Illegal **Presence** CAN Be A Crime!
January 07, 2009, 02:30 AM
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In his recent blog entry, Matthew Richer links to a January 1 article (Judge dismisses immigrants' suit, by C. Eugene Emery Jr.) from the Providence Journal about the arrests of 14 illegal aliens after a Rhode Island state trooper stopped their van because of a traffic infraction.

Federal district judge Mary Lisi dismissed the Rhode Island ACLU's suit over the arrests, saying the trooper's suspicions were justified. Reporter Emery's story then quotes a Rhode Island ACLU shyster to the effect that the judge's ruling

"does not explain what suspected criminal activity was involved, since [a] mere presence in the country illegally is not a crime."
We hear or read this claim about "mere illegal presence" over and over, so it needs to be repeatedly slapped down.

In fact, Title 8, Section 1325a of the U.S. Code says:

§ 1325. Improper entry by alien

(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts 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.

So they can go to the slammer for illegal entry. So it's a crime!

However, there is a subtlety involved, clarified for me by University of Missouri at Kansas City law professor Kris Kobach: If you enter the country legally but overstay your visa, then your continued presence is a civil violation (simply because it hasn't been defined as something else, Kobach told me). But if you enter illegally, as more than half of illegal aliens do, then your continuing presence in the U.S. is a continuing crime.

And it's clearly possible to distinguish between the two cases. If you overstayed, you'd — potentially, at least — be able to produce your expired visa. If you entered illegally, you wouldn't be able to do that.

In other words, common sense applies — the good guys don't have to see the border sneaks actually straddling the border to infer that they're here illegally!

So a correct statement would be that, in some cases, mere illegal presence isn't a crime. But I'll bet reporter Emery quoted the ACLU's shyster accurately and that said shyster didn't include the important qualifier, since nobody ever seems to.

And as it apparently worked out, these 14 illegally-present people were of the "entry without inspection" variety.