The recent death of Renee Good during a protest at an ICE operation in Minneapolis, Minn., has renewed calls to “Abolish ICE” and get the agency “off our streets”. That, of course, raises the question of what would replace the agency, if any entity at all. Plainly, someone must do the job officers are currently performing in the Twin Cities, because if you think four years of Biden was bad for border security, community safety, and the public fisc, a future without ICE would be worse on all three counts.
Inspection of Aliens Who Have Not Been Admitted
Let’s start at the beginning of the immigration process.
Under section 235(a)(3) of the INA, “All aliens ... who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers”. (Emphasis added.)
Understand that this requirement does not simply apply to “law-abiding” aliens who travel to the United States, arrive in this country, and wait patiently in a queue at the port of entry.
Rather, the INA makes clear that it applies to every alien who arrives or is living here who has not been inspected and admitted. As section 235(a)(1) of that act states:
An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this chapter an applicant for admission.”
In other words, even if migrants cross the Sonoran Desert illegally with the intention of eluding any and all Border Patrol agents they encounter, they are treated as applicants for admission — and as I will explain, remain applicants for admission until they are arrested and/or admitted.
The “inspection” process in section 235(a)(3) of the INA is intended to answer two questions. First, is the individual an “alien”, as defined in section 101(a)(3) of the INA (that is, not a citizen or national of the United States)? And second, if the individual is an alien, is the alien admissible to the United States, that is not inadmissible under any of the grounds of inadmissibility in section 212(a) of the INA?
“Expedited Removal”
Following that inspection, under section 235(b)(1) of the INA, an immigration officer can issue a removal order without placing the alien applicant for admission in removal proceedings (under section 240 of the INA) before an immigration judge if either the alien lacks proper admission documents (e.g., a visa and/or passport) or the alien is seeking admission through fraud.
The only exception to that expedited removal rule is for an alien who demonstrates a “credible fear” of persecution or torture if returned. In that instance, the alien is taken out of expedited removal and placed into section 240 removal proceedings to apply for humanitarian protection.
“Regular Removal” for Alien Applicants for Admission
Alternatively, CBP can treat alien applicants for admission who lack proper admission documents or are seeking admission through fraud in the same manner it deals with other inadmissible applicants for admission, by placing them into “regular removal” pursuant to section 235(b)(2)(A) of the INA.
That provision states that, “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for” removal proceedings before an immigration judge under section 240 of the INA. (Emphasis added.)
In other words, aliens who haven’t been admitted to the United States must prove during the inspection process that they are “clearly and beyond a doubt entitled to be admitted” to this country and aren’t inadmissible under any of the grounds of inadmissibility in section 212(a) of the INA.
If they can’t, they must be detained for a removal hearing where an immigration judge will determine whether they should be admitted or otherwise allowed to remain.
Note that the Biden administration ignored that detention mandate and released, by my count, 88.5 percent of all illegal entrants it encountered at the Southwest border and ports.
That, a federal judge concluded in March 2023, encouraged even more aliens to come here illegally, ultimately triggering a border disaster that was exploited by criminals and gangs, cost cities and states billions, and undermined the credibility of our immigration system.
The Grounds of Inadmissibility in Section 212(a) of the INA
There are 10 categories of aliens who are inadmissible under section 212(a) of the INA, including those with health issues (such as communicable diseases), criminals, security risks (terrorists and spies), public charges, and those previously removed.
Two of those 10 grounds apply to aliens who have entered illegally.
The first is section 212(a)(6)(A)(i), which states: “An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.”
The second is section 212(a)(7)(A)(i)(I) and it renders inadmissible any immigrant:
who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General.
DHS generally charges aliens arrested in the interior of the United States who entered illegally with inadmissibility under section 212(a)(6)(A)(i) of the INA, and they are commonly referred to as “EWIs”, “entries without inspection”.
Of course, an EWI can be inadmissible under more than one ground of inadmissibility, particularly if the alien has been criminally convicted and is also removable under section 212(a)(2) of the INA.
In fact, the large number of aliens who came illegally under Biden and committed criminal offenses here was the main driver for the “Laken Riley Act”, Pub. L. 119-1, which Congress passed on a bipartisan basis and President Trump signed into law last January.
Note that the grounds of inadmissibility in section 212(a)(2) of the INA are written in ”mandatory”, not “precatory” terms. These are not suggestions; they are commands.
Again, here’s section 212(a)(6)(A)(i) of the INA: “An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.” (Emphasis added.) There’s no wiggle room there.
And, as with the section 235 inspection process, section 240(c)(2)(A) of the INA places the burden of proof on alien applicants for admission in removal proceedings “of establishing” they are “clearly and beyond doubt entitled to be admitted and [are] not inadmissible under section” 212 of the INA.
That said, inadmissible aliens — including EWIs — are eligible to seek and can be granted certain forms of “relief,” statuses that will allow them to remain (most commonly asylum).
But if applicants for admission are found to be removable, don’t seek or are denied relief, and are ordered removed from the United States, section 241(a) of the INA requires DHS to arrest, detain, and remove them within 90 days.
