He’s half right. The hard truth is that it’s a federal crime to cross the border but not a federal crime to be present in the United States without authorization. See this old post at MM’s immigration blog for further details. Tancredo’s been trying to close the loophole for awhile now but without much luck; in fact, it came up just a few weeks in a high profile appellate court decision in Kansas. You can, of course, be deported for being present in the United States without authorization, but deportation is a civil penalty for a violation of immigration law, not of federal criminal law.
As I say, though, Rudy’s only half right. The wrinkle in all this is that if you’re deported once and then come back in and get caught again, that is a criminal violation. The statute is 8 U.S.C. 1326; think of it as providing for one free bite at the apple. Rudy seems never to have heard of it:
GIULIANI: Glenn, it’s not a crime. I know that’s very hard for people to understand, but it’s not a federal crime.
GLENN: It’s a misdemeanor but if you’ve been nailed, it is a crime. If you’ve been nailed, ship back and come back, it is a crime.
GIULIANI: Glenn, being an illegal immigrant, the 400,000 were not prosecuted for crimes by the federal government, nor could they be. I was U.S. attorney in the southern district of New York. So believe me, I know this. In fact, when you throw an immigrant out of the country, it’s not a criminal proceeding. It’s a civil proceeding.
Beck is right, Rudy’s wrong. A second offense is a crime. Now, follow the link and let Rudy explain to you why it’s a bad idea to criminalize unauthorized presence in the United States. Ask yourself how many other criminal laws we have that would be unenforceable if we tried to prosecute all offenders but which nevertheless have some salutary deterrent effect by giving prosecutors the option of charging people with them.
Fred’s better on this issue than Rudy is, but watch this short clip from last year. He ain’t that much better.