Proposed Illegal Immigration Bill Would Make Illegal Immigration a Felony — By Adding a Whopping 6 Months to the Punishment
I keep reading about the federal bill that will MAKE ILLEGAL IMMIGRATION A FELONY! It sounds so drastic, and so you can see why hundreds of thousands might be protesting a bill that makes such a radical change. For example, here is an article on yesterday’s march in the Los Angeles Times:
Candido Hernandez, 26, trekked through the mountains from Mexico more than two decades ago and now works construction to support his three U.S.-born children.
Carmen Vazquez, 50, cleaned homes in Los Angeles while relatives raised her daughter in El Salvador before she became a legal resident and the two were able to reunite here several years later.
Maria Ortega, 30, came from Mexico to look for better opportunities and found work at a plastics factory after presenting false documents.
The three were among a festive crowd police estimated at 500,000 that marched through downtown Los Angeles to City Hall on Saturday to support immigrants rights and oppose a pending federal bill that would make illegal immigration a felony.
Here’s the thing, though: illegal immigration is already a crime, punishable by 6 months in prison. By making illegal entry a felony, the bill simply increases the penalty from 6 months to a year and a day.
Big deal.
It also makes illegal presence a crime. But aside from making it easier to prosecute people who have overstayed their visas, this provision simply makes it easier to prosecute illegals whose initial illegal entry can no longer be prosecuted due to the statute of limitations having run.
In other words, it makes it easier to prosecute criminals. But it doesn’t make criminals out of illegals.
Shouldn’t the news stories make these points more clearly? I run into people all the time who think that illegal immigration is not a crime. It is. Our newspapers should educate people better on this point.
The wonky legal details supporting my statements above are tucked away in the extended entry. Interested law nerds can click on the “more” button immediately below.
As I explained months ago in this post, Section 1325 of Title 8 of the United States Code, subdivision (a), states as follows:
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.
Entering the country illegally, even the first time, is a crime.
The latest version of the new bill is available online, but I can’t provide direct links to it, because the search links become inoperative after a period of time. I can walk you through the process of getting there, however. Go here, and under “Search Bill Text” put in “H.R. 4437” — and make sure to select “Bill Number” instead of “Word/Phrase.” Select version #4, scroll down to section 203, and click on it. There you will see that section 1325(a), which is the relevant statutory provision I quoted above, is amended by the proposed legislation in the following way:
Section 275 of the Immigration and Nationality Act (8 U.S.C. 1325) is amended–
. . . .
(2) in subsection (a)–
(A) by striking `Any alien’ and inserting `Except as provided in subsection (b), any alien’;
(B) by striking `or’ before (3);
(C) by inserting after `concealment of a material fact,’ the following: `or (4) is otherwise present in the United States in violation of the immigration laws or the regulations prescribed thereunder,’; and
(D) by striking `6 months’ and inserting `one year and a day’;
If you go through this exercise (I have), you get the following new language for section 1325(a):
Except as provided in subsection (b), 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, (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, `or (4) is otherwise present in the United States in violation of the immigration laws or the regulations prescribed thereunder,’ shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than `one year and a day,’ 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.
You can see that the relevant changes are that the penalty has been increased from 6 months to one year and a day, and that the crime of illegal presence (as opposed to entry) has been added to the list.
Again, this bill does not “criminalize” illegal immigration, nor is the provision making it a felony anything particularly radical. And Big Media should be making this clearer to you.
[…] Others: Patterico posted by: The Editors @ 10:49 am March 26, 2006 […]
The Unalienable Right » No Se Puede [say “illegal”] (7a057a) — 3/26/2006 @ 11:10 am[…] FOLLOW-UP II: Patterico points out (and amplifies) what the mainstream media is failing to illuminate in the context of the protests over the House bill that is now before the Senate. Do read his post. […]
A CERTAIN SLANT OF LIGHT » WHY ARE PEOPLE HERE ILLEGALLY TO BECOME “GUESTS” IF PRESIDENT BUSH HAS HIS WAY? (f055cb) — 3/26/2006 @ 11:57 am[…] Bill Adding a (only) 6 Months to Punishment 3/26/06 […]
Traction Control » Blog Archive » Headline Summaries: Border Security (2d8ea5) — 3/26/2006 @ 12:02 pmHere’s the part that I don’t get: Why do illegal aliens believe that they are so far above the rest of the population that they are just not bound by laws that bind everyone else? Just who exactly do they think they are, and by dint of what special logic do they feel they are somehow exempt from basic legal principles that bind society?
I surely hope that their arrogance and abuse backfire on them emphatically and result in serious immigration reform.
Federal Dog (43c7eb) — 3/26/2006 @ 12:45 pmIt has already backfired on them. Every person, without exception, that i’ve talked to today (a considerable number) now think they (the criminals everyone on the left calls illegals) should be removed from the country by force if necessary. That is quite a change from last week since some of these people hire temp workers from south of the border. I’d say it’ll be a lot harder for them go get employment in this area now. They have no desire to see this country turned into a third world country overnight and that’s exactly what the organizers of these idiot shows are getting for their money. Exactly who paid for, and got the permits for all of this mess? Identify please.
