Who Are "Illegals"?

When someone says the hot-button word “illegals”, who are they talking about?

What are the different ways that people can be present in the United States in 2026 without legal authorization?

There are some primary distinct categories of people deemed “illegals” by the zeitgeist, including:

1. people who were lawfully admitted and have “overstayed” their visas;

2. people who did not have the proper documents to travel to the USA, but who presented themselves at a lawful port of entry and requested asylum;

3. people who crossed the border illegally and were apprehended by CBP almost immediately;

4. people who snuck in (or entered the country without having any contact with the U.S. government).

For all of these people, the ultimate desire of the U.S. immigration law is that they either regularize their status or eventually depart the country. If ICE releases people at the border who have violated the immigration law, they are usually placed in removal proceedings in the United States Immigration Courts. So they are let go to pursue a court case; if they win, they can stay; if they lose, they have to leave.

Also, many people do end up in a situation where they are indefinitely in limbo - they don’t have status or the prospect of status, but the government is not taking any action whatsoever against them. Many people end up lost in the system completely. When you’re dealing with this volume of people, some inefficiencies are inevitable.

Many Americans clearly believe that being present in violation of the law is a moral failing. Perhaps Americans don’t like to see people breaking the rules and getting away with it. “Lots of people wait a long time to immigrate the right way”, is a very common and logically plausible refrain.

Others say it’s xenophobia posing as morality: if you’re already mad that there are people speaking Spanish in your neighborhood, you’ll be interested when you hear that you might be able to get rid of them.

Either way, it’s completely irrelevant in a serious evaluation of the legality of a person’s actions. Who cares? Whether the law is right or good or wrong or bad is a POLITICAL QUESTION. Anyone who suggests that a person who benefited from an unpopular law should be punished by the government cannot be taken seriously as an adult. You don’t like a law? Call your Congressperson, vote, and carry on with your life like the rest of us.

Even if we bracket moral outrage, the law itself treats these categories very differently – and often counterintuitively.

People in all these categories may have access to legal defenses. In other words, the law provides many ways for people who were once in unlawful status to obtain a lawful status. I would argue that no one in such a position whose application DHS has accepted and is considering, regardless of whether they were ever in one of these categories, should be construed as “illegal”.

Further complicating things - both of these can be true at the same time: you entered the country illegally, but seeking asylum after entering the country illegally is legal.

So as pithily as I can, the basic problem is: just because something seems illegal to you, that doesn’t mean it is.

Not only that, but also: the next time you as a civilian encounter “an illegal”, you will have no way of finding out without their permission where they fall on the broad spectrum of legality.

So you should probably just go ahead and treat them as you would anyone else.

What are the different worldviews of these respective categories?

Ranked from “least” to “most” unlawful, according to a would-be immigrant’s mens rea:

2, 3, 1, 4.

In support of this ranking, here is a zoomed-out procedural narrative of how these people are treated by the law in a quasi-functional modern DHS:

LEGALLY PERMITTED (THOUGH POLITICALLY CONTESTED): Category 2 – people who did not have the proper documents to travel to the USA but who presented themselves at a lawful port of entry and requested asylum.

Though it happens all the time, it’s AT BEST misleading to call these people “illegals”. But asylum is politically seen as an exploited and abused system. There is a perception that a majority of the people who request asylum are not legitimate refugees in fear of persecution. So all asylum seekers are vilified.

But the law allows them to do this. Explicitly. It’s rooted in the Geneva Conventions, a binding Treaty that the United States adopted as its own law. If you don’t like it, you can’t blame these people for doing it. To do so would be irrational.

Not having a passport or a valid visa ≠ illegal entry.

To illustrate why the law protects this, imagine you’re a Venezuelan. You are an enemy of the Venezuelan State who doesn’t have a passport. Would you wait for the VENEZUELAN GOVERNMENT to give you your passport before you fled? That would be absurd, and the law reflects that plain reality.

For argument’s sake, let’s say 1,000 people presented themselves at a port of entry to be considered for asylum. Let’s say 1% are legitimate cases. If the government were to say “none of you can come in, we won’t even consider you or screen you”, that means 10 people would be sent to their persecution, torture, or in some cases, death. America’s government has already democratically determined that it does not want that blood on its hands.

For what it’s worth, these people have interviews with CBP at the border.

Their fingerprints are taken and stored in a database.

Their picture is taken and their face is stored in a facial recognition database.

They are listened to, they are considered. Some are denied and deported.

Some are allowed to enter the country under ICE supervision, sometimes with GPS-ankle monitors. If they violate the terms of their supervision, ICE deems them fugitives and takes steps to apprehend them.

This particular system is designed to only let people with prima facie legitimate asylum cases enter the country.

BROKE THE LAW BUT YOU CAN EMPATHIZE: Category 3 - people who crossed the border illegally and were apprehended by CBP almost immediately

In the minds of many would-be immigrants (many of whom can’t realistically be expected to understand the nuances of U.S. immigration law), this is no different than Category 2.

