including if they overstay the terms of their visa. However, according to the aforementioned U.S. Supreme Court opinion from 2012: “As a general rule, it is not a crime for a removable alien to remain present in the United States.” Deportation is also not a punishment for a crime but rather a civil penalty, according to the Supreme Court.

Leavitt made two further statements about immigrants residing in the country illegally and crime. When asked if the administration’s deportations were targeting “violent offenders” and people with a criminal record first, Leavitt replied:

If you are an individual — a foreign national — who illegally enters the United States of America, you are by definition a criminal and so therefore you are subject to deportation. 

Here, Leavitt is correct that illegal entry is a crime, which makes someone who commits that crime a criminal. Wheeler made the distinction that a “criminal” in Leavitt’s statement must be defined as: “anyone who could be charged with a misdemeanor under federal law based on their actions” for the statement to be true. Participation in a crime is grounds for deportation, according to the U.S. government, corroborating the second half of Leavitt’s statement.

Leavitt also said in the Jan. 28 news conference that:

If an individual is overstaying their visa, they are therefore an illegal immigrant residing in this country, and they are subject to deportation.

Wheeler emphasized that overstaying a visa is itself not a criminal violation, which is also what the Supreme Court has repeatedly found. Overstaying a visa can result in a civil penalty, such as deportation, meted out through the civil justice system. Simply residing in the U.S. while being “removable” is not “a crime,” according to the Supreme Court.

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