Illegal Entry as a Criminal Offense
Section 275(a) of the INA, which is codified at 8 U.S.C. § 1325(a), states:
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.
Note that there are three different crimes in section 275(a): (1) “improper entry”; (2) “eluding examination or inspection”; and (3) fraudulent entry or attempted entry.
Improper entry under section 275(a)(1) of the INA is the offense illegal entrants apprehended at the border are generally charged with, and it is also one of the most charged federal crimes, period.
In addition, and importantly, it is considered a “completed” offense, as it ends following the improper entry and apprehension.
Eluding examination or inspection under section 275(a)(2) of the INA was also, until recently, considered to be a completed offense once the alien made it past Border Patrol and proceeded into the United States.
Consequently, if ICE arrested an illegal migrant in Ohio and wanted to prosecute the alien for either improper entry or eluding, DHS had to send the alien back to the federal district where the alien crossed, such as the Western District of Texas if the alien came through El Paso.
OLC Changes Course
On June 21, 2025, however, DOJ’s Office of Legal Counsel (OLC) — the department’s own law firm — issued an opinion captioned “Whether Eluding Inspection Under 8 U.S.C. § 1325(a)(2) Is a Continuing Offense”.
That opinion reversed an earlier May 1978 OLC opinion in determining that section 275(a)(2) of the INA is an ongoing offense that follows the offending alien to any district in which the alien is found.
Notably, in making that finding, OLC concluded therein (among other things) that:
- An alien who eludes examination is like a convict who escapes from federal custody — the act of eluding or escaping extends beyond the initial moment of evasion.
- If immigration officers have an ongoing duty to inspect illegal aliens, it stands to reason that an illegal alien may continuously elude inspection, even after the specific moment at which he enters the country.
- [B]ecause section [275 of the INA] is clear that the duty to inspect is ongoing, so is the duty to submit to inspection.
- Our reading of the statute is ... confirmed by the fact that section [275(a)(2) of the INA] prohibits conduct that would create an ongoing threat to U.S. citizens. The Supreme Court has made clear that a crime is continuing if it is of the sort whose “nature” is “such that Congress must assuredly have intended that it be treated as a continuing one.” For example, a prisoner who “escapes” prison commits a continuing offense in part because the crime is one that “by its nature” presents a “continuing threat to society,” “such that Congress must ... have intended that it be treated as a continuing one.” Evading inspection is much the same. Immigration officials inspect aliens to discover whether (among other things) those aliens have or will seek to engage in “terrorist activity,” “espionage,” “sabotage,” efforts to “overthrow” the U.S. government by force, the theft of sensitive information or technology, or “any other unlawful activity.” [Emphasis added; citations omitted.]
This is an important opinion, and the only reasons why elected officials and the media likely haven’t mentioned it more are: (1) it’s long; (2) like most OLC opinions, it’s written in often confusing legalese; and (3) most people think of “illegal entry” as one crime, not three.
But anyone who claims aliens who “enter the United States without authorization aren’t criminals” is dispositively wrong. As OLC makes clear, eluding inspection at the border is a federal criminal offense that continues up to the point at which the alien is found and arrested in the interior, just as prison escapees commit the ongoing federal offense of escape until they are caught.
Note also that all three crimes in section 275 are class B federal misdemeanors for a first offense but are class E federal felonies for a second or subsequent offense. Most first offenders get time served, but re-entrants and serial eluders can end up in federal correctional facilities for years.
A Brief Recap
Here’s a brief recap.
Aliens who arrive in the United States have a duty to submit to inspection, and DHS in turn is required to inspect them to ensure they have proper documents and aren’t inadmissible under any of the grounds in section 212(a) of the INA.
DHS has a separate duty, under section 241 of the INA, to arrest, detain, and deport such aliens if they are ordered removed.
Even aliens who enter illegally between the ports are considered applicants for admission, and the act of entering illegally is both a civil offense (under section 212(a)(6)(A)(i) of the INA) and a criminal act (under section 275(a)(1) of the INA, 8 U.S.C. § 1325(a)(1)).
Finally, all aliens who enter illegally, elude inspection, and make their way into the interior of the United States are committing an ongoing offense that continues to the point DHS arrests them and subjects them to inspection, under section 275(a)(2) of the INA, 8 U.S.C. § 1325(a)(2).
If Not ICE, Then Who?
If Congress were to give in to those “Abolish ICE” demands and disband the agency, who would find, arrest, detain, prosecute, and remove the millions of aliens currently present here who came here illegally?
Some agency must perform those duties, because otherwise the rest of our immigration system will collapse. Simply put, absent interior enforcement, the only incentive to come here “the right way” (aside from one’s own fickle conscience) is the risk of apprehension at the borders, with all the chaos it entails.
Trust me: If you think four years of Biden was bad for border security, community safety, and municipal budgets, a future without ICE — regardless of what you think of the agency in the heat of the moment — would be exponentially worse.