How Much Would You Pay to Stay in Federal Prison?

Of all the deterrents to illegal entry to the United States in the Immigration and Nationality Act (INA), one has the sharpest bite: prosecution for “improperly” entering this country or eluding immigration inspection, which federal prosecutors are increasingly using against aliens who have come illegally. Meanwhile, CBP Commissioner Rodney Scott is telling would-be migrants who are considering whether to hire smugglers to bring them here illicitly to save their money and stay home. Trust me — it’s good advice.

The Four Main Deterrents to Illegal Immigration

As I have explained in the past, deterrence is the key to border security, and Congress gave DHS four key tools to deter would-be migrants from entering illegally.

The first and most straightforward is fencing and other border impediments, which send a clear signal to would-be crossers and slow migrants as they attempt to move over the border illegally.

On day 1, the Biden administration sent its first (of many) signals it wasn’t interested in deterrence when the new president signed a proclamation “pausing” construction of new border infrastructure, which largely remained in place for the remainder of his term (costing U.S. taxpayers billions due to waste).

That Biden pause was so effective that in January 2023, then-Mexican President Andrés Manuel López Obrador thanked the president for not erecting additional barriers along his country’s northern border.

One year into Trump II, Scott announced his agency had made up for last time, completing 25 miles of new fencing with a goal of erecting 250 miles of new “smart wall” by the end of September.

The second key deterrent is detention, which is mandated for illegal migrants at the borders and ports, and which DHS under the second Trump administration has attempted to impose (with mixed success) on all aliens who entered illegally, regardless of how long they have resided here.

The third deterrent is civil prosecution of illegal migrants in removal proceedings under section 240 of the INA and their removal under section 241 of the act.

As of the end of March, 3.57 million-plus aliens were in removal, deportation, and exclusion proceedings in the nation’s 73 immigration courts, down thanks to the now-secure border from 3.925 million at the beginning of FY 2025 (four months before Biden left), while ICE reports that it deported more than 234,000 aliens from its custody in the first eight months of FY 2026, and nearly 320,000 others in FY 2025 (far too few for many critics).

Prosecutions for Illegal Entry and Reentry

Which brings me to the fourth and most effective border deterrent: prosecutions for illegal entry.

Each month, DOJ updates and publishes the “Prosecuting Immigration Crimes Report” (PICR), a tally of prosecutions various U.S. attorney’s offices have filed for violations of sections 274 (alien smuggling and related crimes), 275, and 276 (reentry after formal removal) of the INA.

Criminal violations of section 275 of the INA, captioned “improper entry”, are the most charged border-related crimes, and that section encapsulates includes three separate offenses.

Under section 275(a)(1), it’s a crime for an alien to enter or attempt to enter “at any time or place other than as designated by immigration officers”.

Section 275(a)(2) makes it a federal offense to “elude examination or inspection by immigration officers”.

And section 275(a)(3) includes a fraud element, criminalizing any attempt to enter the United States “by a willfully false or misleading representation” or by willfully concealing “a material fact”.

Section 275(a)(1) and (2) are the easiest to charge, and given that most crimes are prosecuted at the state and local level, it’s also one of the most prosecuted of federal crimes.

For a first offense, a violation of section 275 of the INA is a class B misdemeanor under the federal sentencing scheme, carrying a potential penalty of up to six months’ imprisonment and a fine, while second and subsequent offenses are class E felonies, with a potential penalty of two years’ incarceration and a fine.

A Brief Explanation of the Federal Judiciary

To understand the section 275 prosecutions in the PIRC, it’s important to first appreciate the different responsibilities assigned to federal magistrate judges and U.S. district court judges.

Federal magistrate judges, appointed by the courts for eight-year terms without requiring presidential nomination or Senate consent, can preside over misdemeanor and petty offense cases, and as initial illegal entries under section 275 are simple misdemeanors, they usually handle them.

If you are familiar with the military, think of magistrates as the “warrant officers” of the federal courts.

