Immigration is a hot topic, especially with today’s changing global politics and the Trump administration. The United States, a country founded on and with great roots in immigration, has particular laws governing their immigration policies. Spanning across who can come, how, and when, these laws are ever being debated across the country in state and supreme courts, and we see changes in immigration slipping its way into the news here and there.
The most hotly debated topic surrounding immigration is whether crossing the border illegally is a crime and in what particular cases, what the punishments should be, and how strictly it should be enforced. To properly understand the topic, it’s important to have a full history of the laws and the way they are interpreted today.
What is illegal immigration?
Immigration laws can be separated into a few main categories: improper time and place; avoidance of examination or inspection; misrepresentation and concealment of facts; and harboring or hiring illegal aliens.
The first few are governed by 8 U.S. Code § 1325 which reads:
Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts
Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.Cornell Law
History of Immigration Laws
Immigration happened rather freely prior to the introduction of this section in 1929. However, the discussion actually began as a concern more relevant to immigrants from Asia, rather than immigrants from Mexico as are typically referenced today. It then began a more modern view of Mexican labor creating too much competition for American jobs, while the agricultural part of America wanted the cheaper labor. The 1929 bill was introduced by white supremacist Senator Coleman Livingston Blease, which proposed having specific entry points for immigration to place some kind of control on it.
This later developed into the Immigration and Nationality Act in 1952, which abolished previous quotas set in place by this 1929 bill. Instead, this looked for immigrants who were highly skilled or already had family in the states. It still maintained that illegal entry was punishable, but it just altered the way that it was determined who could enter. Also important to note is that the act in 1929 previously had discriminated against Asian immigrants. However, this update provided a certain amount of spots allotted specifically for immigrants from Asia, which President Truman found discriminatory. Despite his veto, it passed in Congress, and is what immigration law is predominantly governed under today.
There wasn’t much importance placed on pursuing these criminal cases until the presidency of President George W. Bush when he instated Operation Streamline, which took all criminal immigration cases to a federal level court, which differed from them originally being civil cases. This, as the name suggests, was a way to streamline the process and handle cases more efficiently and quickly. We now see this initiative increase as the Trump administration cracks down on their immigration prosecutions, placing heavier sentencing for even first time offenders, through what is referred to as “zero tolerance.”
In recent political debates, 2020 Democratic presidential candidates, namely Julian Castro and Elizabeth Warren, tossed around the idea of abolishing Section 1325 altogether, whereas Beto O’Rourke and others called for a complete rewrite instead. Castro argues that it should instead be treated as a civil offense, as he sees this as an attempt to “criminalize desperation,” – they should be deported, not incarcerated. President Trump cites that initial Section 1325 that criminalizes crossing the border illegally as the legality behind incarcerating families when they attempt to cross the border. To answer the long-reigning question of, “Is crossing the border illegally a felony?” is yes. This continues to be a hot topic as the 2020 election draws closer, so there’s no telling what direction this policy could turn in the future.
Improper time or place
This is typically referred to as crossing the border illegally. This is currently being prosecuted on a federal level, meaning charges are much more severe than their initial general misdemeanor charges. Most first-time offenders would receive a misdemeanor when crossing the border up until around 2005 with Operation Streamline. Now, this means first-time offenders may be jailed and fined in criminal penalties versus the previous civil conviction it held. Usually jail time will be up to six months, but the second offense may be up to two years. Other convictions carry heavier weight.
Those caught with drug related offenses three or more times are subject to a fine and/or prison time for up to ten years. Aggravated felony charges on an illegal immigrant can come with twenty years in prison, and nonviolent offenders that are deported before serving their time can also be fined and have up to ten years in prison. Those who are deported for security reasons are also up against ten years and maybe a fine. This differs from the civil charge is used to be in that prison normally was not a common penalty, especially not for first time offenders.
Avoidance of examination or inspection
This typically occurs in the form of marriage fraud, which is when an immigrant marries someone for the sole purpose of cutting through immigration laws. Penalties for this can range in five years in prison and $250,000.
Misrepresentation and concealment of facts
This is any type of lying or hiding truths in order to avoid some kind of immigration policy. It can result in five years in prison.
Harboring and hiring illegal immigrants
Haboring and hiring illegal immigrants is outlined in the code before it, 8 U.S. Code § 1324, punishing anyone who:
knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alienCornell Law
Also punished by this law are those who: are aware that an alien has come to the United States illegally; transports them anywhere; “conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection” an illegal immigrant; encourages someone to enter the states illegally; or engages in conspiracy or aids any of these acts.
When it comes to finding the illegal immigrants being hired by American employers illegally, Immigration Customs and Enforcement (ICE) typically looks heavily on “critical infrastructure” sites, like airports, nuclear and chemical plants, and defense facilities. They also put efforts into identifying employers who exploit these illegal immigrant workers.
These tend to be treated as civil offenses, with fines ranging from $375 to $1,600 for each illegal worker, usually for first and third offenses respectively. It can range up to a felony charge with imprisonment and fines up to $3,000 per worker for repeat offenders.
How can I immigrate legally?
In order to immigrate legally to the United States, you must have a visa. The government states that,
A foreign citizen seeking to immigrate generally must be sponsored by a U.S. citizen or lawful permanent resident immediate relative(s), or prospective U.S. employer, and have an approved petition before applying for an immigrant visa.
Their website outlines the main different types of visas that will allow you to immigrate to the US:
Family Immigration Visa– This is for those who have family that are either citizens or permanent residents of the United States already. Family members that are eligible include spouses, sons and daughters, parents, and brothers or sisters for citizens. Permanent residents can support spouses and unmarried children. They must prove that they can sponsor you financially and legally. The sponsoring relative must file a petition for you, then verify their financial assets to support you with an Affidavit of Support. You will then be able to proceed in the immigration process.