Scrapiron (9f37aa) — 3/26/2006 @ 1:27 pmI’m not going to click on the “more” button if it’s an admission to being a “law nerd.”
Andrew (c9203d) — 3/26/2006 @ 4:39 pmOh, quit whining and click. You are one whether you admit it or not. It’s not a bad thing . . .
Patterico (de0616) — 3/26/2006 @ 4:51 pmWell, okay.
Andrew (c9203d) — 3/26/2006 @ 5:38 pm“The bill simply increases the penalty from 6 months to a year and a day. Big Deal”
Getting convicted of a felony instead of a misdemeanor is a “big deal”, far bigger than a potential six months in jail.
[OK, I’ll give you that. But a 500,000 person rally for that? — P]
TomHynes (672604) — 3/26/2006 @ 6:14 pmWhy wasn’t the INS out in force to round up all these marching illegals and deport them?
rev (811fa9) — 3/26/2006 @ 7:04 pmrev – because that would inevitably have led to violence, which would have looked terrible on the evening news?
aphrael (e7c761) — 3/26/2006 @ 7:09 pmI grant you that the media is misrepresenting this issue when it says “Illegal entry is now a crime!” rather than the more accurate “Illegal entry is now a felony rather than a misdemeanor”. But let’s face it, the American media is a bit of a drama queen. I do wonder, however, whether this change in penalty will affect enforcement. I have no prosecutorial or law enforcement background so forgive me if I reveal my ignorance by asking this question:
Does changing the illegal entry to a felony alter how this offense will be enforced and/or what agencies can enforce it?
DRJ (3c8cd6) — 3/26/2006 @ 7:28 pmDon’t worry about the imigration bill, worry about your life and the lives of your family. It has now started. The moonbats (aka democrats) have joined to criminals (they call them illegals) and are now physically attacking anyone that disagree’s with them. This is the first step of their plan for the overthrow of the U.S. government. I knew it was coming, just didn’t expect it so soon. Go read Malkin’s blog and get the latest on the attacks. Now maybe the “American” citizens will wake up and demand that all of the criminals be removed from the country. If they don’t there will be hell to pay in the future.
Scrapiron (71415b) — 3/26/2006 @ 8:16 pmThe bill attempts too much at once.
I’m for gutting the rest of the proposals from the bill if we can at least pass the part requiring penalties for employers who hire illegals. If illegals can’t get a job, they’ll self-deport and thereby solve the problem.
As for the other proposals in the bill, they can be sought piecemeal at a later time (starting with the building of a physical barrier at the border).
clark smith (9ec62a) — 3/26/2006 @ 10:17 pmBut let’s face it, the American media is a bit of a drama queen.
It’s a bit worse than that. Most of the media actively supports illegal immigration. The exact reason is unclear, but possibilities include: they’re part of the “maid-employing class”, they’re “liberals”, or they’re just on the take.
As for who was behind the protests, the one in Georgia was organized by a former Mexican Consul General.
One of the organizations involved in the L.A. protest has allegedly collaborated with the Mexican government.
To what degree was the Mexican government involved in organizing these protests? Will the media endeavor to find out?
Obviously, all those who support these marches or illegal immigration in general need to be completely discredited, and I’d suggest helping to do that.
I’d also suggest contacting all your representatives and telling them exactly what you think about this issue.
TLB (c618ef) — 3/26/2006 @ 10:39 pmhttp://thomas.loc.gov/cgi-bin/query/z?c109:H.R.4437:. Won’t dissappear.
I’m curious how this bill compares with the issue we’re seeing in MA. There, catholic adoption agencies are bridling at their work being interrupted by laws concerning sexual orientation discrimination. I don’t know if those laws involve criminal penalties. Whereas with the anti-immigration bill, Catholic work is being criminalized. And hasn’t a cardinal said they’d disobey this law?
Thank god for the clarity of moral values.
actus (6234ee) — 3/26/2006 @ 11:02 pm“http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.4437:. Won’t dissappear.”
Wait a while. It probably will. My search links worked for a while, and then they didn’t.
