To be in the country as an undocumented immigrant is not a crime.
Black’s Law Dictionary defines crime as “an act committed or omitted, in violation of a public law.” It adds that a crime is “distinguished from a civil injury.” Those pushing the narrative, to demonize undocumented immigrants, rely on the argument that to be in the country as an undocumented immigrant is “illegal” and thus by that definition the immigrant is a criminal. The problem is that the law does not make it a crime to be in the country in an “out of status” condition.
First, let us define how someone can be undocumented in the United States. There are two ways to enter the United States. The first is via a federally recognized port of entry where the individual, entering the country, is inspected by an agent of Homeland Security. The agent, pursuant to the laws, either admits the immigrant under a specific category into the country or denies them entry. Each category of admittance has its own restrictions.
The second way to enter the country is through an uncontrolled border point. This type of entry is defined as an illegal entry. The act of illegal entry is generally a misdemeanor. However, it can be a felony, if the immigrant has previously been removed, i.e. deported from the country. Generally, a deportee is issued a warning informing them that any reentry will be prosecuted as a felony.
An immigrant who crosses the border and is properly inspected by an immigration agent does not commit a crime by overstaying their visa allowing them entry into the country. Most undocumented immigrants enter the country through a legal point of entry and simply overstay their authorization visa.
Even the anti-immigration Federation for American Immigration Reform (FAIR) group acknowledges that 30% to 40% of undocumented immigrants simply overstayed their visas.
This translates into the fact that 30-40% of undocumented immigrants are not criminals simply by being in the country in an undocumented status. Overstaying an immigrant visa is like a ticket issued to a red-light runner. Both are civil offenses carrying with them civil penalties. Red-light runners pay a fine and visa over stayers are subject to be removed from the country.
In 2005, the House of Representatives tried to criminalize being in the country by overstaying the visa provisions of the immigrant as a criminal act. HR 4437, also known as the Sensenbrenner Bill, passed the House but failed at the Senate.
To this day, it is not a crime to be in the country as an undocumented immigrant if the immigrant was lawfully admitted through a point of entry. That is at least 30% of the undocumented immigrant population.
Interestingly and ignored by those who pursue the narrative of criminalizing undocumented immigrants is that the civil nature of the immigration laws of the country is the single most important reason that immigrants can be expeditiously removed from the country by the border patrol.
This is because the law treats being present in the country as an undocumented immigrant, for those that entered legally, as a civil offense thus eliminating the constitutional protections of court hearings and legal representation. Because the immigrant isn’t charged with a crime, but is instead charged with a civil violation, i.e. being present in the country without documents, then the protections afforded criminal prosecutions are nonexistent. Furthermore, the federal government defines the removal of an immigrant from the country as a civil removal proceeding.
Civil removal proceedings far outnumber criminal prosecutions as the preferred process for removing undocumented immigrants.
If we are to have a meaningful discussion about immigration it is important to understand that a great majority of the undocumented in the country are not criminals.