By Joshua Holland, AlterNet
Posted on April 27, 2009, Printed on April 28, 2009
http://www.alternet.org/bloggers/www.alternet.org/138630/
Last week, in a post about right-wingers having one of their trademark fainting spells over a minor aside made by Homeland Security chief Janet Napolitano while discussing immigration enforcement, I pointed out that they were wrong on the facts and Napolitano had been correct: being in this country without papers is a civil violation, not a crime (frankly, I'm not sure why this matters, but they take these things really seriously).
I made clear that entering the country illegally is a crime (a federal misdemeanor for a first offense, and a felony for subsequent violations). But Napolitano had been correct, if unnecessarily vague, in saying that many immigration violations were "civil," because "crossing a border isn't a crime per se." What she should have spelled out more clearly was that many unauthorized immigrants -- as many as half -- entered the country legally and then overstayed their visas. Doing so doesn't violate any criminal statute, but it can get you deported. This is fairly straightforward.
Enter the blog 24 Ahead, with a post entitled, "Seth Hoy /IPC, Joshua Holland outrageously mislead about Napolitano border comments." If you define "outrageously misleading" as getting the basic facts of U.S. immigration law straight, then the anonymous blogger ar 24 Ahead is correct. Otherwise, not so much.
Here's 24 Ahead doing what right-wing bloggers excel at: inserting foot into mouth ...
Perhaps Holland would then like to explain this 2008 ICE press release:
FT. SMITH, Ark - One hundred and twenty-three illegal aliens were processed here for removal between December 2007 and January 2008 by U.S. Immigration and Customs Enforcement's (ICE's) designated Immigration Criminal Apprehension Taskforce (ICAT) in Northwest Arkansas... Most of the individuals encountered had entered the United States illegally, without inspection, and found themselves in police custody for various legal violations... The taskforce worked with the U. S. District Court for the Western District of Arkansas to prosecute seven individuals for illegally re-entering the United States after being deported and one additional individual for entering the United States without inspection... [an illegal alien] who was charged with one count of entry without inspection...
In other words, their continued presence was a crime for which they were prosecuted.
No, 24 Ahead, in the words you just quoted, ICE prosecuted a number of immigrants for "entering the United States illegally," "illegally re-entering the United States," and "entering the United States without inspection." Exactly what I said were criminal violations in the original post.
My God, these people are dense.
Now, I've noticed a few equally dazzling legal minds of the right weigh in on this, and many seem to think that the fact that we detain and deport people who are here without papers is proof that the hardliners' long-standing wish -- making it a crime -- had secretly come true (attempts to criminalize those in the country without valid documents were shot down in Congress in 2005). These folks have difficulty grasping the fact that ICE picks up plenty of people who are guilty only of a civil violation -- and that doesn't make it a criminal act.
So let me recap, really slowly for the anti-immigrant bloggers:
The United States has both a criminal code, and an administrative (or civil) code.
Being in the U.S. without papers is a civil violation, not a crime.
Entering the country illegally -- evading a border checkpoint, not showing valid papers, etc. -- is a violation of the criminal code. First violation is a misdemeanor, subsequent violations can be charged as felonies.
This is not complicated or controversial.
But don't take it from me. The Arizona Daily Star, in a piece titled, "Understanding Immigration Law":
Penalties for illegal immigrants:
* Unlawful entry: A criminal misdemeanor subject to six months in prison. Up to two years in prison for subsequent offenses.* Unlawful re-entry after deportation: A felony, up to 10 years in prison.* Overstaying visas: A civil violation. Ineligible to return to the United States for at least three years for overstays of more than six months. Barred from returning for at least 10 years for overstays of more than a year.
Monday, Christie said that while entering the country illegally is considered a federal misdemeanor, simply lacking legal immigration status is a civil violation.
Wisconsin law enforcement officers currently do have the legal authority to enforce federal criminal immigration violations, but do not have the legal authority to enforce federal civil immigration violations. Wisconsin law enforcement officers must distinguish between federal criminal immigration violations, which they may enforce, and federal civil immigration violations, which they may not enforce.
Immigration law is extremely complex, and is constantly changing. There are criminal and civil violations of immigration law. Civil violations include, for example, illegal presence and failure to depart after the expiration of a temporary visa. Criminal violations include illegal entry, re-entry after deportation, and failure to depart after an order of removal.
Now can we put this silliness to rest?
* A couple of nips and tucks were made to this post after publication.
Joshua Holland is an editor and senior writer at AlterNet.
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