Patterico (de0616) — 3/26/2006 @ 11:05 pm“Wait a while. It probably will. My search links worked for a while, and then they didn’t. ”
That’s not a search link. Its the actual query of the database. Change the numbers (c109is for 109th congress, 4437 you know) and you’ll get a different bill. This link is permanent.
actus (6234ee) — 3/26/2006 @ 11:09 pmLittle Thomas hack I figured out in law school.
actus (6234ee) — 3/26/2006 @ 11:10 pm[…] Patterico also points out something the press and the "advocates" don’t. The bill to make illegal immigration a felony (it is already a crime) would ONLY ADD SIX MONTHS to the penalty already in place. As he says: "big deal". This is hardly a draconian law. But the media is misleading (big surprise there) about this law and what it does and does not do. I trust Patterico’s analysis on this, he is a prosecutor, after all. […]
Blue Crab Boulevard » Blog Archive » A Republican Hot Button? (a177fd) — 3/27/2006 @ 3:53 amA follow up post to number four above, please. In Indiana this weekend, Minute Men staged a protest outside a bank that grants home loans to illegal aliens. The Minute Men were attacked by pro-illegal alien counterprotestors: One was knocked to the ground, beaten, and bloodied. So first, illegal aliens feel that they are above immigration laws that everyone else must obey, and now they feel that they are too good to be bound by laws criminalizing assault and battery. Can we please get a list of any law(s) by which they DO feel bound (if such a list exists)? Can we please get some clarification about what laws apply to which individuals in American society, and to what extent? Perhaps a personalized list of applicable laws for each person would clarify matters?
???
http://www.thetimesonline.com/articles/2006/03/26/news/top_news/06b86321de0829538625713d0001758b.txt
Federal Dog (43c7eb) — 3/27/2006 @ 5:13 amOne of the advantages of changing the crime of illegal entry from a misdemeanor to a felony is the eventual impact on voter status.
Should voting be conducted in the proper manner, a felony would deny that person a future voice in politics. Granted, such a penalty may amount to nothing since, presumably, illegals cannot vote anyway. However, such a mark, if it is not purged from the record, would deny them the right should they ever pursue legitimate immigration channels.
That’s not to say that politicians hungry for a particular demographic won’t insert language that retracts “felony” convictions for those who reran the gauntlet to gain proper credentials, but a felony obviously has the potential to carry more electoral weight.
Is this incorrect?
AnonymousDrivel (f2e0e2) — 3/27/2006 @ 9:51 amThe obvious result of all this will be to turn illegals in America into slaves – it happens every time.
The economies of Mexico and USA are integrating. The question is: are the laws being passed the best way?
M. Simon (da88df) — 3/27/2006 @ 10:13 amAD @ 9:51.
In many Southern States a felony is for life. In many Northern/Western States it is only until jail/probation has ended.
For the Southern States the laws (as are many gun control laws) are a legacy of Jim Crow.
Of course our staunch conservatives abhor Jim Crow (as they in fact did during the civil rights era) but find the laws convenient in the current context.
Politics is path dependant.
M. Simon (da88df) — 3/27/2006 @ 10:21 amM. Simon, please explain your statement that this will “turn illegals in America into slaves.” I worked in construction for several years, and am familiar with how illegal labor works today. Illegals often get paid less, because they are off the books so there is no minimum wage enforcement. They are also paid in cash. There are no benefits of any kind, or taxes, or worker’s comp. From what I’ve seen, the current system treats them poorly. The proposed changes would demand workers are legal, which would mean minimum wage and in some cases benefits, at least worker’s comp for injuries. Please explain how this “turns” them into slaves. These changes would actually improve the lot of workers from what I can see.
GG (bea8c9) — 3/27/2006 @ 10:54 amM. Simon,
I appreciate the clarification. I know all politics (and by extension, its legislation) are local, but I was unaware such variance applied to felonies when elections for federal offices were involved. I would have thought an equal protection clause or somesuch would exist to keep the field uniform.
Interesting. So the take home message for illegals is to try particularly hard not to get a scarlet “F” in a border state assuming one has control over the locale of one’s capture.
AnonymousDrivel (f2e0e2) — 3/27/2006 @ 10:59 amI haven’t checked this out, but I woudn’t be surprised. All of this reconquering talk can’t be helping their cause.
That propagandistic LAT story on Saturday’s big demonstration, the one that mentioned the presence of Mexican flags only in the tenth paragraph, has now been amended and updated–to eliminate any reference to Mexican flags at all! – – Mickey Kaus over at slate.com
Wesson (c20d28) — 3/27/2006 @ 1:59 pmIt’s past time to turn back the illegal invasion
Rebuilding the Welfare State (Illegally)By Jed Babbin I used to live across the street from a wonderful Dutch family. The father was an economist at the World Bank, the mother a linguist for some government agency, and their two daughters
Small Town Veteran (72c8fd) — 3/27/2006 @ 2:15 pmThe obvious result of all this will be to turn illegals in America into slaves
Actually, it’s those kind-hearted, “humanitarians” who make things worse for those people who end up here illegally.
If “liberals” didn’t provide the cover that corrupt business owners needed in order to profit off illegal immigration, there would be very little illegal immigration.
The “liberals” want to make things nice and cozy for illegal aliens – all the while profiting off their labor.
It’s kinda like the Simpson’s episode where he’s crying about his dead pet lobster… while eating him. Oh, Pinchy! Chomp.
TLB (4ee528) — 3/27/2006 @ 8:06 pmSlaves? Try “breaking the law to make more MONEY.” Illegal immigrants come from Mexico because they can BANK (i.e. make tons of money) here. You would too. So everyone can drop the pretense about the noble savages coming here (like missionary work?) to do jobs americans will not. Sure, everything is great. Today.. Let the economy plummet and then what?
