is illegal immigration a crime?

Posted in Uncategorized by Ryan Locke on April 27, 2009

Sort of.

Homeland Security Secretary Janet Napolitano said on State of the Union with John King this week that illegal immigration is not a crime.  She was asked to comment on Sheriff Joe Arpaio in Arizona, an outspoken supporter of strict immigration law enforcement and all-around hardass:

Arpaio has over 10,000 inmates in his jail system. In August, 1993, he started the nation’s largest Tent City for convicted inmates. Two thousand convicted men and women serve their sentences in a canvas incarceration compound. It is a remarkable success story that has attracted the attention of government officials, presidential candidates, and media worldwide.

Of equal success and notoriety are his chain gangs, which contribute thousands of dollars of free labor to the community. The male chain gang, and the world’s first-ever female and juvenile chain gangs, clean streets, paint over graffiti, and bury the indigent in the county cemetery.

Also impressive are the Sheriff’s get tough policies. For example, he banned smoking, coffee, movies, pornographic magazines, and unrestricted TV in all jails. He has the cheapest meals in the U.S. too. The average meal costs about 15 cents, and inmates are fed only twice daily, to cut the labor costs of meal delivery. He even stopped serving them salt and pepper to save tax payers $20,000 a year.

Anyway, this is the exchange:

SHERIFF JOE ARPAIO, MARICOPA COUNTRY, ARIZONA (on a video tape): I want the president, I want the politicians to say, we are going to enforce all of the illegal immigration laws and if you come into this country illegally, you’re going to be prosecuted and put in jail.

Let them say that. I’m waiting for them to say that.

NAPOLITANO: Well, you know, Sheriff Joe, he is being very political in that statement, because he knows that there aren’t enough law enforcement officers, courtrooms or jail cells in the world to do what he is saying.

What we have to do is target the real evil-doers in this business, the employers who consistently hire illegal labor, the human traffickers who are exploiting human misery.

And yes, when we find illegal workers, yes, appropriate action, some of which is criminal, most of that is civil, because crossing the border is not a crime per se. It is civil. But anyway, going after those as well.

But the notion that you’re going to fill every prosecutor’s time, every law enforcement official’s time, and that’s literally what he’s talking about, on immigration, he doesn’t answer the other question, which he has been criticized for, by the way, in Maricopa County, because he is not going after murders, armed robberies, other more serious crimes, because he is so focused on this one.

It is not criminal to be an illegal immigrant in the US. The term “illegal immigrant” is a misnomer; it’s not stictly illegal to be in the US without a proper visa or status.  Instead, it’s unlawful–the same way that if you fill out your taxes incorrectly, you may have to pay a civil penalty but you won’t be arrested, prosecuted, and sentenced.  For unlawful immigrants, the consequence is detention (sometimes) and removal.  Although the detention seems like a criminal penalty (and sometimes unlawful immigrants are detained in prisons) both detention and removal are civil penalties.  All of our immigration laws are located in Title 8.

There is no crime in Title 18 for being an illegal immigrant or crossing the border illegally. Title 18 is where all our federal criminal law is located.  It addresses trafficking and such, but not solely crossing the border.

But, 8 U.S.C. section 1325(a) does create a criminal penalty for crossing the border illegally. It says:

Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under Title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under Title 18, or imprisoned not more than 2 years, or both.

Part (b) applies civil penalties as well.  Note that courts have determined that the act of entering illegally is consummated at the actual entry, so the five-year statue of limitations starts at the time of entry (rather than calculating it as a continuing wrong, effectively eliminating the statute of limitations).  See US v. Rincon-Jimenez, 595 F.2d 1192.

So here’s the distinction: If you cross the border without inspection, that’s a crime.  If you enter with inspection lawfully but then fall out of status, that is not a crime.


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