Employment-Based Visa– There are only 140,000 of these available every fiscal year. When providing these visas, priority goes to those with exceptional skills, professors or researchers with three years of experience, and multinational managers and executives. It then goes to those with exceptional ability or at least a bachelor’s and five years of experience. Then comes workers with a skill that requires some training, professionals with a bachelor’s, and all other workers. Fourth preference goes to these groups:
- Ministers of Religion
- Certain Employees or Former Employees of the U.S. Government Abroad
- Certain Former Employees of the Panama Canal Company or Canal Zone Government
- Certain Former Employees of the U.S. Government in the Panama Canal Zone
- Certain Former Employees of the Panama Canal Company or Canal Zone Government on April 1st, 1979
- Certain Iraqi and Afghan interpreters/translators
- Certain Iraqi and Afghan nationals who have provided faithful and valuable service while employed by or on behalf of the U.S. government in Iraq
- Certain Foreign Medical Graduates
- Certain Retired International Organization Employees
- Certain Unmarried Sons and Daughters of International Organization Employees
- Certain Surviving Spouses of deceased International Organization Employees
- Special Immigrant Juveniles
- Persons Recruited Outside of the United States Who Have Served or are Enlisted to Serve in the U.S. Armed Forces
- Certain retired NATO-6 civilians
- Certain Unmarried Sons and Daughters of NATO-6 civilians
- Certain Surviving Spouses of deceased NATO-6 civilian employees
- Persons who are beneficiaries of petitions or labor certification applications
- Certain Religious Workers
Finally, they consider immigrant investors, those who are going to be creating jobs in America.
The steps for this involve getting a labor certification and filing whichever petition is applicable to your employment situation. Then, you pay fees and submit the application. This may also qualify your spouse and minors under 21 to obtain visas. You’ll need a passport, two 2×2 photographs, certain civil documents, demonstration of financial stability, and medical forms. From there you are interviewed, and then complete any necessary medical treatments and vaccinations.
They provide this diagram of the steps:
The government also still allots so many visas each year to those from countries that have rather low immigration rates, encouraging more diversity to the states. Fiscal year 2021 has 55,000 visas for immigrants from Hong Kong SAR, Macau SAR, and Taiwan. This has an electronic application process, something that’s often referred to as a lottery.
Generally, if you’re at least eighteen and have been a law-abiding permanent resident for about five years, you are eligible to become a citizen.
Which crimes can get me deported?
Even immigrants that are here lawfully can be deported from the United States at any time if they are found guilty of certain crimes. Typically these crimes are aggravated felonies or particularly morally corrupt crimes. In 2019, General Attorney Barr decided that even if these crimes are later found to be expunged or changed, that doesn’t change the future of their deportation status. All of these crimes are outlined in the new Immigration and Nationality Act.
Morally corrupt crimes
These crimes include:
Normally, these crimes won’t immediately get you deported. The cases where you may be at risk are when you’re in the first five years of your residency here, or if you commit a crime on two or more occasions. You may be able to file a defense for a waiver proving that you’re not a threat to society, however.
Aggravated felonies may be:
- Drug trafficking
- Gun trafficking
- Crimes with a minor
- Money laundering
- Tax evasion
These will often result in immediate deportation. The only mercy found here is if you can prove that you’ll be tortured in your home country should you be returned back there.
Other grounds of deportation may include:
- Violating terms of your residency
- Knowingly help smuggle an illegal immigrant into the US
- Marriage fraud
- High-speed flight from an immigration checkpoint
- Failing to register as a sex offender
- Is or has been a drug addict
- Violating a protective order
- Not notifying of a move within ten days
- Immigration fraud
- Pretending to be a US citizen
- Terrorist activity
- Causing substantial foreign contention
- Participating in the Nazi party
What are the statistics on immigration?
The Migration Policy Institution believes there are about 11.3 million illegal immigrants living in the US right now. They’re predominantly in California, Texas, and New York, in that order. These are even further concentrated in a few major counties, such as Harris County in Texas, Los Angeles and Orange Counties in California, Queens County in New York, and even Cook County, Illinois. Most migrants come from Mexico and South American countries. Immigrants receiving citizenship is declining, with only 707,000 citizens naturalized.
Some illegal immigrants were eligible to be recipients of the Deferred Action for Childhood Arrivals (DACA) program, allowing them to remain and work and go to school for two years without being deported. However, this ended with Trump’s administration in 2017. Before this, there were about 1.3 million eligible and almost 700,000 were actively a part of the program at its termination.
Annually, Customs and Border Patrol (CBP) has about 400,000 apprehensions of groups of people trying to come into the US, predominantly on the South West border. This includes about 136,000 minor children and families, and anywhere from 27,000 – 50,000 unaccompanied minors. In 2018, ICE made 158,581 arrests of illegal immigrants, and they carried out 400,000 deportations in 2017.
Immigration laws haven’t changed much over the years, but the way and intensity to which they are enforced has varied greatly over administrations. While Obama’s administration saw an increase in immigration and less enforcement, as well as the implementation of DACA, administrations such as Bush and Trump made note of being particularly strict with their initiatives. Debates continue to happen as we see a border wall being constructed and tensions with other countries rising, so there’s no telling what immigration can look like in the coming years.
Overall, immigration is one with a lot of tricky and specific laws, some of which have devastating consequences. Felony convictions are a pretty easy way to get removed from the country, and illegal immigration is being handled on a federal, efficient level right now. These are no crimes to take lightly, and it’s important to be well informed on what these rules contain and how to follow them closely.