As a 6th Generation Angelino (yes , 6th) – I do NOT want to hear how anti-Mexican I am. I will so state PROUDLY. My ancestors got the F***ing shaft when California joined the Union. But thank god we did not stay part of Mexico. Want to know our future? In Mexico city you will not see fancy cars in even the best areas. Why? They will be carjacked. Like your nice westside lifestyle? well, better earn more money to pay for armed bodyguards -and I am talking to the middle-class here. In Mexico City, only those with a death wish or who want their children mailed back to them in pieces allow their loved ones to go out without guards. Police paramilitary units (like a SWAT team here) stroll around on regular footpatrol – and this is in the Polanco District – a very ritzy area. Armored Car deliveries are down with 3 man teams – point man with shotgun, cash-bag carrier, then tail man with shotgun. Cheers! This is the world you are allowing to usurp what used to be a lifestyle the world envied.
How nice to see history repeat itself – my family just gets to see our beloved California raped again! Good times!
Californio (430a10) — 3/29/2006 @ 12:22 am“By making illegal entry a felony, the bill simply increases the penalty from 6 months to a year and a day.
Big deal.”
Well, yes, it is a big deal.
An illegal alien convicted of illegal presence in the U.S. thereby becomes a felon.
Should a felon thereafter apply for citizenship, it cannot be granted. To be admissible as an immigrant, an alien must establish that he or she “has not been convicted of any felony or of three or more misdemeanors committed in the United States” according to
8 U.S.C. 12 §1255a Statute (a) (4) (B),
8 U.S.C. 12 §1255a Statute (b) (1) (C) (2),
8 U.S.C. 12 §1255a Statute (b) (2) (B) (ii).
Aliens applying for welfare are subject to the same restriction.
According to 8 U.S.C. 12 § 1324, those convicted of harboring illegal aliens are to be penalized by a fine under title 18 and/or up to 5 years imprisonment; those bringing in (smuggling) illegal aliens are to be fined and/or imprisoned up to 10 years.
http://uscode.house.gov/download/pls/8C12.txt
MinutemanCDC_SC (690d25) — 3/30/2006 @ 12:18 amSince you’re an expert, is it A-OK to enter the country illegally and then apply for citizenship from within the country, as an illegal immigrant??
Patterico (de0616) — 3/30/2006 @ 12:45 amI think you can apply for asylum, which can lead to citizenship.
actus (6234ee) — 3/30/2006 @ 6:30 amWhat happens to those that choose to help the illegial immigrants. What about employers
Alice Prusak (c2d4bd) — 3/31/2006 @ 10:44 pmIn at least one southern State that I know of, a felony conviction does not preclude restoration of voting rights. You simply complete your probationary period and apply for a restoration of voting rights from the Pardons and Parole Board. A successful application restores voting rights. Gun rights (and state licenses), otoh, are a ‘hole ‘nother kettle ‘o fish :).
Charles D. Quarles (df82ab) — 4/4/2006 @ 12:47 amEven though it is against the law, there is usually no penalty for hiring illegals beyond the loss of a clear conscience. The employer is not prosecuted if the violation is EITHER isolated, OR sporadic, OR accidental.
Irregularities in hiring nannies or gardeners have brought down a number of government dignitaries in Washington, DC, though.
For a fine or (gasp!) imprisonment to be imposed, the employer must be judged guilty of a “pattern or practice” which is ALL OF THE FOLLOWING:
1)regular, AND
2)repeated, AND
3)intentional.
Civil penalties against employers who hire illegal aliens range from $250 to $10,000 per alien. Employers convicted of engaging in a “pattern or practice” of hiring unauthorized aliens are subject to criminal penalties of up to $3,000 for each unauthorized alien and/or imprisonment for up to six months for each pattern or practice.
The 1986 Immigration Reform and Control Act (IRCA) resulted in an average of 1,660 warnings and fines between 1994 and 1998, which dropped to an average of 427 between 1999 and 2000. But the INS actually fined employers in only a fourth of those 15,000 cases. Only 53 employers were fined in 2002, just 4 in 2004, and 3 employers were sanctioned in 2005.
In FY1999, INS devoted about 9 percent of its total investigative agents’ time to worksite enforcement, while in FY2003 it allocated about 4 percent. At the beginning of 2004, a mere 124 immigration agents were responsible for enforcing the law against hiring illegal aliens, the Associated Press reported. This reflects the shift in focus from worksite enforcement focus to critical infrastructure protection after 9/11.
The March 18, 2005, judgment, $11 million against Wal-Mart plus $4 million against 12 janitorial service sub-contractors, was extraordinary because it was so rare.
Laws like the following are mainly on the books for show, to pacify an angry voting public, or to create a bill signing photo op before an election about legislation that won’t be enforced after the election.
