Just because there is no fine or jail time penalty applied, does not make entering & exiting the USA with a foreign passport legal. It is still against the law. And a record for violating that law could be taken into consideration on future issues.

@Tom "And a record for violating that law could be taken into consideration on future issues" - hm... it seems that you're a humdinger of a law-breaker, traveling on so many passports... it's therefore definitely you who committed that murder.

If they really want to hit you, material lies on the ESTA application can at least be prosecuted under 18 USC §1001 which authorizes fines and prison sentences up to 5 years. (In practice you would probably need to piss off a judge something fierce to get any jail time out of it -- after pissing off a prosecutor enough to end up in front of that judge in the first place).

@HenningMakholm on the other hand, there used to be a page acknowledging that dual citizens might lie on ESTA forms so they can fly to the US using their other passport in an emergency. I think they've taken that page down as I haven't seen it in a while.

@Tom where would that record be kept? It's not a criminal violation, after all.

I've voted to close this question as primarily opinion based because the possible penalty is quite severe, the likely penalty is none, and the actual penalty that might be imposed in any given case is anyone's guess.

@phoog well... what is the possible penalty?

See @HenningMakholm's comment.

@phoog: Are you talking about this page? Look under "Completing your ESTA application" and "My country of issue is not in the menu". It says: "If you have a true emergency, and are unable to obtain a U.S. Passport before your travels, and only have a VWP-eligible passport, then you will have to apply through ESTA using that passport to travel to the U.S. When arriving at the U.S. airport using the foreign passport, you will have to use the non-resident queue."

@NateEldredge The word "completing" doesn't appear anywhere on the page you link, so I'm not sure how to find the document you're talking about.

@phoog I don't see how that's a reason for closure. The question isn't asking us to predict the penalty that will be applied in a particular case and the maximum penalty isn't a matter of opinion

@DavidRicherby It's on this page, select the "Completing your ESTA application" then the "My Country of Issue is not in the ESTA drop down menu, other passport eligibility issues." FAQ.

@DavidRicherby: Oh, I see, the URLs don't do what they seem to. Ok, go to esta.cbp.dhs.gov, click Help in the bar above the Statue of Liberty. A new window opens, expand "Completing Your ESTA Application" and "My Country of Issue is not in the ESTA drop down menu, other passport eligibility issues"

I'm voting to close this question as off-topic because it's a legal question about penalties of lying

I think this should be reopened in light of the information @NateEldredge points out, where an official source suggests such an action is permissible "in a true emergency." The correct answer is that you could theoretically be prosecuted and jailed for making false statements, but an official government website mentions this situation as a possibility.

You know, the question tacitly assumes that it's necessary to lie to accomplish this, but do we actually know that? What actually happens if you fill out an ESTA application and state that you have US citizenship but no US passport? Does it automatically reject your application? In light of the note I mentioned above, it's possible that it doesn't.

@ZachLipton: Indeed, common sense would suggest that "the government's official instructions told me to fill out the form that way" would be a pretty good defense in court against a charge of making false statements. Of course, the law does not always coincide with common sense, but I think it's worth investigating. I voted to reopen, too. The question could be rephrased from "what is the penalty" to "is it legal".

Indeterminate.

@phoog - "It's not a criminal violation, after all", it IS a law and if you violate it, it IS a criminal violation. The fact that you aren't jailed does not negate that fact. Who maintains such records other than CBP is unknown, who has access to those records is unknown. But ultimately it means you may have a criminal record for violating a federal law. And personally I don't not want any criminal record no matter how minor. Of course if folks prefer to buck the system, then whine when they get caught, their choice.

@Tom it's a violation of civil immigration law, just like the people who overstay their visas, only it's less severe since there's no penalty. That's right, people who overstay in the US are not criminals because of their overstay, and neither are citizens who come or go without their passport. It's not a felony. It's not a misdemeanor. You won't have an FBI record after violating that law.

@phoog - How do you know what data the FBI knows of? Can you prove that that information is not recorded? This stack community needs to be split into two separate communities: those who want to travel well and those who want to fuck the system while they travel.

@Tom you can't get a criminal record without getting sentenced in court.

@JonathanReez - Can you document anything that says violating that law will result in no record or prosecution? Or are you tiptoeing through the tulips based on an assumption?

@Tom you can't get a "criminal record" without getting prosecuted by a court of law, I believe that's in the Constitution. Whether or not you're prosecuted and convicted is up to question though. It should be possible to find such cases in the federal court database.

@JonathanReez FBI records typically include arrests as far as I know, even if the suspect is released without being charged.

@Tom I would suggest that if it were to be split that the groups comprise those who focus on the actual likely consequences of their actions and those who waste energy worrying about negative repercussions that are theoretically possible but less likely to come to pass than winning the lottery. Do you also avoid speeding and jaywalking because of the (much greater) potential that these acts have to leave you with a criminal record?