Note To Congress: Most Illegal Aliens Are Already Criminals—But They're Not Being Deported Anyway [NEW IMPROVED VERSION!]
Print Friendly and PDF

As Mexican nationalist demonstrators take to the streets in post-1986 Amnesty mass immigration America– egging the U.S. Senate on to march over the cliff of yet another illegal alien amnesty—Congressman Tom Tancredo took to the pages of America's favorite "McNewspaper," USA Today, in arguing the case for immigration law enforcement.

In his op-ed Myths vs. Facts (March 29), Congressman Tancredo tackles two of the rallying cries against H.R. 4437 that have supposedly been fueling the recent pro-illegal alien mass demonstrations.

Tancredo writes:

  • "A second myth is that House Republicans want to make illegal presence in the USA a felony."

Both myths about H.R. 4437 to which Tancredo refers come from the bill's Title II – "Combating Alien Smuggling and Illegal Entry and Presence," specifically Sections 202 and 203.

Thanks in large part to the efforts of Tancredo and his House Immigration Reform Caucus, H.R. 4437, the "Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005" [PDF] was approved by the House of Representatives on December 16, 2005.

Tancredo dismisses the first myth as nonsense in short order. Laws against harboring illegal aliens have been on the books for decades. Of course, they have been unenforced, but they're there.

Prosecution, or the lack thereof, for immigration violations is the responsibility of the various Offices of the United States Attorneys throughout the country. They are tasked with enforcing violations of the U.S. Code in the Federal District Courts. But has anyone noticed the federal government prosecuting Americans who give illegal aliens an assortment of goodies such as jobs, mortgages or identification documents? I think not.

So what makes anyone think that the U.S. Attorneys across the country will somehow overnight begin prosecuting folks who give illegal aliens soup or sandwiches — let alone prosecuting priests in the Roman Catholic Church?  Soup kitchens have never and will not now constitute "harboring" illegal aliens.

As for the second myth, illegal aliens by definition have committed an immigration violation (under the Immigration and Nationality Act). But they might not necessarily have committed a criminal violation. Illegally entering the United States is a "crime" now (although not the gravest type of crime i.e. a felony, which would carry a higher penalty than the current six months' jail.) But the mere fact of an alien's unlawful presence is not now a federal crime, although it is a removable offense under the Immigration Act.

Summary: Entrants who have overstayed the term of valid legal visas constitute unlawful presence violators. Fence-jumpers, Rio Grande River swimmers and other assorted illegal crossers of the border constitute illegal entry violators.

The House bill does add "unlawful presence" to the criminal offenses listed along with "illegal entry" already in the statute.  The bill also bumps up the penalties for both "illegal entry" and "unlawful presence" to "one year and one day" of prison time, enough to make both offenses into federal felonies because of the increased length of sentence.

Of course, if you really want to get technical here, many illegal aliens in the United States—maybe 20 million strong of them—are already not only subject to removal for violating the Immigration Act, but are in fact criminals!

Not only can they already be deported under Immigration and Nationality Act provisions for breaking the law, but a great many of them could also be prosecuted for illegally entering the country under 18 U.S. Code Section 1325.

Tancredo also wrote in USA Today that "[r]ight now, illegal presence in the USA is not a crime; it is a civil infraction." 

Ahem! The Congressman misstates slightly. Illegal presence is not a crime (see above). But it's not a "civil" infraction either. It's an immigration violation—and already a deportable offense. 

Here's a quick thumbnail sketch of all the legal distinctions: 

  • Criminal charges are brought by the states or the federal government against individuals for violation of state or federal criminal codes. Criminal charges can subject someone to jail or prison time, depriving them of their liberty.

  • Civil lawsuits are brought by individuals against other persons for money damages or injunctive relief (namely, getting someone to do something, or stop doing something else), but without the issue of jail or prison time (which can only be administered by the government). Howard Foster's RICO class actions against the employers of illegal labor are civil law suits.

  • Aliens who violate the immigration laws of the United States as found in the Immigration and Nationality Act are subject to removal from the country. Deporting aliens can be accomplished either through summary removal (hurrah!) or after running the course of endless litigation before the Department of Justice's dreaded Executive Office for Immigration Review (EOIR) Immigration Court system (boo, hiss!). But the only thing that aliens have to fear in this area is deportation, not money damages, and not jail time.

  • Aliens who also happen to violate certain immigration-related provisions of the federal criminal code can also be subject to prosecution for their crimes by the U.S. attorneys in Federal District Court. Popular immigration-related crimes are found in Title 8 of the U.S. Code (section 1325: illegally entering the U.S.; section 1326: alien smuggling).

As fans of immigration law enforcement though, just ask yourself: if all of the illegal aliens running loose across America are not being deported in any significant numbers now, (nor have they been since probably the 1950s), why should we think these same illegal aliens will now suddenly be prosecuted by politically-correct U.S. Attorneys for illegal entry?

Of course, illegal aliens should be prosecuted. The fact of the matter is that most illegal aliens are law-breaking criminals already, and they're also liars, cheaters, and thieves (i.e.—stealing a life in the U.S. that does not belong to them), just for good measure.

When I say "deport illegal aliens and criminal alien residents," the "criminal" part refers to LPRs (lawful permanent resident aliens) who have committed crimes that render them deportable under the Immigration Act.

And by definition, they've also committed a crime (in this case a federal or state criminal offense) in addition to the immigration violation.  

Tancredo in his USA Today article points out that, ironically, Republicans have attempted to soften the law—but the Democrats stopped them:

"Chairman James Sensenbrenner, R-Wis., wrote an amendment to his own  bill asking that the penalty be reduced from a felony to a misdemeanor; 191  Democrats and a few Republicans voted to keep the felony penalty in the hope that it would be a poison pill to defeat the measure. After his amendment lost, Sensenbrenner promised, 'When this bill gets to (House-Senate) conference, those penalties will be made workable. You can count on that.' "

The incredible truth that House Democrats actually voted to keep the dreaded "felony" penalty was also previously pointed out in an e-mail from a legislative analyst published March 25 by Michelle Malkin.

Legal Eagles can check out my FAQ section and also the definitions section of Immigration Act Section 101(a) for more hair-splitting technicalities.

But in my humble opinion, this "making it a crime" business is just one gigantic red herring for the reconquista crowd.

As long as the federal government is not particularly interested in enforcing immigration laws anymore, all of these legal distinctions don't really hold my interest.

I'd much rather ponder the grave implications of the recent "Border Wars" article by Jeff Randall in the April 2006 issue of S.W.A.T. Magazine.

Forget the USA Today opinion page . . . now S.W.A.T. Magazine, that's one heck of a page-turner!

Juan Mann [email him] is an attorney and the proprietor of He writes a weekly column for and contributes to Michelle Malkin's Immigration BLOG. 

Print Friendly and PDF