1908 Unlawful Employment of Aliens — Criminal Penalties
Title 8 U.S.C. § 1324a(a)(1)(A) makes it unlawful for any person or other entity to hire, recruit, or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien, as defined in subsection 1324a(h)(3).
Subsection 1324a(2) makes it unlawful for any person or entity, after hiring an alien for employment, to continue to employ the alien in the United States knowing the alien is or has become an unauthorized alien with respect to such employment.
Subsection 1324a(f) provides that any person or entity that engages in a “pattern or practice” of violations of subsection (a)(1)(A) or (a)(2) shall be fined not more than $3000* for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than six months for the entire pattern or practice, or both. The legislative history indicates that “a pattern or practice” of violations is to be given a commonsense rather than overly technical meaning, and must evidence regular, repeated and intentional activities, but does not include isolated, sporadic or accidental acts. H.R.Rep. No. 99-682, Part 3, 99th Cong., 2d Sess. (1986), p. 59. See 8 C.F.R. § 274a.1(k). A scheme for civil enforcement of the requirements of § 1324a through injunctions and monetary penalties is set forth in § 1324a(e) and § 1324a(f)(2).
In addition, 18 U.S.C. § 1546(b) makes it a felony offense to use a false identification document, or misuse a real one, for the purpose of satisfying the employment verification provisions in 8 U.S.C. § 1324a(b).
* Contrast this criminal penalty with the potentially higher civil penalty for employing illegal aliens. Garrison Courtney, a spokesman for the Bureau of Immigration and Customs Enforcement (ICE), said the [civil] penalty for knowingly hiring illegal workers can run up to $10,000 per person.
1907 Title 8, U.S.C. § 1324(a) Offenses
Title 8, U.S.C. § 1324(a) defines several distinct offenses related to aliens. Subsection 1324(a)(1)(i)-(v) prohibits alien smuggling, domestic transportation of unauthorized aliens, concealing or harboring unauthorized aliens, encouraging or inducing unauthorized aliens to enter the United States, and engaging in a conspiracy or aiding and abetting any of the preceding acts. Subsection 1324(a)(2) prohibits bringing or attempting to bring unauthorized aliens to the United States in any manner whatsoever, even at a designated port of entry. Subsection 1324(a)(3).
Alien Smuggling — Subsection 1324(a)(1)(A)(i) makes it an offense for any person who — knowing that a person is an alien, to bring 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 alien.
Domestic Transporting — Subsection 1324(a)(1)(A)(ii) makes it an offense for any person who — knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law.
Harboring — Subsection 1324(a)(1)(A)(iii) makes it an offense for any person who — knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation.
Encouraging/Inducing — Subsection 1324(a)(1)(A)(iv) makes it an offense for any person who — encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.
Conspiracy/Aiding or Abetting — Subsection 1324(a)(1)(A)(v) expressly makes it an offense to engage in a conspiracy to commit or aid or abet the commission of the foregoing offenses.
Bringing Aliens to the United States — Subsection 1324(a)(2) makes it an offense for any person who — knowing or in reckless disregard of the fact that an alien has not received prior authorization to come to, enter, or reside in the United States, to bring to or attempts to bring to the United States in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), enacted on September 30, 1996, added a new 8 U.S.C. § 1324(a)(3)(A) which makes it an offense for any person, during any 12-month period, to knowingly hire at least 10 individuals with actual knowledge that these individuals are unauthorized aliens. See this Manual at 1908 (unlawful employment of aliens).
Unit of Prosecution — With regard to offenses defined in subsections 1324(a)(1)(A)(i)-(v), (alien smuggling, domestic transporting, harboring, encouraging/inducing, or conspiracy/aiding or abetting) each alien with respect to whom a violation occurs constitutes a unit of prosecution. Prior to enactment of the IIRIRA, the unit of prosecution for violations of 8 U.S.C. § 1324(a)(2) was each transaction, regardless of the number of aliens involved. However, the unit of prosecution is now based on each alien in respect to whom a violation occurs.
Knowledge — Prosecutions for alien smuggling, 8 U.S.C. § 1324(a)(1)(A)(i) require proof that defendant knew that the person brought to the United States was an alien. With regard to the other violations in 8 U.S.C. § 1324(a), proof of knowledge or reckless disregard of alienage is sufficient.
