Some Thoughts on Immigration Law

NOTE: Six months and a few days ago, the author of this essay would not have needed to publish it anonymously. Today it it's necessary. No one is safe from the brutality of our current government, citizen or not. Huge corporations are having to bend the knee to escape the wrath our kleptocratic autocracy and continue to exist. Suffice it to say, the author has reasons to stay out of the sights of the government goons.

Immigration is primarily managed as a “civil” matter, rather than a criminal matter. This is done so that the protections of law in criminal proceedings do not apply. For example, the right to a trial by jury, etc., which is required for a charge of a misdemeanor crime. 

The problem is that the Trump Administrative State has imposed the penalties as if there has been a conviction for the commission of a crime, without following any of the required legal processes for doing so. 

Consequently, these actors have “falsely imprisoned” many victims, not only denying them the protections enshrined in our Constitution (as written, not as overwritten recently), as well as the other unchanged laws of the USA. Perhaps you did not know that the Congress, about 20 years ago, failed to pass legislation that would have made it a crime to be in the USA “without permission.” 

“The act of being present in the United States in violation of the immigration laws is not, standing alone, a crime. While federal immigration law does criminalize some actions that may be related to undocumented presence in the United States, undocumented presence alone is not a violation of federal criminal law. Thus, many believe that the term “illegal alien,” which may suggest a criminal violation, is inaccurate or misleading. Entering the United States without being inspected and admitted, i.e., illegal entry, is a misdemeanor or can be a felony, depending on the circumstances. 8 U.S.C. § 1325. But many undocumented immigrants do not enter the United States illegally. They enter legally but overstay, work without authorization, drop out of school or violate the conditions of their visas in some other way.” 

See Criminalizing Undocumented Immigrants by the ACLU

Arguably, a minor without the legal capacity to make independent decisions (not emancipated) who is brought into the USA by others is not in the USA “illegally.” Those who have made claims for asylum, with a hearing pending, are not in the USA illegally until they have been ordered to leave, and only after all of the legal processes for review of their application have been exhausted.

In sum; “Undocumented presence in the United States is only criminally punishable if it occurs after an individual was previously formally removed from the United States and then returned without permission. 8 U.S.C. § 1326 (any individual previously ‘deported or removed” who “enters, attempts to enter, or is at any time found in’ the United States without authorization may be punished by imprisonment up to two years).” See further discussion on the topic by the ACLU, Ibid.

Mere undocumented presence in the United States alone, in the absence of a previous removal order, without an unauthorized reentry, is not a crime under federal law.