Here’s a simple question: are all illegal immigrants — by definition — criminals?
Not long ago, I would have answered: “Yes, of course.” In fact, in a column from 2005, I said as much and urged fellow Latinos not to gloss over the fact that these people broke the rules in entering the United States without authorization. I noted that there are those who don’t like the term “illegal immigrant” because they don’t think that people trying to feed their families should be labeled criminals.
“What else would we call them?” I wrote. “They broke the law. We can be sympathetic to their plight without condoning their actions. In order for Latinos to make real progress, first they have to stay in the real world.”
I still subscribe to the belief that one can be sympathetic to illegal immigrants without going off the deep end and denying that they’re here illegally. But, as to the question of whether they all deserve to be called criminals, I stand corrected.
And who better to set me straight than someone who would have to be considered an expert on the enforcement of immigration law? Assistant Homeland Security Secretary John Morton is currently head of Immigration and Customs Enforcement. A former federal prosecutor, Morton is no squishy liberal and he doesn’t take lawbreakers lightly. Yet, when I asked him during a recent interview whether illegal immigrants are de facto criminals, he answered: “Not necessarily.” It all depends, he said, on the specific circumstances of any one case. The thing to keep in mind is that the laws governing who is allowed to enter the country and under what circumstances aren’t criminal statutes.
“The immigration laws are civil in nature,” Morton said. “There are criminal immigration offenses but mainly they are misdemeanors in most instances, although a lot are serious felonies. For example, if you enter the country on a visa and you overstay your visa, that is a civil but not a criminal offense. There is some overlap. Sometimes you are here unlawfully and you’re also guilty of a crime. But it is not one to one.”
From there, he explained, it gets more complicated. Some illegal immigrants have committed a criminal act depending on how they go about entering the country.
“If you’re guilty of alien smuggling or document fraud and it is immigration-related,” Morton said, “then it’s a crime.”
Yet, whether you’re talking about crossing into the United States without permission or overstaying a visa, the act itself is not necessarily a crime.
“Generally speaking,” he said, “if you’re being deported and you’re being detained for it, it’s for a civil infraction and not a criminal one.”
That makes sense. If the infraction were a criminal one, the punishment wouldn’t be deportation but imprisonment. But what if you’re here illegally and you’re forced to leave, but then you come back?
“If you’re deported and you reenter the country,” Morton said, “then it’s a crime. And it’s a crime to enter the country in certain ways. For instance, if you use someone else’s passport or steal someone’s identity, that’s also a crime.”
I would guess that most Americans have never thought about these distinctions. They simply assume that anyone in the country illegally is guilty of a criminal act. Period.
That is not so. Illegal immigrants broke the law, all right. There’s no point in denying that. So what if it was to feed their families? That’s not relevant. Whatever their motives, people who break the law must be held accountable. And the first step is to acknowledge what was done and call it by its proper name. That’s why I’m only too happy to argue with those — including many fellow Latinos — who insist on using softer euphemisms like “undocumented worker” or “non-citizen.” And that’s why, in the past, I’ve supported speedier deportations, workplace raids, and other immigration enforcement measures.
Still, in most cases, assuming that we’re not talking about committing a more serious offense such as human smuggling or document fraud, the law that was broken was — as Morton pointed out — a civil statute and not a criminal one.
Of course, once in this country, illegal immigrants may proceed to break other laws. In that case, they are criminals. They should be arrested, prosecuted, and — if convicted — imprisoned.
But if that never happens, if they live in the United States and never so much as jaywalk or get a speeding ticket, then they don’t deserve to be called criminals. And that’s because, believe it or not, the mere act of being in the country illegally isn’t a crime.