Penalties — The basic statutory maximum penalty for violating 8 U.S.C. § 1324(a)(1)(i) and (v)(I) (alien smuggling and conspiracy) is a fine under title 18, imprisonment for not more than 10 years, or both. With regard to violations of 8 U.S.C. § 1324(a)(1)(ii)-(iv) and (v)(ii), domestic transportation, harboring, encouraging/inducing, or aiding/abetting, the basic statutory maximum term of imprisonment is 5 years, unless the offense was committed for commercial advantage or private financial gain, in which case the maximum term of imprisonment is 10 years. In addition, significant enhanced penalties are provided for in violations of 8 U.S.C. § 1324(a)(1) involving serious bodily injury or placing life in jeopardy. Moreover, if the violation results in the death of any person, the defendant may be punished by death or by imprisonment for any term of years. The basic penalty for a violation of subsection 1324(a)(2) is a fine under title 18, imprisonment for not more than one year, or both, 8 U.S.C. § 1324(a)(2)(A). Enhanced penalties are provided for violations involving bringing in criminal aliens, 8 U.S.C. § 1324(a)(2)(B)(i), offenses done for commercial advantage or private financial gain, 8 U.S.C. § 1324(a)(2)(B)(ii), and violations where the alien is not presented to an immigration officer immediately upon arrival, 8 U.S.C. § 1324(a)(2)(B)(iii). A mandatory minimum three year term of imprisonment applies to first or second violations of § 1324(a)(2)(B)(i) or (B)(ii). Further enhanced punishment is provided for third or subsequent offenses.
COMMENT: Further discussion of offenses defined in 8 U.S.C. § 1324(a) is set forth in Chapter 3 of Immigration Law, published as part of the Office of Legal Education’s Litigation Series, and as part of the USABook computer library.
MinutemanCDC_SC (bb6a6e) — 4/4/2006 @ 7:57 pmAlice Prusak asked, “What happens to those that choose to help the illegal immigrants?”
Notwithstanding that the most helpful thing would be to escort them to the exits, that is reckoned unlawful imprisonment.
Giving water to a person lost in the desert SouthWest is still considered a legal act of mercy. But giving food and shelter and transportation to the next stop on the “underground railway,” as does one particular USA Charity, constitutes aiding and abetting illegal aliens. Felony harboring is punishable by a fine under Title 18 and/or imprisonment up to 5 years.
If aiding and abetting illegal aliens becomes widely known, someday, somewhere, someone could actually be punished under the following statute:
Federal Immigration and Nationality Act Section 8 USC 1324(a)(1)(A)(iv)(b)(iii)
“Any person who . . . encourages or induces an alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both.”
Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):
A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:
* assists an alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or
* encourages that alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or
* knowingly assists illegal aliens due to personal convictions.
Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief.
Recruitment and Employment of Illegal Aliens
It is unlawful to hire an alien, to recruit an alien, or to refer an alien for a fee, knowing the alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an alien knowing that the alien is unauthorized to work. Employers may give preference in recruitment and hiring to a U.S. citizen over an alien with work authorization only where the U.S. citizen is equally or better qualified. It is unlawful to hire an individual for employment in the United States without complying with employment eligibility verification requirements. Requirements include examination of identity documents and completion of Form I-9 for every employee hired. Employers must retain all I-9s, and, with three days’ advance notice, the forms must be made available for inspection. Employment includes any service or labor performed for any type of remuneration within the United States, with the exception of sporadic domestic service by an individual in a private home. Day laborers or other casual workers engaged in any compensated activity (with the above exception) are employees for purposes of immigration law. An employer includes an agent or anyone acting directly or indirectly in the interest of the employer. For purposes of verfication of authorization to work, employer also means an independent contractor, or a contractor other than the person using the alien labor. The use of temporary or short-term contracts cannot be used to circumvent the employment authorization verification requirements. If employment is to be for less than the usual three days allowed for completing the I-9 Form requirement, the form must be completed immediately at the time of hire.
An employer has constructive knowledge that an employee is an illegal unauthorized worker if a reasonable person would infer it from the facts. Constructive knowledge constituting a violation of federal law has been found where (1) the I-9 employment eligibility form has not been properly completed, including supporting documentation, (2) the employer has learned from other individuals, media reports, or any source of information available to the employer that the alien is unauthorized to work, or (3) the employer acts with reckless disregard for the legal consequences of permitting a third party to provide or introduce an illegal alien into the employer’s work force. Knowledge cannot be inferred solely on the basis of an individual’s accent or foreign appearance.
Actual specific knowledge is not required. For example, a newspaper article stating that ballrooms depend on an illegal alien work force of dance hostesses was held by the courts to be a reasonable ground for suspicion that unlawful conduct had occurred.
IT IS ILLEGAL FOR NONPROFIT OR RELIGIOUS ORGANIZATIONS to knowingly assist an employer to violate employment sanctions, REGARDLESS OF CLAIMS THAT THEIR CONVICTIONS REQUIRE THEM TO ASSIST ALIENS. Harboring or aiding illegal aliens is not protected by the First Amendment. It is a felony to establish a commercial enterprise for the purpose of evading any provision of federal immigration law. Violators may be fined or imprisoned for up to five years.
Encouraging and Harboring Illegal Aliens
It is a violation of law for any person to conceal, harbor, or shield from detection in any place, including any building or means of transportation, any alien who is in the United States in violation of law. HARBORING MEANS ANY CONDUCT THAT TENDS TO SUBSTANTIALLY FACILITATE AN ALIEN TO REMAIN IN THE U.S. ILLEGALLY. The sheltering need not be clandestine, and harboring covers aliens arrested outdoors, as well as in a building. This provision includes harboring an alien who entered the U.S. legally but has since lost his legal status.
