In an August 30 chart that purported to “break[] down immigration plans in Congress,” the Rocky Mountain News mischaracterized current United States immigration law, inaccurately stating that “being in the United States without authorization” is a misdemeanor. The News was comparing what it claimed was current law to a provision in a 2005 House immigration bill that would make illegal presence in the United States a felony and could subject the estimated 11 million illegal immigrants currently in the United States to up to one year and one day in prison. In fact, under current law, illegal presence is not a criminal offense; it is a civil offense punishable by civil sanctions and deportation.

The House bill's felony provision helped provoke large protests in cities across the United States earlier this year. A competing Senate immigration bill, passed in May, does not criminalize illegal presence in the country.

The News chart was compiled by reporter Laura Frank and cited Congress and the Congressional Budget Office as sources. It compared the House and Senate bills as well as a “compromise” bill that has yet to be introduced. The chart inaccurately stated that the House bill “makes being in the United States without authorization a felony. Currently, it is a misdemeanor.” Elsewhere in the chart, the News claimed the House bill "[w]ould change illegal presence in the country from a misdemeanor to a felony."

While it is true that the House bill would attach felony penalties to an illegal alien's unlawful presence in the United States, current law does not -- as the News claimed -- subject those who are illegally present in the United States to criminal penalties, either misdemeanor or felony. As an April 6 Congressional Research Service report titled “Immigration Enforcement Within the United States” noted, “Being illegally present in the U.S. has always been a civil, not criminal, violation of the INA [Immigration and Nationality Act], and subsequent deportation and associated administrative processes are civil proceedings.”

The INA is the primary federal law governing naturalization and immigration to the U.S. Under section 1325 of the INA, it is currently a misdemeanor punishable by up to six months of imprisonment to enter the U.S. illegally. However, the INA provides no such criminal penalties for the estimated 11 million immigrants who are illegally present in the country:

(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.

The Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, sponsored by House Judiciary Committee chairman F. James Sensenbrenner (R-WI), would add persons who are “otherwise present in the United States in violation of the immigration laws” to the list of those punishable under this section and would impose felony provisions on all categories of immigrants covered under the section by changing the maximum imprisonment sentence from six months to “one year and a day.”

In a December 16, 2005, floor statement, Sensenbrenner explained that “under current law, illegal entry into the United States makes an alien subject to a Federal criminal misdemeanor with a maximum penalty of 6 months in prison. However, unlawful presence itself, such as by overstaying a visa, is not a criminal offense, but only a civil ground of inadmissibility.” Referring to the House immigration bill, Sensenbrenner added, “At the [Bush] administration's request, the base bill makes unlawful presence a crime, such as unlawful entry already is.”