In 2025, the Trump administration’s Office of Legal Counsel (OLC) declared that it is a federal crime simply to be an undocumented immigrant.  Congress has enacted no such crime.  Congress has made it a crime for an immigrant to enter the United States in a manner that “eludes examination or inspection.”  For nearly 100 years, this “elude” offense has been understood to occur only at the moment an immigrant enters the country.  But the Trump administration’s OLC has reinterpreted this crime as a continuing offense.  Under this new reading, an immigrant who entered unlawfully eludes examination until the moment of their arrest.  The OLC’s interpretation thus converts the crime of illegal entry into the crime of undocumented presence.  This has major implications for federal immigration prosecutions.  Illegal entry, already the most frequently charged crime in the federal system, can now be prosecuted in nonborder states.  To date, dozens of immigrants in states like Kansas, Oklahoma, Nebraska, and Utah have been convicted under this novel theory.  In addition, this theory eliminates any statute of limitations for illegal-entry prosecutions, and it significantly expands U.S. Immigration and Customs Enforcement’s (ICE) power to conduct searches and arrests.

This Article shows that the OLC’s interpretation is baseless.  It does so by examining the history of the illegal-entry statute, including through original research into documents from the National Archives.  This history reveals that when illegal entry was criminalized, legislators, judges, and executive branch officials all understood it to only occur at the moment of entry.  That interpretation was memorialized in numerous legislative and administrative documents during and after the law’s enactment.  It was also reflected in prosecution patterns and judicial rulings.  And it is confirmed by a straightforward analysis of the statute’s text and structure.  The Trump administration has thus been convicting immigrants of a nonexistent crime.  Unfortunately, being wrong on the law will not necessarily stop them.  Federal immigration prosecutions suffer from a fundamental rule-of-law deficit.  It is hard for defendants to argue that the charge doesn’t apply, because the system ordinarily forces them to plead guilty quickly.  This Article explores that problem and proposes a path for contesting the Trump administration’s implausible interpretation.