An employer can be convicted of the felony of harboring illegal aliens who are his employees if he takes actions in reckless disregard of their illegal status, such as ordering them to obtain false documents, altering records, obstructing INS inspections, or taking other actions that facilitate the alien’s illegal employment. Any person who within any 12-month period hires ten or more individuals with actual knowledge that they are illegal aliens or unauthorized workers is guilty of felony harboring. It is also a felony to encourage or induce an alien to come to or reside in the U.S. knowing or recklessly disregarding the fact that the alien’s entry or residence is in violation of the law. This crime applies to any person, rather than just employers of illegal aliens. Courts have ruled that “encouraging” includes counseling illegal aliens to continue working in the U.S. or assisting them to complete applications with false statements or obvious errors. The fact that the alien is a refugee fleeing persecution is not a defense to this felony, since U.S. law and the UN Protocol on Refugees both require that a refugee must report to immigration authorities without delay upon entry to the U.S.
The penalty for felony harboring is a fine and imprisonment for up to five years. The penalty for felony alien smuggling is a fine and up to ten years’ imprisonment. Where the crime causes serious bodily injury or places the life of any person in jeopardy, the penalty is a fine and up to twenty years’ imprisonment. If the criminal smuggling or harboring results in the death of any person, the penalty can include life imprisonment. Convictions for aiding, abetting, or conspiracy to commit alien smuggling or harboring, carry the same penalties. Courts can impose consecutive prison sentences for each alien smuggled or harbored. A court may order a convicted smuggler to pay restitution if the alien smuggled qualifies as a victim under the Victim and Witness Protection Act. Conspiracy to commit crimes of sheltering, harboring, or employing illegal aliens is a separate federal offense punishable by a fine of up to $10,000 or five years’ imprisonment.
Enforcement
A person or entity having knowledge of a violation or potential violation of employer sanctions provisions may submit a signed written complaint to the INS office with jurisdiction over the business or residence of the potential violator, whether an employer, employee, or agent. The complaint must include the names and addresses of both the complainant and the violator, and detailed factual allegations, including date, time, and place of the potential violation, and the specific conduct alleged to be a violation of employer sanctions. By regulation, the INS will only investigate third-party complaints that have a reasonable probability of validity. Designated INS officers and employees, and all other officers whose duty it is to enforce criminal laws, may make an arrest for violation of smuggling or harboring illegal aliens.
State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior INS knowledge or approval, as long as they are authorized to do so by state law. There is no extant federal limitation on this authority. The 1996 immigration control legislation passed by Congress was intended to encourage states and local agencies to participate in the process of enforcing federal immigration laws. Immigration officers and local law enforcement officers may detain an individual for a brief warrantless interrogation where circumstances create a reasonable suspicion that the individual is illegally present in the U.S. Specific facts constituting a reasonable suspicion include evasive, nervous, or erratic behavior; dress or speech indicating foreign citizenship; and presence in an area known to contain a concentration of illegal aliens. Hispanic appearance alone is not sufficient. Immigration officers and police must have a valid warrant or valid employer’s consent to enter workplaces or residences. Any vehicle used to transport or harbor illegal aliens, or used as a substantial part of an activity that encourages illegal aliens to come to or reside in the U.S. may be seized by an immigration officer and is subject to forfeiture. The forfeiture power covers any conveyances used within the U.S.
RICO — Citizen Recourse
Private persons and entities may initiate civil suits to obtain injunctions and treble damages against enterprises that conspire to or actually violate federal alien smuggling, harboring, or document fraud statutes, under the Racketeer-Influenced and Corrupt Organizations (RICO). The pattern of racketeering activity is defined as commission of two or more of the listed crimes. A RICO enterprise can be any individual legal entity, or a group of individuals who are not a legal entity but are associated in fact, AND CAN INCLUDE NONPROFIT ASSOCIATIONS.
Tax Crimes
Employers who aid or abet the preparation of false tax returns by failing to pay income or Social Security taxes for illegal alien employees, or who knowingly make payments using false names or Social Security numbers, are subject to IRS criminal and civil sanctions. U.S. nationals who have suffered intentional discrimination because of citizenship or national origin by an employer with more than three employees may file a complaint within 180 days of the discriminatory act with the Special Counsel for Immigration-Related Unfair Employment Practices, U.S. Department of Justice. In additon to the federal statutes summarized, state laws and local ordinances controlling fair labor practices, workers compensation, zoning, safe housing and rental property, nuisance, licensing, street vending, and solicitations by contractors may also apply to activities that involve illegal aliens.
MinutemanCDC_SC (cc3c6c) — 4/4/2006 @ 11:40 pmWhat if you have an undocumented cousin, and have them over for christmas dinner?
actus (6234ee) — 4/5/2006 @ 6:24 amNothing in the law requires you to document the fact that someone is your cousin. The question is whether or not your guest is here legally or illegally.
