Unlawful Not so Simple

This merits clarification.

No. "The fact they're here illegally" isn't itself a crime.

“Illegal presence” isn’t a crime. It’s civil. See INS v. Lopez-Mendoza (1984).

He also mentions visa overstays (about half of unlawful presence). Those aren’t crimes either. It's a civil process.

Crimes do exist for… https://t.co/0GOuNcHQzL

— Rob Doar (@robdoar) February 2, 2026

 

Te following is the applicable portion of the interview of Deputy Attorney General Todd Blanche on Sunday,February by George Stephanopoulos on ABC's This Week.

STEPHANOPOULOS:  They are being released across the country as well by judges. And the president said he was going to prioritize those who had criminal records, but about 70 percent at least of those who have been detained don't have criminal records.

BLANCHE:  Well, just -- hang on. The fact that they're here illegally is a crime. And so when you say they don't have criminal records, they are -- by their presence being here without status, having come into this country illegally or overstayed illegally, that is a crime. And so, we have to be careful.

And you're right, there is a schism in the law right now about whether an illegal alien can be held pending their proceeding or whether they need to be released on bail. We very strongly believe that they should be held and there's a bunch of appellate cases.

So that's another example of something where a number of district court judges have reached a conclusion that we very much believe is contrary to law and there will be an appellate court and ultimately, probably the Supreme Court that will be asked to interpret that. So -- so, we should be -- we should wait before we withhold judgment until the appellate courts have had their opportunity to weigh in.

The tweet is interesting.  A close reading of INS v. Lopez-Mendoza (1984) would suggest that, consistent with Doar's interpretation, that mere presence of an immigrant illegally present in the USA is not a criminal offense. In her majority opinion, Associate Justice of the US Supreme Court Sandra Day O'Connor ruled against Lopez-Mendoza, stating "the mere fact of an illegal arrest has no bearing on a subsequent hearing."

Nonetheless, in his dissent, Justice White noted "unregistered presence in this country, without more, ante at 468 U.S. 1047, does not constitute a crime, rather, unregistered presence plus willfulness muist be shown." Without referring to this case itself, the the Immigrants' Rights Project of the American Civil Liberties Union in 2010 explained

The act of being present in the United states in violation of the immigration laws is not, standing alone, a crime. While federal immigration law does criminalize some actions that may be related to undocumented presence in the United States, undocumented presence alone is not a violation of federal criminal law. Thus, many believe that the term "illegal alien," which may suggest a criminal violation, is inaccurate or misleading.... 

Undocumented presence in the United States is only criminally punishable if it occurs after an individual was previously formally removed from the United States and then returned without permission. (8 U.S. Code Section 1326) (any individual previously "deported or removed" who "enters, attempts to enter, or is at any time found in" the United States without authroization may be punished by imprisonment up to two years). Mere undocumented presence in the United States alon, however, in the absence of a previous removal order and unathorized reentry, is not a crime under federal law.

Deputy Attorney General Blanch, therefore, probably was wrong when he said of the "millions and millions and millions of undocumented illegal aliens (who have flooded our country" that "the fact that they're here illegally is a crime."

To give Blanch his due- those this was not what he stated- individuals who have "flooded our country illegally" are not guilty of a mere civil offense. In that same 2010 report, the ACLU noted

Entering the United States without being inspected and admitted, i.e., illegal entry, is a misdemeanor or can be a felony, depending on the circumstanstances. (8 U.S. Code, Section 1325.) But many undocumented immigrants do not enter the United States illegally. They enter legally but overstay, work without authorization, drop out of school or violate the conditions of their visas in some other way. Current estimates are that approximately 45% f undoumented immigrants did not enter illegally. See Pew Hispanic Center, Modes of Entr for the Unauthorized Migrant Population (May 22, 2006). 

As Doar points out, Section 1325 applies to individuals entering the USA illegally for the first time and Section 1326 pertains to persons re-entering illegally (or previously denied permission to enter), as they have since enacted in the late 1920s.  (The Illegal Immigration Reform and Immigrant Responsibility Act of 1996  made the law tougher/more punitive.) Although estimates vary, it appears that the number of persons who have overstayed their visa (or Master Card) constitutes a very minority of the total number here on an unauthorized basis. Unlike the foreigners who have entered or re-entered illegally, they are guilty only of  a civil offense.

Civil vs. criminal and misdemeanor vs. felony are critical distinctions. Of course, that leaves us with such problems as apprehension in schools and at courthouses, separation of children from their parents, camera phobia, excessive force, wearing of masks, warrantless home raids, and quotas (almost always bad things). Confronting tyranny is a tall order.

.

Share |