Below is my column in The Hill newspaper on continued claims about undocumented immigrants and their legal status. There is a growing misrepresentation of the status issues that are deeply concerning. While undocumented status can be treated as a civil matter, it is also a criminal matter when a person enters the country illegally. Some politicians and commentators have been stating simply that all undocumented persons are non-criminals while others have suggested that persons are “perfectly legal” if they claim asylum even if they entered illegally. The point is that not all such persons should be treated criminally, but rather these statements can be dangerously misleading for families considering an illegal crossing. The Trump Administration has shifted enforcement toward greater criminal than civil enforcement. As for asylum claims, they are not the majority of illegal entries but the numbers are clearly rising. We are required under international law to consider such applications, but that does not mean that the entry was lawful or that such cases cannot raise risks of criminal enforcement. With so many lives at risk, we need to be more accurate in how we describe the legal realities of illegal entry.
Here is the column:
It sounds like a pitch that only the most craven coyote smuggler would make: If you make it into the United States, you are lawful. Yet, that seems to be the claim by various activists and politicians as our immigration debate continues to divide to the furthest extremes.
The latest iteration came from CNN political analyst and USA Today columnist Kirsten Powers, who insisted on air that people brought by coyotes over the border are doing something perfectly legal under federal law, since most seek asylum. The greatest danger from such statements is not the risk of misleading viewers but misleading immigrants who take such statements as an accurate description of the law.
Sen. Kamala Harris (D-Calif.) has repeatedly declared, “An undocumented immigrant is not a criminal.” When asked if she meant everyone here illegally, both those who entered illegally and those who have remained illegally, she replied, “Two obvious points. It is a civil violation, it’s not a crime. Period, full stop. And the second point is that there is a whole community that is being vilified because of this misinformed, misdirected term ’illegal alien’ … It’s actually ignorant and we can’t afford to run our country that way. So they are not criminals.”
Albany Mayor Kathy Sheehan similarly stated, “Simply being in this country without documentation is not a crime,” adding that the “Supreme Court has said that.” That representation was declared “mostly true” by Politifact. This growing mantra is often sustained by the careful parsing of terms. For example, Politifact quoted Nancy Morawetz, professor of clinical law at New York University School of Law, as saying, “Being present in the U.S., that status, is not a crime.” However, people do not simply materialize within the United States. There remains the question of entry. Illegal entry into the United States has been prosecuted as a criminal matter for decades, though the percentage of cases handled criminally versus civilly has fluctuated with different administrations.
Indeed, if it were true that illegal entry was not a crime, the entire Trump administration enforcement program, and thousands of such cases under President Obama, would have been struck down months ago. In fact, the government can charge illegal entry, even for first offenders, as a crime under 18 U.S.C. 3559 with up to six months imprisonment. Subsequent offenses or reentries, which are common, can be charged as a felony with up to two years imprisonment under 8 U.S.C. 1325. Nonviolent offenders who were removed before their prison sentences were served can be imprisoned for up to 10 years after a subsequent illegal entry.
It also is not true, as suggested by both Sheehan and Politifact, that the Supreme Court has declared all undocumented status to be a purely civil matter. They are referring to United States v. Arizona, in which the court stated that, “as a general rule, it is not a crime for a removable alien to remain present in the United States.” The court, however, was speaking of a state law allowing police to arrest anyone on suspicion that they are “removable from the United States.” That would include people who entered legally but overstayed their visas or their once lawful status.
The court was not saying that someone who enters illegally cannot, by definition, be charged criminally or that illegal entry is not a crime. The court said that it did not have to “address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis” for such arrests by state officers, distinguishing the crime of illegal entry from the removable violations addressed in the decision.
In her exchange with Jake Tapper on CNN, Powers insisted that those who cross illegally with coyotes are, by law, here legally so long as they claim asylum: “It’s not illegal to come to the country to seek asylum, which is what most of these people are doing. A lot of Republicans have [said] it is illegal unless you’re at a port of entry [but] that’s absolutely not true.” She added that the Immigration and Naturalization Act states “quite clearly that you can come anywhere. It specifically says you do not have to come to a port of entry and these people don’t even know where a port of entry is anyway. They’re being brought by coyotes mostly and brought to the border so they’re not doing anything illegal to start with.”
In fairness to Powers, Section 208 of the Immigration and Naturalization Act allows asylum claims to be made at any time, including as a criminal defendant for illegal entry. That does not mean that anyone claiming asylum automatically has legal status. That deals with your filing of a claim, not the legality of your entry or ultimate status. It is not illegal to seek asylum. It is illegal to do so without entering through a port of entry without documentation. Notably, even when treated through a civil removal proceeding, it remains an unlawful entry.
Coyotes are generally smugglers hired to bring people across the border. While a few people “don’t even know where a point of entry is,” there are more than 300 of them found on all of the main roads leading into the country. In addition, while rising, filings for asylum are not “what most of these people are doing.” There were 408,870 illegal entries in 2016 and 303,910 in 2017. Asylum applications reached 116,000 in 2016. Moreover, the number of accepted asylees tends to run about 20,000 per year. Among those applying, a huge percentage never complete their paperwork and only around 20 percent of applications are granted.
Many people are deported without hearings under a 1996 statute used by the Obama administration and now the Trump administration. These people are captured within 100 miles of the border and within 14 days of entry. If they claim asylum, they can appeal to an immigration judge who must rule within seven days. In 2013, 44 percent of all 438,000 removals from the United States were done through the expedited process. That was before President Trump. Even if a person asserts asylum and completes the application, the government can still pursue criminal charges. If the asylum application is rejected as meritless or unsupported, the person can be prosecuted or deported.
There are good faith positions on both sides of the immigration debate. Whether it is the president or the press, however, it does a disservice to citizens and noncitizens alike to exaggerate or misrepresent the law on illegal entry into this country. The undocumented individuals making this perilous journey should not be misled into believing that just entering the country makes them “perfectly legal,” even if they claim asylum. That does not mean President Trump’s policies are correct or fair. But spinning the law, so popular with some, is downright perilous for others.