I heard the other day that it is not a criminal offense to be an illegal alien, it is a civil offense. Being an ever-curious fellow, I looked it up. To my surprise, the answer is … both. From Findlaw:
Improper Entry Is a Crime
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.
The punishment under this federal law is no more than six months of incarceration and up to $250 in civil penalties for each illegal entry. These acts of improper entry — including the mythic “border jumping” — are criminal acts associated with illegally immigrating to the United States.
Like all other criminal charges in the United States, improper entry must be proven beyond a reasonable doubt in order to convict.
Unlawful Presence Is Not a Crime
Some may assume that all immigrants who are in the United States without legal status must have committed improper entry. This simply isn’t the case. Many foreign nationals legally enter the country on a valid work or travel visa, but fail to exit before their visa expires for a variety of reasons.
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. Unlawful presence can also have negative consequences for a resident who may seek to gain re-entry into the United States, or permanent residency.
Both improper entry and unlawful presence should be avoided by any immigrant to the United States, but an illegal alien cannot be criminally charged or incarcerated simply for being undocumented.
Fascinating … it turns out that sneaking across the border is a criminal offense, while overstaying a visa is a civil offense.
Part of the problem that I can see from looking at these laws is that six months in a US jail sounds terrible to your average citizen … but to some young guy who has been in a Mexican jail, and lived in a Mexican slum, six months in a US jail is a government-paid holiday.
Here’s how I learned second-hand that I never wanted to find out first-hand about the joys of Mexican jails.
When I got out of the nuthouse, I just wanted to travel. I was done with walls. I wanted to move. I wanted to wake up in one place and go to sleep in another. I wanted to be on the road. My best friend Mel had gotten out of the same nuthouse a few months before me, and he felt the same.
A few months after I turned 21, Mel and his girlfriend Andrea and my girlfriend Michelle and I decided that we’d go to Mexico. Starting in San Francisco, we drove Mel’s old car to the border, on the road down through Phoenix to Nogales. It was wonderful to be in the car and moving, with best friends and lovers, and particularly with no bars across the windows and no locked doors. At night we’d find some isolated location and roll out the sleeping bags.
We came into Tucson in the afternoon. The orange trees were in bloom, and the air was warm and heavy with the sweet scent. I opened the window and breathed deeply, letting the hot spicy citrus-flavored air bake the nuthouse cold out of my bones.
In the evening we got to the border. We slept out of town in the desert. We wanted to start early, so we could cross the desert before the afternoon heat. At the break of day we went to the Mexican border station and tried to get across. No joy.
The problem was that all of us were 21 or over except Andrea, who was 20. As a minor, she couldn’t go to Mexico without a letter from her parents.
So to solve the problem, Mel and Andrea decided to get married. They’d been living together for a while, been through good times and bad together, and under the rules, if they were married, she didn’t have to be 21.
We went and hunted up the address of a Justice of the Peace and knocked at his door. He was a toothless old man, still half asleep. He welcomed us in wearing his pajamas and robe, and hollered at his wife that some young folks wanted to get married. His wife came out with her hair in curlers, as full of warmth and welcome as her husband. He went in the back. She shooed a half dozen bluetick hounds out of the front room. She offered us coffee. Her husband came back. He was neatly dressed. I noticed that this time he had teeth.
Despite the hour and the lack of notice, the JP and his wife put on a wonderful marriage service. His wife had removed the curlers and brushed out her hair, and put on a lovely dress. It was clear that she both cared and was caring. The dogs glided silently back in about halfway through the service. Apparently they approved, they wagged their tails.
The JP said all the right words. His wife smiled a blessing. The groom and the bride kissed. We thanked the JP and his wife, and paid him the fee. They wished the newlyweds well, and we went off to cross into Mexico.
When we got back to the border that afternoon, just before we arrived at the Mexican station we noticed the most world-beaten man you could imagine staggering across the border towards us. In the words of Robert Service, “He looked like a man with one foot in the grave, and hardly the strength of a louse”. His clothing was rags and tatters. He was barefoot. He had no hat, and his face showed the signs of partially healed and peeled sunburn. Curious what could lead a man to such a state, we waved him over. He told us his story.
A few months before, just like us, he’d decided to visit Mexico. Just like we were planning to do, one night he was camping out when the Federales arrested him. He didn’t speak Spanish, so he still wasn’t entirely clear why he’d been arrested. He said he thought it was because like us, he had long hair.
He had been given a summary trial which he didn’t understand and found guilty. He was put in a sealed van with a bunch of very uncongenial criminals and driven for what seemed like hours. When the doors opened he found himself in some jail or prison somewhere. He had no money, which in a Mexican jail is a Very Bad Thing™. In a Mexican jail you need to pay for various non-essentials like food …
Right off his shoes were stolen. He didn’t speak the language, although he learned some gutter Spanish in jail. Without money to buy food, all he got to eat was beans and water. He was kept there for three months, while he was pressured to buy his way out. The jailers had started at $1,000 as the “fine” for his unspecified crime. If he paid that, he’d be let out. No way he could raise that amount of money, if he could have he wouldn’t be eating beans. At the end of three months, they had progressively reduced the “fine” to a hundred bucks … but it might as well still have been a thousand, or a million, for all the difference it made. He didn’t have one dollar, much less a hundred.