Xrlq (f52b4f) — 4/5/2006 @ 6:41 amLet this charity organization try and help illegals IN Mexico, their constitution and laws are what ours SHOULD be…
paul (001f65) — 4/5/2006 @ 6:46 amThat clears stuff up. Lets say they overstayed a visa. Also, they jaywalked to get to your house.
[Overstayed a visa? Like a bunch of the 9/11 hijackers? — Patterico]
actus (6234ee) — 4/5/2006 @ 6:56 amSure, and then your cousin went to a nudie bar, like a bunch of the 9/11 hijackers.
And then the cousin came over for christmas dinner. What does the new immigration law say about the family that hosted them for christmas dinner?
I think the family hosting scenario is more likely than the become a 9/11 hijacker scenario, so it would seem important to get it out of the way. People don’t like it when their religious and cultural traditions land them in jail for 5 years. I’d be good to find out just how much this republican proposal criminalizes families.
actus (ebc508) — 4/5/2006 @ 10:39 amHave no fear that any Republican proposal will criminalize how families in Mexico choose to celebrate the birth of Jesus Christ.
However, illegals shouldn’t be here in the first place, so what or how they celebrate anything is pretty much beside the point.
Black Jack (d8da01) — 4/5/2006 @ 11:01 amI don’t think its beside the point. Families thate are here on proper status could have christmas dinner with family members that are not on proper status. And the question is: are the republicans going to send them to jail for that?
actus (ebc508) — 4/5/2006 @ 11:36 amHopefully.
Angry Clam (fa7fff) — 4/5/2006 @ 11:43 amDoes this statute do that?
[Actus, your argument is, at best, an argument for an amendment that clarifies or modifies the provision about giving aid to illegals. But the provision criminalizing overstaying a visa is important. Our government’s trivializing this issue, as you do by comparing it to going to topless bars, is how many of the 9/11 hijackers were able to remain in this country. It’s a serious issue, and if Democrats laugh it off like you do here, you’re going to lose the argument, Christmas dinners or no. — Patterico]
actus (ebc508) — 4/5/2006 @ 12:17 pmI know. Its part of what I find wrong with this bill.
I’m assuming that’s already illegal. I just wanted a generic immigrant with an improper status.
[Well, you know what they say about assuming. It makes Democrats out of everyone. *Shudder* — Patterico]
How criminalizing this has anythign to do with 9/11, I have no idea.
[I just explained it. — P]
actus (6234ee) — 4/5/2006 @ 3:16 pmThey overstayed. But I don’t think that had anything to do with it being non-criminal.
[It definitely has to do with whether you’re taking it seriously (as criminalizing it does) or trivializing it (as you have done here by absurdly comparing it to visiting boob bars. Keep up such rhetoric . . . please.) — P]
actus (6234ee) — 4/5/2006 @ 3:48 pmactus wrote, “What if you have an undocumented cousin, and have them over for christmas dinner?”
Well, just to be on the safe side, you could call it a “winter holiday dinner.”
That should keep it under the radar.
MinutemanCDC_SC (f4aa8a) — 4/6/2006 @ 12:53 amLet’s put this into a realistic situation. Where does the government, especially the house who passed the felony bill, think we’re going to house 12 million illegal immigrants? We don’t even have enough room for our own criminals, or even the money for it. It’s not realistic. It’s almost impossible to round up 12 million people. And if the government tried, it would cause a huge riot. By charging illegals with a felony and the people who “help” them, the government is building a bigger problem for themselves than there already is. I don’t care if you build the great wall of China across our borders, people will still get in. Then what will we do in 10 years or so from now? Round up another million illegals? Give me a break! I know I am not a politician, but I think the best thing to do is combine a series of things that have been brought up in congress and combine them all.
1. We need to secure the borders. Nothing we do will completely stop illegal immigration, but something will minimize it.
2. Implement a system where employers can varify the legal status of possible employees, before hiring them. If they varify their documents are fake, and they’re illegal, the employer will be responsible for reporting it to the government. If they don’t, the employers will be charged. This way illegals will not be able to get jobs.
3. Require that people who are already here in the US illegally learn English, pay back taxes, file tax returns, pay a fine and pass a background check. The illegals should be able to prove they have done these things within a certain time perior, or they will be deported.
The truth of the matter is, we will never be able to completely stop illegal immigration and we will not be able to deport 12 million illegal immigrants. What do you do with the children who are US citizens and their parents are illegal? You can’t separate them from their parents. What about the citizens who have consented in marrying illegals? What about the rights of the US citizens? Something has to be done and done realistically.
WB (216c6b) — 4/20/2006 @ 1:08 pmOoh! Que local grande. Eu emiti-lo-ei a todos meus amigos.
bra (943f6b) — 11/2/2006 @ 5:40 am[…] Bill Adding (only) 6 Months to Punishment […]
Headline Summaries: Border Security at Traction Control (2d8ea5) — 2/7/2007 @ 2:48 am