Quote:
Originally Posted by August
Good point. Let's start with Wikipedia:
Section 1325 in Title 8 of the United States Code
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Great!
This is a commonly cited law. So common that it is on wikipedia. But is this the law that is most applicable to the issue?
Ok, let's start with this law. I am not a fan of using wikipedia so let's use this as our citation
http://www.law.cornell.edu/uscode/8/...5----000-.html
Quote:
§ 1325. Improper entry by alien
(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.
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Paragraph B deals with being caught while entering.
Paragraph C deals with Fraudulent Marriage
Paragraph D deals with commercial trafficking companies
Paragraphs b,c,d don't apply to the scenario explained next.
And let's use the following scenario as our test case.
Man standing at the corner of Oak and Main in Ponca City OK. Police suspect that this man is an "illegal alien". So in the best of American tradition the officer asks "let me see your papers". Man says, "I ain't got none" The officer arrests this man.
Let's see if this law (section 1325) could be used to prosecute this man. I think this is a good basic scenario for testing whether this law is aplicable to the issue of whether an undocumented alien is breaking the law simply by being in the country.
Consider two tenets of our legal system
1. The prosecutor needs to prove, beyond reasonable doubt, all the elements of the crime (more on the elements later)
2. The prosecutor needs to prove guilt. The defendant does not need to prove non-guilt.
The first step is to identify the elements of the crime. These are listed in the law, of which one is cited above. Elements are either an “and” or an “or”. In the cited law elements within the numbered paragraphs are “and”. Elements in different numbered paragraphs are “or”. The prosecutor needs to prove all the appropriate “and” elements, but only one of the “or” elements.
The first set of elements are “enters or attempts to enter the United States at any time or place other than as designated by immigration officers”
The prosecution would need to prove that our gentlemen
a. Entered the US
b. Entered at a time or place other than as designated by immigration officers
How would the prosecution attempt to prove these? Remember the defendant does not have to prove their innocence. The prosecutor needs to prove that this person did not cross at a designated place, but needs to prove that this person entered at a non-designated place. Very difficult to prove when the person is hundreds of miles from a border.
The second set of elements are “eludes examination or inspection by immigration officers”
The prosecution would need to prove that this person eluded examination or inspection by immigration officers. Again, how would a prosecutor prove this (proving a negative as it were). Very very difficult.
The third set of elements are “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”
Again very hard to for the prosecutor to prove.
It is my position that section 1325 is not the applicable statute for prosecuting someone already in the borders. This law is for prosecuting people caught in the act of crossing the border. It would be very easy to prosecute this law if a border patrol officer observes the person crossing the border. This only makes sense as this law is entitled
“Improper entry by alien”
I think we need to find another law that is more applicable to someone who may or may not have crossed a boarder in the past. A law that focuses on making the presence of a person without documentation illegal.
The problem is that I have not been able to find such a federal statute. I am pretty experienced in legal research but I am not perfect. That is why I asked the question for someone to find a law that applies to persons already well inside the borders. According to my research, I have not found one.
Since in the US, we don't have a National Identification Card, nor are people required to establish their citizenship unless they are trying to apply for something that is controlled by the government.
This is why people are rarely prosecuted solely for being an undocumented alien. It is just too hard to prove unless the defendant confesses or they are caught on/by the boarder. The prosecutor is put in a position of proving a negative.
Undocumented aliens are usually prosecuted for other crimes (weapons, drugs, trafficking, etc) and it is this prosecution that gets them deported. Or they are given administrative hearings prior to deportation.
Administrative hearings are not trials. Rules of trial evidence don’t apply to administrative hearings. In administrative hearings the defendant may have to prove their non-guilt. However, administrative hearings do not result in convictions, and the defendant does not have a misdemeanor or felony record after the hearing. They are, however, deported.
This is why the question, why are they not treated like criminals is not as silly as it might first appear. A person deported via administrative hearing is not a criminal.
So I ask everyone’s help in my research. I would really like to find a federal statute that we can cite that would make the presence of a person inside the US without documentation a crime. Section 1325 is focused on the entry.
I have been looking for several years and have not found one yet. But I could have missed something.