I’m standing in Mexico. I’m looking over the border. I see CBP agents looking at me. They watch me cross the border. I walk up to them. They arrest me.

I wasn’t trying to flee. I wasn’t trying to hide. I had my hands up. I had a kid in my arms. I’d rather be arrested in America than free in Mexico. CBP knew my intentions were not evil or meant to harm any person.

These people can also be interviewed and their fear assessed.

Their fingerprints are taken and stored in a database.

Their picture is taken and their face is stored in a facial recognition database.

They are listened to, they are considered. Some are denied and deported.

Some are allowed to enter the country under ICE supervision, sometimes with GPS-ankle monitors. If they violate the terms of their supervision, ICE deems them fugitives and takes steps to apprehend them.

BROKE THE LAW BUT HERE’S A COOKIE FOR CHECKING IN: Category 1 – people who were lawfully admitted and have “overstayed” their visas

These people did not live up to their agreements with the United States, so follows the logic of the current law (... until it doesn’t.) The United States trusted them, and they broke that trust.

Do reasons exist why that might happen to a good person? Of course.

But we’re not dealing with morality. We’re dealing with law.

And the law here is pretty goofy.

Because if you were admitted, even as a tourist, that already gives you a MASSIVE leg up in defending against deportation.

John entered as a tourist and never left. 10 years later, John marries an American citizen. John can get his green card without having to leave the country. Even though he’s been living in the United States illegally for almost a decade. Someone who entered illegally has to obtain a waiver before they can get such a visa, and that waiver involves leaving the United States, attending an interview at a US Embassy or Consulate in a foreign country, and being readmitted legally before they can get their green card.

Does that seem fair to you?

And just last year, the Board of Immigration Appeals issued Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), which held that anyone who was not admitted or paroled into the US is categorically ineligible for release from ICE custody on bond.

So if you entered illegally and ICE picks you up, you can’t get a bond while you fight your case. You have to do that from jail.

Not so if you entered on a visa and overstayed.

Like the previous categories, these people, upon inspection when they were admitted, were fingerprinted and their photographs were taken, and all that is in a database.

100% AGAINST THE LAW, NO IFS ANDS OR BUTS: Category 4 - people who snuck in (or entered the country without having any contact with the U.S. government)

They’re here and the U.S. government may or may not know about it.

It is logically fair to use the words “illegal”, “illegality”, “undocumented”, etc. for this group. The law specifically prohibits entry without inspection. It still does happen.

Politically speaking, this group is the reason that ICE and DHS exist. DHS was created as a direct response to 9/11. Yes, the 9/11 terrorists had come to the US on visas. So the first answer was beef up the visa issuance security and background checks, which was done.

But a post-9/11 foreign terrorist would obviously say to himself – “the 9/11 guys got in on visas, so we can’t do that again. We’ll have to cross the border illegally, which shouldn’t be too hard – people do it all the time.”

This fear of “who could be here without us knowing it” simply cannot be discarded offhand.

Yes, we have surveillance. Yes other countries coordinate security with us. Yes we should realistically catch most people who fit this profile with our current infrastructure.

But if people are successfully entering the country without the government knowing about it, it will always be politically valid to stoke fear about it. It will always score points. Because it’s not completely illogical.

These categories each contain huge numbers of people. The differences among them are very real. They are not all the same under the law.

The reason the term “illegals” is used is because it sounds bad. It makes them sound nefarious, violent even.

Those deemed woke refuse to call a person “illegal” because they find it demeaning to people.

Whether it offends you or not, calling people “illegals” is setting yourself up for being wrong in the next sentence you utter because you’re almost certainly generalizing a very large and disparate group of people.

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It’s important to speak with specificity, especially if real dialogue is to be achieved.

“Biden had open borders”.

No he didn’t. The border was enforced. Many people were deported. CBP continued to apprehend people who crossed without permission with the same ease as under Trump 1.0 or Obama. People waited for weeks or months in makeshift camps in Mexico outside US ports of entry as they processed each claim, one by one.

In reality, many on the Left were furious with Biden for enforcing the border too much, and they felt betrayed that he didn’t repeal more of Trump’s policies.

Videos showing a lot of people walking across something that looks like a “border” posted by people like RFK, Jr. are what we call in the law “anecdotal evidence” or "innuendo". You’re going to have to do better than that.

“What I mean is, Biden let a lot of people in. He basically had an open border.”

It’s true that there was a surge of border crossings during Biden’s term. And many people did get interviewed by CBP and were quickly released into the country under ICE supervision while their cases are adjudicated. As has always been the case, if people in that situation became fugitives, ICE took steps to apprehend them. Before COVID, Trump 1.0 also had a surge. And due to the administrative burden of interviewing everyone, they stopped interviewing people and actually began letting them in without any fear assessment being done. What would stop me from saying Trump 1.0 is the closest to “open borders” we’ve had in this century?

“I still think Biden had an open border.”

The broader the claim, the harder to rebut.

And that’s the point.