Criminal or Civil offense for unlawful presence?
Even though Representative Sandstrom's Immigration bill passed the house 2/18/11 overwhelmingly I feel the bill will cause a rift and will cause additional problems rather than solving them. Having the truth about the issues will really help people be reasonable and personally I don't feel that the House or the Senate is educated enough on this issue to make decisions as they have recently made. Now we will need to brace for the consequences and deal with them.
At Sutherland Institute’s immigration debate on January 21, 2011, Paul Mero said, “A lack of legal status in the United States of America is not a crime, it’s a civil violation such as speeding.” He later said, “How can living here undocumented be evil when a lack of legal status isn’t even a crime?”
In response that same evening, Representative Stephen Sandstrom said, “It is not a civil violation to enter the United States illegally, it is a criminal misdemeanor subject to six months in jail and deportation…the civil violation is if you overstay a visa after lawful entry.”
So which is it? Who is correct? Are undocumented immigrants “criminals”?
In a way both of them are correct, what, how can that be? First Paul Mero is correct because in the US you are not punished or considered guilty of a crime unless your found guilty of that crime through evidence. The people that are here in the US that are undocumented have either overstayed their Visas or were not caught crossing the border. This puts this entire group of 11 million people in the category of "Unlawful Presence" or as Paul stated a CIVIL infraction not criminal. In other countries people can be considered guilty without going to court yet in the US we follow the Constitution which gives rights to US Citizens and to some people chagrin rights to those that are not US Citizens.
Next Representative Sandstrom is correct that if you are caught entering the US without inspection it is a criminal misdemeanor yet none of these people that are here in Utah were caught therefore they are not considered guilty of that misdemeanor.
So both people are correct in their own way and if Representative Sandstrom would like to go sit on the border and watch people get caught he can wittiness the process and after I spoke with several lawyers about this I was enlightened and learned how the process works or in some cases does not work.
As a legal reminder, a civil infraction is a minor violation of law that is punishable only by a fine, such as a traffic or parking ticket. A misdemeanor is a crime, less serious than a felony, punishable by no more than one year in jail, such as petty theft, first-time drunk driving, or leaving the scene of an accident. A felony is a crime for which the punishment is a year or more in prison, even death. If you commit a “crime,” not a civil infraction, you are a “criminal,” by definition.
Representative Sandstrom made reference to “entering the United States illegally” and cited United States Code “8, 1325,” meaning precisely Title 8, Chapter 12, Subchapter II, Part VIII, Section 1325, “Improper entry by alien.” It reads, in part,
(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.
(b) Improper time or place; civil penalties
Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of—
(1) at least $50 and not more than $250 for each such entry (or attempted entry); or
(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.
Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.
This citation states that entering the United States is, indeed, a crime under Section 1325 (a) – a misdemeanor on first offense, a felony on second offense, and it’s a civil infraction under Section 1325 (b). In other words, it’s at least a civil infraction and no more than a misdemeanor on first offense.
Many times the Agents at the border do not process the people crossing with criminal misdemeanors but only the civil infraction under Section 1325 (b)
Interestingly, to Mr. Mero’s point, if we read on in the U.S.C., Title 8, Chapter 12, Subchapter II, Part VIII, Section 1324d, “Civil penalties for failure to depart,” it states,
(a) In general
Any alien subject to a final order of removal who—
(1) willfully fails or refuses to—
(A) depart from the United States pursuant to the order,
(B) make timely application in good faith for travel or other documents necessary for departure, or
(C) present for removal at the time and place required by the Attorney General; or
(2) conspires to or takes any action designed to prevent or hamper the alien’s departure pursuant to the order,
shall pay a civil penalty of not more than $500 to the Commissioner for each day the alien is in violation of this section.
In other words, a “lack of legal status,” or a failure to depart once told to leave, is a civil infraction for an undocumented immigrant.
The better question for all of us in Utah to ask may be this: Which, among these laws, is most relevant to Utah? Are Utah elected officials, community groups, businesses and citizens concerned more about an undocumented immigrant’s illegal entry anywhere into the United States or an undocumented immigrant’s lack of status while in Utah?
Of course, the answers to these questions could depend heavily on where you stand. If you believe that Utah’s state and local law enforcement should become federal immigration agents, you probably will focus on United States Code referring to “illegal entry” into the country. If this is the case you will need their personal information including their full names, birth dates, country of origin an proof they entered without inspection in order to get a warrant or deportation order processed. With the few ICE agents Utah has being overwhelmed with undocumented people that are committing crimes the reality that they will begin to process NON CRIMINAL cases as any type of priority is very low. Separating families and causing great trauma to children by taking their parents or brothers and sisters away from them all because of a Civil infraction is not a prudent step to take especially when law enforcement should be concentrating on law breakers instead.
Pointing out that the US Supreme Court ruled in 2009 that undocumented people using a social security number just to work will not be charged with fraud unless there is proof they were using the false ID or numbers in order to steal. Most of the undocumented people using false social security numbers do it solely so they can work and they have federal, state, med and FICA (Social Security) taken out of their checks that they will never see. In 2009 over 9 billion in social security was paid into the mismatched funds and most of that is attributed to undocumented people paying social security using made up numbers or the numbers belonging to others.
Illegal aliens using false social security numbers will not be charged with identity theft if they were only using the number in order to work.
http://blog.lawinfo.com/2009/07/01/supreme-court-decisions-made-in-the-2008-09-term/
http://www.nj.com/morristown/index.ssf/2008/04/christie_clarifies_illegal_imm.html
This is a site that clarifies illegal’s, criminal or civil offense.
On the other hand, if you are simply concerned with how undocumented immigrants affect Utah’s public safety, freedom, and economic prosperity, you probably will focus on the parts of the Code referring to a lack of status. Especially since we cannot produce evidence or proof of them crossing without inspection. The very fact that they are in the country without documents is not proof in and of itself.
Either way, it’s important for all of us to understand that being an undocumented immigrant is far from evil in the eyes of the United States Code.
Unless your in AZ or possibly now in Utah