So one fine day they realized that they’d never get a dime off him. They opened the door of the prison, kicked him out, and locked the door. He looked around. He wasn’t sure where he was. During his stay he’d found out he was about seventy miles south of the US border. He walked out to the highway, and turned north. He started to hitchhike.
But he looked like a refugee from a nuclear holocaust, so nobody would stop. He started walking. He still had no shoes. He walked for days. He said the poor people would help him, give him water and maybe a tortilla and beans. They had no spare shoes for him, they were barefoot themselves. The rich people just looked the other way. He was too weak to walk very far each day, and so day after day he walked and walked, always north.
Finally, with his feet near to giving out, he stumbled across the border, where we were the first people he’d talked to … he’d been animated by being able to finally tell his story, but at the end, his tale and his energy petered out at the same time. He sat looking dazed.
He showed us his feet. It was amazing he could walk on them. They were a mass of cuts and sores. But he said they could wait, the real problem was that he was literally starving. We took him to a cafe and bought him some food. He ate it like … like … I have no comparison. All I can say is he ate it like a man who had fed for three months on nothing but beans and water, and at the end walked seventy miles on almost no food … his eyes when the first plate arrived all steamy and mouth-watering were a study in wonderment.
He ate, but he couldn’t eat too much. We got him some food for the road. Then we took him to a doctor and paid the doc to work on the man’s feet. The man came out with his feet wrapped. The doc came out shaking his head. That was about all we could do. We had very little money ourselves, we were on the road, no room in the car.
So he thanked us, and we said anyone would have done it, and if you’d seen him you’d know that was true. Nobody could look on that human wreckage and hear his story and not be moved to help him. So we wished him well, and we left him and went back to the car to discuss our next move …
… and curiously, none of us suggested that we continue on to Mexico as planned. In fact it wasn’t mentioned once. We talked idly of Phoenix, and what the Grand Canyon looked like that time of year. We spoke of the places we’d seen on the way down. At the end, we’d decided to go to Yellowstone Park. No one said one word about Mexico, or prisons, or someone’s feet. Mel and I had just spent six months in the Letterman nuthouse. Which ever way we went, it wasn’t going to be where there were prisons like that …
And despite the fact that I’ve been to Mexico many times since and enjoyed it greatly, and despite the fact that I have Mexican friends and blood relatives who are wonderful people, and that I speak fluent colloquial Spanish … the idea of Mexican jails still makes me nervous.
Which brings me back to why I told this tale. As a result of conditions being so bad both in Mexican jails and Mexican barrios, for many people the threat of six months in a US jail is no threat at all … which is why a barrier is necessary to stop immigration. Threats won’t do it. Whether someone is a criminal or is simply desperate for work, the distant threat of being fed, clothed, and housed for six months by the US Government is no deterrent at all.
Finally, let me point out a curious fact that most folks don’t know. The Mexican government is very, very happy that our border is so porous. A leaky border is to their advantage. It siphons off many of their criminals, because if someone is a crook, it is often much better to be a crook in the US than in Mexico. In particular, if a person has a criminal record in Mexico, starting over in the US looks very attractive.
NOTE THAT I AM NOT SAYING THAT ALL MEXICANS ILLEGALLY CROSSING THE SOUTHERN BORDER HAVE COMMITTED CRIMES IN MEXICO. Trump got wrongly tarred with that brush, and he didn’t say that either. I say clearly: some border crossers are decent people driven by economic considerations. Some are desperate people trying to reunite with their families. Some are honest folks simply fleeing from retribution in their home communities. Many have committed no crimes in their home countries.
And yes, some are criminals, either in their home lands or here in the US or both.
And further, as I learned above, as soon as they sneak across the border they’re all criminals …
Next, a porous border also siphons off many people who leave Mexico and other Central American countries for economic reasons, people who might cause social problems or require public assistance if they remained in their home countries and could not find work. That causes economic unrest.
Finally, the Mexican economy now gets about the same amount of money in remittances from the US as it does from sales of crude oil to the US … not a financial firehose that the Mexican government wants to turn off, thirty BILLION dollars annually.
(And of course, those gigantic monetary benefits the Mexican economy are a gigantic monetary LOSS to our economy. So yes, there are huge hidden costs to immigration, both legal and otherwise … but I digress).
Given these benefits of a leaky border to Mexico, whenever you see the Mexican government pontificating about how terrible the proposed Border Wall is and how Americans are cruel and heartless to build it, you need to remember that the proposed Wall will help keep Mexican criminals and also unemployed people in Mexico … and the Mexican government would much rather have those criminals and unemployed people be listed among the many other items that Mexico exports to the US …
Best to all,
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