Republicans Believe Illegal Immigration 'Should be a Crime'

[Platapus]

Originally Posted by August

Good point. Let's start with Wikipedia:

Section 1325 in Title 8 of the United States Code

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

§ 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.

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.

[Sailor Steve]

Is there a law against crossing the border without permission? Would breaking that law be a crime?

[mookiemookie]

May be of interest:

9th Circuit Court of Appeals:

Cupa-Guillen argues that § 1326 violates due process because it punishes solely on the basis of his status as an alien. More specifically, he claims that § 1326 sets forth a strict liability offense which punishes "wholly passive conduct." According to Cupa-Guillen, being subjected to criminal liability for violating *863 a statute unaccompanied by any activity whatever, other than merely being present in the United States, is unconstitutional. He analogizes to Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), where the Supreme Court held that a person cannot be convicted of a crime simply because he has the forbidden status of being a drug addict.
[2] [3] Cupa-Guillen misinterprets § 1326 because the statute does not set forth a status crime. Where an offense is based on an underlying act which society has an interest in preventing, the offense is not a status crime. See United States v. Kidder, 869 F.2d 1328, 1332 (9th Cir.1989). Cupa-Guillen is not being punished simply because he has the status of an alien. Instead, the statute specifically punishes the act of illegally re-entering the United States without permission after having been previously deported and convicted of an aggravated felony. See 8 U.S.C. § 1326(b)(2). [FN3] Cupa-Guillen was convicted and sentenced for his actions in committing two prior aggravated felonies, being deported, then illegally returning to the United States without the permission of the Attorney General. Therefore, because § 1326 requires an affirmative act of re-entry, Cupa-Guillen's mere presence argument fails.

FN3. To obtain a conviction under § 1326(b)(2), the government must prove that: (1) the accused is an alien; and (2) the accused unlawfully re-entered the United States after being deported and convicted of an aggravated felony. See United States v. Gonzalez-Medina, 976 F.2d 570 (9th Cir.1992).

A mere presence argument fails to include actus reus - the act of illegal entry. Sure, it's legalese and completely contrary to common sense, but the way I understand that the law is set up, you can't say someone is guilty of crossing the border illegally just because they're in the country illegally.

[Platapus]

Originally Posted by mookiemookie

May be of interest:

9th Circuit Court of Appeals:



A mere presence argument fails to include actus reus - the act of illegal entry. Sure, it's legalese and completely contrary to common sense, but the way I understand that the law is set up, you can't say someone is guilty of crossing the border illegally just because they're in the country illegally.

Great find.

Section 1326 deals with punishment for aliens who have already been deported or have had deportation orders and are found in the country.

...any alien who— (1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission; or
(B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act

So if an alien has been caught once and given a deportation order and violates that order, he or she can be charged with a criminal act.


However, US v. Cupa-Guillen, 34 F. 3d 860 (1994) seems to refute that. I think I am going to read up on that case. Looks interesting.

Most interesting find. Thanks for posting it.

[August]

Trust lawyers to screw up what should be a straight forward thing. If someone is in this country illegally we should be able to boot them out when we catch them.

Trust lawyers to screw up what should be a straight forward thing.

Very few things are straightforward when it comes to law.

[Sailor Steve]

Originally Posted by Tribesman

Very few things are straightforward when it comes to law.

That's because most laws are made by lawyers for other lawyers. Job security.

[Platapus]

Originally Posted by Sailor Steve

Is there a law against crossing the border without permission? Would breaking that law be a crime?

Yes. The law August cited addresses that, but the prosecution needs to prove that the person crossed the border illegally. It can't be assumed or inferred unfortunately.

The difficulty is proving that a person illegally crossed a boarder, months/years after the fact with no physical evidence.

It is an unfortunate loophole in the way the laws are written. This is actually the loophole that the Arizona legislation were motivated by.

The solution might be to change the laws so that non-citizen legal aliens do have a obligation to positively prove that they are in the country legally. But that would also require citizens to also be required to prove their citizenship which can raise other complications.

It is not an easy issue to solve.

[CaptainHaplo]

Originally Posted by Platapus

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

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.

Platapus,

Your logic is flawed, because to enter the country legally:

Q: What Documents Must You Present?A: A foreign national entering the U.S. is required to present a passport and valid visa issued by a U.S. Consular Official unless they are a citizen of a country eligible for the Visa Waiver Program, a lawful permanent resident of the U.S., or a citizen of Canada.

