One of the more popular verbal tricks employed by open border advocates in debates over immigration reform is to say that it’s, “not a crime to be in the United States illegally.” We’ve seen this trope trotted out before many times but it’s popped up once again at Politifact this week. This bit of “fact checking” was spurred by a debate in the Florida State House of Representatives over new penalties for illegal immigrants who commit violent crimes. As part of that discussion, one of the Democrats involved made a point of declaring that those in the country illegally are not guilty of committing a crime, but rather a “civil violation.”
This truly is the type of linguistic gymnastics which liberals always fall back on when attempting to obfuscate the obvious and cloud the issue. The Politifact team summons up a couple of experts to immediately support this assertion.
[Ingrid M.] Delgado said, “Unlawful presence is not a crime. It is a civil violation.” …
But we wanted to get to the bottom of whether undocumented immigrants were committing a crime by just being in the country.
According to legal experts, the answer is that most of the time, unlawful presence is not a crime.
When we checked with the Florida Conference of Catholic Bishops, Michele M. Taylor, the group’s associate director for communications, pointed to the 2012 Supreme Court case Arizona vs. United States. The majority opinion found that “as a general rule, it is not a crime for a removable alien to remain present in the United States.”
Okay, so to a certain extent there is at least some truth found in these statements.If you find someone who is in the country illegally they may indeed be committing a “civil violation” (rather than a felony or misdemeanor) as you’re looking at them, but if they crossed the borders without appropriate permission they were already guilty of an actual crime. FindLaw lays out the distinction between Unlawful Presence and Improper Entry.
To be clear, the most common crime associated with illegal immigration is likely improper entry. Under federal criminal law, it is misdemeanor for an alien (i.e., a non-citizen) to:
Enter or attempt to enter the United States at any time or place other than designated by immigration officers;
Elude examination or inspection by immigration officers; or
Attempt to enter or obtain entry to the United States by willfully concealing, falsifying, or misrepresenting material facts…
But mere unlawful presence in the country is not a crime. It is a violation of federal immigration law to remain in the country without legal authorization, but this violation is punishable by civil penalties, not criminal. Chief among these civil penalties is deportation or removal, where an unlawful resident may be detained and removed from the country.
In other words, it all depends on how you arrived here. If you snuck in without permission you are guilty of Improper Entry (which is in fact a crime) as well as the aforementioned civil violation of Unlawful Presence. If, on the other hand, you came here on a visa and decided to stick around after it expired you may not technically be committing “a crime” but you are still in violation as the Department of State reminds us on their website.
But it’s also rather disingenuous to conflate the act of Unlawful Presence with other civil violations. Politifact calls on a quote from Ilya Shapiro of the Cato Institute to put forth precisely this line of deceptive thinking.
“Not everything that’s illegal — meaning against the law or violating the law — is a crime,” Shapiro said. “There are civil violations, like when you get a parking ticket. ‘Unlawful presence’ is one of these. You don’t go to jail or receive any other criminal punishment for being in the country illegally — you get deported.”
Let’s stop and think about that for a moment. We’ve just seen someone compare the condition of being an illegal alien with that of receiving a parking ticket. By strictly following the definitions that may be technically true, but illegal immigration is virtually unique in the broader world of civil violations. If you get a parking ticket (heck even if you get hundreds of parking tickets) nobody is going to throw you into a wagon, haul you off to a cell, march you in front of a judge and then put you on a bus and eject you from the nation. You wind up having a small fee to pay at worst in the case of almost all other civil violations. Just because the two things fall under the same broader definition, it’s hardly an example of “fact checking” or any form of “truth telling” to conflate the two as if they were even close to being the same thing.
This is a disingenuous dodge which the open borders crowd loves to keep bringing up over and over again. Sadly, I don’t see any end to this practice on the horizon, but it should be called out whenever we find it.