Illegal immigration. Is it a crime or not?

posted at 8:31 am on February 16, 2013 by Jazz Shaw

The President has been back out on the road again, spinning heartwarming tales and pushing for his second term agenda, as you’d expect any recently reelected leader to do. I’ll confess that I had a hard time paying attention to a lot of it, what with asteroids crashing to Earth on poop filled cruise ships and all, but there was one theme which caught my attention. He’s going all in on the hot new fad of comprehensive immigration reform.

President Barack Obama told a group of Senate Democrats Wednesday that Congress must move forward with comprehensive immigration reform, or else he will propose his own legislation on the hot-button topic…

In a description of Wednesday’s meeting, the White House said Obama “reiterated the key principles he believes must be a part of any bipartisan, commonsense effort, including continuing to strengthen border security, creating an earned path to citizenship, holding employers accountable and streamlining legal immigration.”

Everyone seems to be talking about it these days, and not just Democrats. Republicans from Marco Rubio to John McCain have their own proposals, many of which involve some form of what the President is talking about. You can call it a “path to citizenship” or amnesty or Expedited Entry… whatever you like. But for some reason there are still quite a few of us who hear proposals such as these and get an uneasy feeling. For some of us, it may even be hard to quantify exactly what’s wrong. But if you harbor any such qualms, of course, you will be immediately labeled… say it with me…

A racist.

Whatever. But as I considered the question this week, I realized that there might be a better way to describe exactly why this sounds troubling. And to understand it, you really need to talk about the story of Ray Bowman and William Kirkpatrick. Those names might not be familiar unless you lived in the Pacific Northwest in the 90s, but they were something of a legend. In a career spanning more than 16 years they robbed 28 banks around the country for a total of more than $7 million. I’m not going all anti-hero worship on you here, but you’ve got to admit… in terms of raw focus and mission attention, these guys were good. They stole a LOT of money without getting caught.

But the law finally caught up with them, and in 1999 they went to trial and were sent to lengthy stretches in the Crowbar Motel. Now here’s the thing about their story… during the trial, not one person – not in the media, the public, the courts or the government – not one single person stood up to say anything remotely like the following:

You know, yeah… okay.. they stole the money. But they’ve had it for a really long time now. And their families are depending on it for retirement and the kids’ college. Some of it is invested in various places and we’d have to draw it out. Maybe, after all this time, we should just let them keep it.

Why did nobody say that? The answer is because they broke the law and they got caught. This applies for virtually any other law you could name… except for illegal immigration. As things stand now, crossing the border without the proper authorization and paperwork is a crime. Beyond that, continuing to stay here without said credentials is also a crime. If you do this, you are committing a crime each and every day that you are here. But for some reason, we seem to be reaching the point where we’re fine with treating this as more of a game of Red Rover Red Rover. Yes, it’s a crime to come over the border uninvited, but if you make it to home base, maybe we’ll just forget about it.

Now, before the inevitable, hollow argument comes flying back at me here, I’m not talking about anything resembling the statute of limitations. (Why we have a statute of limitations is a debate for another day.) Bowman and Kirkpatrick kept committing crimes all through their run. And people who are here illegally continue to break the law every single day by the simple fact of being in the country. If you want to have a discussion about a statute on illegal immigration where people can leave for seven years and have it dropped from their record… fine. We can have that debate. But it doesn’t apply to this situation.

Allow me to also answer the second, inevitable question which crops up every time we have this discussion. No, I have no idea what to do about the five million or twelve million or twenty million illegal immigrants currently breaking the law every single day in this country. I have not even the beginning of a hint as to what should be done about it. I also don’t know what to do about the 90% of robberies that go unsolved each year. But I’m pretty sure that the answer isn’t to decriminalize theft.

I’ve had some conflicting feelings about this immigration question myself, I confess. But America either is or it is not a nation of laws. If we are to change our system so that entering our nation without permission is no longer a crime – or at least not that serious of one – then lawmakers need to make that clear. But don’t tell us you’re doing it just because you can’t figure out how to stop people from breaking the law. And if keeping control of our borders and retaining management of who does or does not enter is still an important priority and a criminal matter, that should be made clear also. What we’re getting out of Washington now is static, clarifying nothing and selling a feel-good product which doesn’t seem to address any of these questions.


