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From the ACLU:

Is the fact of being present in the United States in violation of the immigration laws a
crime?

No. The act of being present in the United States in violation of the immigration laws is not,
standing alone, a crime. While federal immigration law does criminalize some actions that
may be related to undocumented presence in the United States, undocumented presence
alone is not a violation of federal criminal law. Thus, many believe that the term “illegal
alien,” which may suggest a criminal violation, is inaccurate or misleading.

Entering the United States without being inspected and admitted, i.e., illegal entry, is a
misdemeanor or can be a felony, depending on the circumstances. 8 U.S.C. § 1325. But many
undocumented immigrants do not enter the United States illegally. They enter legally but
overstay, work without authorization, drop out of school or violate the conditions of their visas
in some other way. Current estimates are that approximately 45% of undocumented
immigrants did not enter illegally. See Pew Hispanic Center, Modes of Entry for the
Unauthorized Migrant Population [May 22, 2006].

Undocumented presence in the United States is only criminally punishable if it occurs after an
individual was previously formally removed from the United States and then returned without
permission. 8 U.S.C. § 1326 (any individual previously “deported or removed” who “enters,
attempts to enter, or is at any time found in” the United States without authorization may be
punished by imprisonment up to two years). Mere undocumented presence in the United
States alone, however, in the absence of a previous removal order and unauthorized reentry,
is not a crime under federal law.