Source: http://www.cbp.gov/xp/cgov/travel/id...to_the_u_s.xml


Any visa issued is recorded - and thus can be demonstrated to exist - or in the case above - to not exist. A simple records check - did Mr. Juan Gonzales get issues a visa? Yes or no? US Consul's do not just hand out these documents without there being a paper trail. After all, if they didn't have a paper trail, they couldn't look up someone's immigration status, now could they?

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.

Simple - you cannot BE present legally in a location if you did not gain entry to that location in a legal manner.

Lets say you put up no trespassing signs in your yard all around your house. On day, you go to the store and when you get back, you enter your home to find me sitting at your table, drinking and eating stuff from your fridge. By your logic - if you don't have no trespassing signs posted in every room in your house, I could LEGALLY be in any rooms that don't have the sign - as long as I am not caught sneaking into it! Maybe I flew down the chimney - or if thats illegal - maybe I teleported in or used a star trek transporter. After all - my mere presence does not - using your logic - prove any illegal action actually occured. My presence does not show any violation of the trespass borders you posted.

Now if your ok with that, fine. But I assure you - most of the people who live in a free society are not. Seriously - I know your smarter than this though.

[mookiemookie]

Originally Posted by CaptainHaplo

words

It's not his logic. Its the logic of the courts. Read U.S. vs Cupa-Guillen, as was already linked in this thread. Mere presence is not actus reus in the eyes of the law, as illogical as it sounds. To try and make some sense out of it, the court compares it to being a drug addict. If someone's a heroin addict, can you bust them for possession of heroin? I mean they had to have possessed it at some point in order to become addicted. The law says no, you can't.

[Platapus]

Originally Posted by mookiemookie

If someone's a heroin addict, can you bust them for possession of heroin? I mean they had to have possessed it at some point in order to become addicted. The law says no, you can't.

That is an excellent analogy. Common sense tells you that if a person is under the influence of cocaine, for example, that they must have had possession, even for the shortest of time. But if the addict has injected/injested/ect all of the drug, the law says that you can't convict them of possession. After all, there is no drug left to bring to the courtroom as evidence. How can the court convict someone of possessing something when there is nothing to possess?

Yes many times the law appears not to make sense and I will certainly agree that the law is complicated. Perhaps overly complicated.

And this is why juries need to be briefed on the law, its elements and how the judicial system works concerning proof - because it is not intuitive to non-legally educated people.

[Onkel Neal]

Finally, people are getting serious about this problem
http://news.blogs.cnn.com/2011/06/09...law/?hpt=hp_t2

[Platapus]

As long as they start holding the employers accountable to this new law, I am in favour of it.

[AVGWarhawk]

Originally Posted by Platapus

As long as they start holding the employers accountable to this new law, I am in favour of it.

Some do. Here in MD there is a raid every now and then. Problem with it is some get outraged about the raids. Human rights, yadda yadda. It is a growing problem and concern. As we see, other states are following suit.

[Platapus]

Originally Posted by CaptainHaplo

Your logic is flawed, because to enter the country legally:


Simple - you cannot BE present legally in a location if you did not gain entry to that location in a legal manner.

I know your smarter than this though.

Thank you, I appreciate the complement, but honestly my post is more a factor of my experience in legal research than in intelligence. But, I am afraid that it is your logic that is flawed. If you go back to my post, I explained that the prosecutor needs to prove all the elements of the crime, there can be no assumptions nor presumptions.

Yes it is a common sense inference that if a person did not enter legally, they can't be present legally. However, that is not how the law works. The law does not work on common sense inferences, but on proving the elements of the crime as listed in the law. That and the tenet that the prosecutor has to prove guilt, the defendant does not have to prove non-guilt.

The problem is that the way the Title 8 laws are written, it is difficult, not impossible, to prove that a person is in the country illegally, unless they confess, or in the case of Section 1325 they are caught on the boarder.

This is why prosecutors like to find other charges that are easier to prove (drugs, weapons, tax-evasion, trafficking, etc.) to criminally deport people or go through the non-criminal administrative hearing route which is a lot easier and therefore the preferred way of handling this issue.

Now, there is a poser: How would anyone of us reword or make up a new law that would make it easier to prosecute?

Remember that prosecutor has to prove ALL elements and that the prosecutor has to prove guilt.

That should be an interesting discussion.