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It’s funny (weird, but funny) to see people commenting on a post headlined “Illegal Immigration: Is it a crime or not?” insisting that it somehow is a crime notwithstanding the absence of any criminal statute making it a crime, that there is no “real” difference between a crime and a civil offense, that the distinction of criminal from noncriminal acts is “Orwellian” or “double talk” or “pinhead dancing”, and all manner of other things whose sole purpose seems to be to avoid the indisputable facts that merely being an illegal immigrant is not a crime, and that matters. It matters a lot. Jazz is right on that point. By not criminalizing just being an illegal immigrant Congress has for centuries indicated that Congress, the entity given primary power over immigration by the Constitution, has never considered merely being an illegal immigrant to be a particularly serious offense, one that should be a crime. People who attempt to substitute their own theorizing for Congressional provisions on these matters just defy the Constitution.

But there are criminals in this picture! Serious federal felons, in fact! While Congress has never made being an illegal immigrant a crime, Congress has criminalized employing illegal immigrants. Section 8 USC 1324(a)(1)(A)(iv)(b)(iii):

“Any person who . . . encourages or induces an illegal alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each illegal alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both.”

Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):

A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:

assists an illegal alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or
encourages that illegal alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or

knowingly assists illegal aliens due to personal convictions.

Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. )

Despite all this criminalization, employment of illegals is widespread, which is why they can remain in the country.

Why is there no clarion call in these comments for rounding up these felons, that is, these criminal employers? And why should the customers of these employers not be subject to sanctions? Of course, if that were done, virtually every home owner in California and Texas would be spending time in the federal pokey. But, still, the law is the law, isn’t it? Don’t we need to teach these criminals, these federal felons, a lesson they’ll never forget? The likelihood that millions of employers, and all those millions of middle class homeowners who ever hired Home Depot parking lot guys to set patio stones “no-immigration-question-asked”, would have their lives and businesses destroyed by having to endure federal criminal prosecution shouldn’t stand in the way of principle, should it!

KenMcK on February 20, 2013 at 12:27 PM

Why is there no clarion call in these comments for rounding up these felons

“Clarion”? LOL. Like melodrama much?

The title question and the topic was “Illegal immigration. Is it a crime or not?”

But… when you’ve exhausted your argument, haven’t gotten anywhere, and can’t/won’t answer outstanding question addressed to you, and when you have run out of insults and don’t know what else to do, then try to change the subject and try to get others to answer your new questions. Sometimes it even works.

farsighted on February 20, 2013 at 2:44 PM

Recognizing the fact that illegal immigration is not a crime, and therefore that Congress – the entity charged with the Constitution with the decisions in this area – has never considered illegal immigrants to be culpable of an offense serious enough to Illegal immigration. Is it a crime or not?
be criminalized, is an important first step in understanding what an appropriate resolution of the current state of affairs should look like. When one adds to that the facts that literally tens of millions of American citizens HAVE committed immigration law felonies and that all levels of government have been hugely complicitious in creating the problem, it becomes obvious that “just enforce the law and deport them” (the clarion call made in these comments) is not only not a solution, but is ridiculous. The central issue is not that illegal immigrants are “bad people.” For that matter, neither are the criminals who employ them.

KenMcK on February 20, 2013 at 3:49 PM

The first part of the above post should read:

Recognizing the fact that illegal immigration is not a crime, and therefore that Congress – the entity charged with the Constitution with the decisions in this area – has never considered illegal immigrants to be culpable of an offense serious enough to criminalize, is an important first step …”


KenMcK on February 20, 2013 at 3:58 PM

Which would mean that every suburban housewife who refers an illegal immigrant housekeeper to a neighbor should spend a few years in Leavenworth. Sure. That’s what the country wants and justice demands.

KenMcK on February 20, 2013 at 10:02 PM

Ah, blink, if you read the actual criminal statute that I copied above you will see that it is criminal to employ or refer for employment anyone known to be an illegal immigrant. If the laws are to be enforced, the criminal employers and referrers need to be punished first. The housewives go into the pokey. Congress has provided prison sentences for them. But from your response it’s pretty obvious that you, personally, don’t want those criminal laws enforced.

Snarling, name calling and making up your own version of the law is not going to change the facts, but you might want to look to your blood pressure.


KenMcK on February 21, 2013 at 5:14 PM