You should look into the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and subsequent rulings.
Due process, in particular as it relates to expedited removal, is different for people who entered the country illegally.
I haven't seen if there was a ruling for those who entered legally but have exceeded/violated the conditions of their authorized entry, but I'm willing to bet they treat it roughly the same.
Basically, if you sneak if and they nab you 5 minutes later or 5 months later, it doesn't really matter.