U.S. district court judges alone preside over trials for federal felony offenses, and so once charges cross that line, the cases go to them (though magistrates can issue warrants, consider release requests, and conduct preliminary hearings in felony cases).

The “Prosecuting Immigration Crimes Report”

Through the end of March, PIRC reports that nearly 9,000 aliens have been prosecuted before magistrate judges on one of the three misdemeanor improper entry charges under section 275.

That includes about 1,700 magistrate prosecutions in the federal district of Arizona (which includes the Tucson and Yuma Border Patrol sectors), close to 1,200 in the U.S. District for the District of New Mexico (which only has jurisdiction over a sliver of the Southwest Border), just over 2,800 in the Western District of Texas (essentially El Paso and its environs) — and more than 3,000 in the U.S. District for the Southern District of Texas, a jurisdiction that encompasses the Rio Grande Valley and Laredo and Del Rio Border Patrol sectors.

Nearly all those aliens will be charged with and convicted of improper entry, but to be fair, most will simply receive a sentence of the time they have served in detention while waiting to see the magistrate.

That said, a federal criminal conviction is a federal criminal conviction and few of those aliens will ever be allowed to live in the United States legally.

Those magistrate prosecutions, however, pale in comparison to the nearly 15,000 charges that have been filed before U.S. district court judges for felony criminal re-entry under section 275 of the INA in the first six months of FY 2026.

Most are in the border-adjacent places you’d expect: 4,000 in the Southern District of Texas; 2,800-plus in the Western District of Texas; 1,342 in the District of New Mexico; almost 2,800 in the District of Arizona; and 1,150 in the Southern District of California.

Thanks to a June 2025 opinion from the DOJ Office of Legal Counsel (“OLC”, the definition of “lawyers’ lawyers”), which concluded that aliens encountered in the interior of the United States can be charged with “eluding inspection” wherever they are found (not just in the places they entered), however, other 275 felony prosecutions are literally all over the map.

Section 275 felony charges were filed against 63 aliens in the first half of FY 2026 before federal district court judges in the District of Minnesota; 95 in the Eastern District of Michigan; 52 in the Western District of New York; and 44 combined in the Eastern and Western Districts of Washington state.

While each of those district court judges sit (kind of) close to a U.S. border, the same is not true for the 104 felony 275 charges that were filed in the District of Utah; the 88 filed in the Eastern, Western, and Northern District of Oklahoma; or the 46 filed in the Eastern, Western, and Middle Districts of North Carolina.

Section 275 misdemeanor prosecutions send a message to would-be illegal migrants to stay out, but those felony prosecutions are telling aliens who entered illegally, evaded apprehension, and settled in this country to “get out while the getting’s good”, especially if this isn’t their first “improper” trip to the United States.

Trust me — as an immigration judge, I had jurisdiction over three U.S. lock-ups, Federal Correctional Institution (FCI) Allenwood and FCI Moshannon (both in Pennsylvania, the latter now an ICE facility), and for women, Federal Prison Camp Alderson, and you don’t want to visit any of them, let alone stay for a couple of years.

“Save Your Money, Save Your Life, Say Home!”

CBP Commissioner Scott underscored the futility of paying a smuggler to bring you illegally to the United States under Trump II in the following June 6 tweet:

Because prosecutions are DOJ’s job, not CBP’s, Scott skipped how unpleasant it can be for illegal entrants who are prosecuted and sentenced to a couple of Christmases in a federal pod with 20 other criminals (whom they eat, sleep, shower, and perform other essential functions around), but it’s really the same story Justice is telling in its “Prosecuting Immigration Crimes Report”.

How much would you pay a smuggler to spend a week, six months, or years in a federal prison? That’s a question would-be illegal migrants should be asking themselves as DOJ ramps up prosecutions for border-related crimes. And if you’re a repeat illicit crosser who thinks you’re safe from prosecution living in Salt Lake City, Tulsa, Walla-Walla, or Kalamazoo — you may want to think again.