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Illegal Immigrants

Sparked in part by the al-Qaeda terrorist attacks of September 11, 2001, the increased governmental focus on national security stimulated a national discussion on immigration reform. Indeed, both the US government and the public have increasingly linked immigration law with national security.

Legal immigration (the admission of foreign-born persons for lawful permanent residence) grew substantially during the 1990s. During the 1988-1990 period, legal migration averaged 637,000 yearly (excluding persons legalizing under the provisions of IRCA), and by the 1992-1994 period, it averaged 830,000. Much of this increase was because of the Immigration Act of 1990, which began to take effect in 1992. That law more than doubled the number of visas available to persons who qualify for employment-based immigration. As of October 1996, the INS estimated the number of aliens residing illegally in the United States at 5 million, with a net annual inflow of 275,000 during the 1992-1996 period. By one estimate, 85 percent of immigrants in the US lived in mixed-status families.

DHS Secretary Janet Napolitano said during a CNN interview on 19 April 2009 that ".... when we find illegal workers, yes, appropriate action, some of which is criminal, most of that is civil, because crossing the border is not a crime per se. It is civil." Some opponents of immigration law enforcement claim that "Being an "illegal immigrant" is not a crime. Violations of immigration laws are civil, not criminal offenses.... other examples of civil offenses.... include paying for damages in a car accident, going to court for a property dispute, or settling a disagreement about someone's will. These are not criminal offenses, and neither are immigration violations. What is the punishment for most civil offenses? A fine. What is the punishment for immigrating to the United States without documentation, which is also a civil offense? Arrest, detention, and deportation.... By making a conscious choice not to say "illegal immigrants" and instead to say "undocumented immigrants," you can help to educate your friends, family, and community about how violating immigration laws is not a criminal offense." This is not exactly correct.

A civil offense is an infraction of a law that is not a crime. This may be something like a routine traffic offense such as speeding. The only penalty for a civil offense is a fine. A crime is a violation of the law that is punishable by a fine or a jail sentence. A misdemeanor is punishable by up to 12 months in jail. Felonies are punishable by one or more years in prison.

It is an undisputable fact that it is a violation of the criminal code to enter the country illegally. 8 U.S.C. 1325(a), which has been in effect for decades and codified in its current form since 1991, is unambiguous that doing so is a crime. Federal law provides that any alien who 1) enters or attempts to enter the U.S. at any time or place other than as designated by immigration officers, 2) eludes examination by immigration officers, or 3) attempts to enter or obtains entry to the U.S. by a willfully false or misleading representation is guilty of improper entry by an alien. A first offense under 8 U.S.C. 1325(a) is a Class B misdemeanor. For the first commission of the offense, the person is fined, imprisoned up to six months, or both, and for a subsequent offense, is fined, imprisoned up to 2 years, or both (8 U.S.C. § 1325). In the case of a defendant with repeated prior instances of deportation without criminal conviction, a sentence at or near the maximum of the applicable guideline range may be warranted.

The U.S. Immigration and Customs Enforcement (ICE) is the primary authority for enforcing immigration laws. ICE was created in March 2003 as an investigative branch of the Department of Homeland Security. ICE was the result of combining the Immigration and Naturalization Service and the U.S. Customs Service. The federal immigration service has an estimated 2000 immigration investigators. With approximately 950,000 documented and 500,000 undocumented immigrants entering the United States annually, many claim the federal government lacks the manpower to enforce immigration law. Consequently, bills introduced in Congress seek to utilize the estimated 678,000 state and local police officers for immigration enforcement.

In 2005, in the towns of New Ipswich and Hudson, New Hampshire, local police arrested eight suspected undocumented immigrants on charges of criminal trespass when they failed to provide proper identification. On August 12, 2005, however, a state judge dismissed these charges, stating that they represented an unconstitutional attempt to regulate the enforcement of immigration violations. The judge reasoned that the police action violated the supremacy clause because the federal regulation was "so pervasive" that it left no room for supplementation by the states. But others argue that arresting aliens who have violated either criminal provisions of the INA or civil provisions that render an alien deportable is within the inherent authority of the states, and that this inherent arrest authority has been possessed and exercised by state and local police since the earliest days of federal immigration law.

Congress has expressly authorized state and local police to arrest for violations of certain criminal violations of the Immigration andNationality Act (INA). Specifically, they canmake arrests for the federal immigration crimes of smuggling, transporting, or harboring illegal immigrants (§ 274 of the INA) and illegal reentry after a final order of removal (§ 276 of the INA). In the AEDPA of 1996 Congress authorized state and local law enforcement to arrest and detain an individual who is illegally present in the United States and has been previously convicted of a felony and deported or left the United States after such conviction (§ 8U.S.C. § 1252c).

In 1996, when the Illegal Immigration Reform and Immigrant Responsibility Act added Section 287(g) to the Immigration and Nationality Act, local police, upon entry into a memorandum of agreement with the U.S. Department of Homeland Security (DHS), were granted the authority to enforce federal immigration laws. Pursuant to Section 287(g) agreements, police who meet the requisite federal training standards are authorized to enforce federal immigration law under the supervision of DHS. Notwithstanding the benefits derived from Section 287(g), only a fraction of a percentage of police and sheriffs' departments has opted to participate. If local police are perceived as immigration enforcement officers, immigrants - both documented and undocumented - will avoid contact with police.

Most Police agencies check the status of individuals arrested and detained for a criminal law offense and inform ICE when they encounter non-citizens. The more serious the violation of criminal law, the more likely agencies were to contact ICE regarding criminal detainees in violation of immigration law. Thus, for instance, only slightly more than 20 percent of agencies check immigration status of traffic violators, whereas over 80 percent check immigration status of those arrested for a violent crime.