Simple question. Please do not read into it but take it at face value.
Is it a crime to illegally be within the borders of the United States?
If so, what federal criminal law is being broken?
Might as well check out the whole chapter.
I suspect that the answer is:
(1) It is not a crime for a non-citizen without a valid permanent residence card, visa or visa waiver to be present in the United States.
(2) There are various ways in which a non-citizen might reach such a situation, and some of those ways would constitute crimes.
(3) A non-citizen in such a situation would be subject to deportation.
There seems to be a problem with your question. If they had not broken the law, they wouldn’t be here ‘illegally’ - they’d just be here.
Jimmy pretty well nailed it. As I understand it (and I owe most of my understanding to Bricker’s patient explication of the law during one of the numerous ‘illegal alien’ debates):
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It is a crime to enter the country illegally.
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It is not a crime to be present in the country illegally – but it is a civil violation. (Think of the difference between breaking the zoning law by building something to close to your neighbor’s lot line, and standing on your property taking pot shots at him with a shotgun. One’s a civil wrong, the other a criminal act.)
Why this matters is that it is quite possible to enter the country legally and remain here illegally. (In fact, one longtime though inactive Doper inadvertently did just this, through not getting the proper paperwork to grant a visa extension back from the Feds. in time. It got fixed, but until then it was a case of just what the question asks about.)
Nope – as my previous post indicates, it’s possible to entry the country legally and later end up in it illegally. To draw a parallel, imagine yourself to be in a state that licenses ownership of firearms. You buy a rifle completely legally, and three years later, in the midst of critical problems, it slips your mind that your firearms license needs to be renewed. Effective the day after it expires, you now own a firearm illegally, even though you bought it legally.
I can think of at least three ways to be present illegally:
(1) Enter by evading immigration control in some way;
(2) Enter with a proper permanent residence, visa or visa waiver, and have that status expire while present in the U.S.
(3) Be born within the U.S. to a person who is not subject to the jurisdiction of the U.S.
The third is a bit academic: it would be if your parent were a diplomatic or consular official, and I’m sure that the U.S. would grant a visa very quickly in these cases. However, the second is not, and can affect children who have lived almost all their lives in the U.S., but become illegal for reasons outside their control.
You break the law when you stay beyond your term, just like you break the law when you continue possess the gun without the requisite permitting.
I’m not sure where the confusing part is.
I think the point Darth Panda is trying to make is that the question, as phrased, is a tautology. The answer to any question which begins, “Is it a crime to illegally…” is “yes”, since by definition all crimes are illegal. The question could have been better worded, “Is there any circumstance in which merely being within the borders of the United States is a crime?”
Not all illegaliities are crimes though. Some things which are illegal, are civil infractions or violations.
Being illegally present is a civil violation, not a crime.
Illegal entry is a crime.
Being illegally present in the U.S. has always been a civil, not criminal, violation of the INA [Immigration & naturalization Act], and subsequent deportation and associated administrative processes are civil proceedings.
Congressional Research Service Report, at 15
“Breaking the law is a crime” is flat out not true. Check out statutory construction and case law – a crime is strictly defined by (orignally common law, now almost universally replaced by) statute law construed very strictly. If it’s not defined as a crime, it’s not a crime.
There are many, many laws that do not prescribe a criminal penalty for failure to comply with them. The U.S.Flag Code is a good example – it’s federal statute law how the flag should and should not be displayed, what gestures of respect are expected to iit, how a damaged flag should be disposed of, etc. But there are no criminal penalties for failure to comply with it, breaking it is not defined as a crime – so if someone flies the U.S. flag below their ancestral country’s, burns a flag in protest, etc., it is not a crime.
The law does not contemplate “sins of omission” as crimes, by and large. There are only a small handful of circumstances, such as registering for Selective Service when you turn 18 if male, where one is obliged by law under criminal penalty to take a particular action. Otherwise it’s either a legal act or a civil wrong, not punishable by criminal charges.
This is very much correct. My statement about committing a crime after falling out of compliance with laws that you formerly were in compliance with should have had a caveat that the laws in question were of a criminal nature rather than a civil nature.
I was writing under the assumption that the laws regarding immigration were criminal, rather than civil, which appears to be incorrect. Although, in fairness, I didn’t initially interpret the OP’s question with such a level of specificity.
Some of the laws regarding immigration are criminal. Others are not. Thus the distinction.
Thank you PC. While Jimmy addressed the crossing of the border may constitute a crime, and offered the legal proof, that was not the question asked. Yes, I was asking the specificity because of a debate among friends. The debate often strays into the illegal border crossing, which is not the specific topic.
So if it not a criminal act to be here as an illegal alien, is there a civil violation? Got any specifics?