David Holford

Are Undocumented Immigrants Criminals?

There is one misdemeanor for the point of entry. This is found in 8 U.S.C. §1325(a). However, it is not a continuing crime under federal law. It is like when you drive 31 in a 30 in Texas and many other states. You commit a misdemeanor, whether you get caught or not. But since you slowed back down you are no longer committing a misdemeanor, though you could be prosecuted for it for a limited time.

In fact, every single time you exceed the speed limit you commit a misdemeanor. Even when you slow down and then speed back up, you commit another misdemeanor. Most other traffic violations in Texas are also misdemeanors, even if you don’t get caught.  In terms of criminal activity, most Texans of driving age are by thousands of times more criminals than anyone who has entered without inspection.

A person is not illegally in this country because they committed a violation of 8 U.S.C. §1325(a), just like you aren’t an illegal driver because you once went 31 in a 30 or 56 in a 55. After 5 years, 8 U.S.C. §1325 can’t even be used against them because the statute of limitations has expired.

For all practical purposes, 8 U.S.C. §1325(a) is not even a consideration except in the case of (a)(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,” though that usually happens at a port of entry. Normally the person is fingerprinted to document that they have been refused entry and why and sent back across.

The government avoids using 8 U.S.C. §1325(a) because if someone is charged with a federal crime they have to be tried in an Article III federal court and not an Executive branch immigration court where not only do the prosecutors work for the President but the judges also work for the President.

In federal court, all the constitutional protections are in place and the Government has to comply with the Rules of Evidence and the Federal Rules of Criminal Procedure. In federal court, the standard is guilty beyond a reasonable doubt. Not so in immigration court.

In federal court, the Government has to provide to the defendant all the evidence it has against the defendant (called discovery), whereas in immigration court it doesn’t and usually refuses to do so. This can only be obtained through defendant-initiated (sometimes multiple and sometimes unsuccessful and sometimes redacted) Freedom of Information Act (FOIA) requests, except in the Ninth Circuit, where there is a thing called Mandatory Access, which is better than FOIA, but not as good as proper discovery.

However, as soon as someone has crossed into the US without inspection, they are unlawfully present, which is not a criminal offense (unless they are in violation of 8 U.S.C. §1326, having previously been denied admission or deported). Unlawful presence is what leads to deportation proceedings or sometimes summary deportation by CBP or even ICE. So as far as the government is concerned, those who have entered without inspection (EWI) are not criminals and they are not subject to criminal sanctions, and by and large the government does not want them to be.

In the case of juveniles who have entered without inspection, it all gets even more complicated, because juveniles are treated completely differently under federal law than those who are over 18. They do not commit crimes, misdemeanors or otherwise, but rather acts of juvenile delinquency (or in these cases, a single one-time act of delinquency). This is a very important distinction.

As the title of this piece makes clear, this just covers EWIs. I will conclude with a few brief further considerations.

What about the many, many immigrants who came in legally, but then overstayed their visa? Anyone who has entered with inspection and is no longer authorized to be in the United States has not committed any offense whatsoever, minor or otherwise. They are just unlawfully present. However, if they are under 18, they do not even accrue any period of unlawful presence for most purposes, as how long someone is unlawfully present has various ramifications with regard to the provisions of the Immigration and Nationality Act.

All of this is the letter of the statutory law, for all of you “the law is the law” people. This does not take into consideration the legal and moral implications of the law of necessity, otherwise known as the necessity defense, nor how far one might cast that net, even without an explicitly Christian worldview.

In brief, at common law, the necessity defense includes the following elements: (1) the person acted to avoid a significant risk of harm; (2) no adequate lawful means were available to escape the harm; and (3) the harm avoided was greater than that caused by breaking the law.

However, for those who consider Romans 13:1 as overriding and controlling all of the wealth of scripture about how the stranger and alien must be treated by the body politic as well as by individuals within it, this must be taken into consideration, even when the law of the land has refused to do so, as a morally valid defense.

For those who see Romans 13 as subject to the rest of the demands of scripture, interpreted in such a way as to comply with the Torah, the Prophets and the Gospels rather than proscribe them, the law of necessity is but one in a panoply of reasons that either the misdemeanor of unlawful entry or the civil infraction of unlawful presence must yield to the Law of God.

One thought on “Are Undocumented Immigrants Criminals?

  1. Bea Gonzalez

    David; Thank you for the explanation maybe it will help someone understand the law although the people that have hate in their hearts for immigrants do not want to be educated. I really appreciate your time and effort.

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