Monday, May 29, 2006

Is it a crime to be an undocumented immigrant?

Is it a crime to be an undocumented immigrant? I would say that this question is the subject of much debate, except that it's not really. People simply take sides, and make definitive, passionate statements one way or the other, without ever really discussing the facts. You will often hear conservatives, and even not-so-conservatives stating unequivocally that undocumented immigrants are criminals. Many others, including myself, believe that they are wrong. Here are the facts (in summary form, but with citations for those who want more information). I will leave it up to you all to come to your own conclusions.

Unauthorized Presence

There are no criminal penalties under current law for mere unauthorized presence in the United States. Accordingly, an undocumented immigrant found in Minnesota, for example, is subject only to removal, which is a civil, not a criminal proceeding. The vast majority of undocumented immigrants fall into this category.

Improper Entry

The penalty for improper entry (or attempted entry) into the United States can be a fine, or imprisonment for no more than 6 months, or both. 8 U.S.C. section 1325. An offense that carries a maximum penalty of imprisonment for one year or less is generally classified as a misdemeanor. 18 U.S.C. section 3559(a). So, a person caught crossing the border without the proper documents could be charged with a misdemeanor. In reality, however, most people are simply removed or allowed to voluntarily depart.

It is important to note that the offense of improper entry into the United States is consummated at the time of the improper entry; it is not a continuing offense. U.S. v. Rincon-Jimenez, 595 F.2d 1192, 1193-94 (9th Cir. 1979). So, someone who has been here for years cannot be charged with committing the offense of improper entry. Furthermore, the lack of proper documentation or other indication of unauthorized presence, by itself, does not provide probable cause of the offense of improper entry. Gonzales v. City of Peoria, 722 F.2d 468, 476-77 (9th Cir. 1983) (overruled on other grounds). This makes sense, because some undocumented immigrants enter legally, but lose their legal status at some point, for a variety of possible reasons.

Entry or Presence after Removal

A person who has previously been removed from the United States, and who subsequently enters, attempts to enter, or is found in the United States can also be subject to fines and/or somewhat more severe criminal penalties, depending on the circumstances of the case. 8 U.S.C. section 1326. In some cases, these individuals are actually criminals. That is, they may have been removed as a result of having committed some crime. In those cases, the penalties under 8 U.S.C. section 1326 may be more severe.


There you have it. Now you can draw your own conclusion. I do not believe that undocumented immigrants are criminals. There are no criminal penalties for unauthorized presence in the United States. It is true that some undocumented immigrants risk being charged with improper entry at the time of their entry into the United States. But that rarely happens. Even if it did, it is only a minor offense. If every person in the United States who had ever committed a misdemeanor in his or her life were indelibly branded a criminal, we would have an awful lot of criminals in this country.

It is also true that some undocumented immigrants commit crimes. I am happy to see those individuals face the penalties for their crimes. However, the vast majority of undocumented immigrants are just regular people who are trying to live, work, and raise their families the best they can. Most of them have been here for many years without committing any crimes. Their presence is not a crime. If you ask me, that's a good thing, because they are not criminals.

For an interesting summary of the legal framework, and discussion of the possible ramifications of proposals to criminalize unauthorized presence in the United States, see Michael Garcia, CRS Report to Congress: Criminalizing Unlawful Presence: Selected Issues, May 3, 2006, available at,0509-crs.pdf (last visited May 29, 2006).


Anonymous Nevaeh Lleh said...

1. You sound just like the D.A.s on Law and Order when you cite those cases to make your argument!

2. So how do you define "criminal?" Is it not someone who breaks the law? And is the law not broken in a misdemeanor? Where do you draw the line?

3. If someone tries to enter the US "illegally" or I guess maybe you'd say, without the proper documentation, is there any way for them to accept the fine/short jail time and then stay here? Or are they deported automatically?

7:36 PM  
Anonymous Anonymous said...

1. Please comment on the term "illeagal alien".
2. Is there a way to separate immigration concerns between the undocumented immigrants who come here to work from the terrorists who may use the same porous borders to enter the US--a real worry.
3. If there are laws (immigration) and the U.S. does not enforce them, does the U.S. lose credibility? Can the U.S. hold some immigrants to the law and not others? How should the law change?
4. What are economic concerns surrounding undocumented immigrants, i.e. healthcare, social benefits, etc. How does their presence impact the average town? Is this one of the sticking points for arguments against the undocumented immigrants? How will this change if immigrants already here are "grandfathered in"?
5. Just curious...what would be the dream scenario; a win-win for everyone?
6. Still in the Learning Mode, I find your information very helpful. What you write is clear and easy to understand while based on law and facts and reality. Jim Lehrer's evening news program should invite you on.

7:24 AM  

Post a Comment

<< Home