In an April 2009 interview, Secretary of Homeland Security Janet Napolitano sparked a contentious debate when she said: “[W]hen we find illegal workers, yes, appropriate action [will be taken], some of which is criminal, most of which is civil, because crossing the border is not a crime per se. It is civil.” Critics blasted Napolitano for suggesting that crossing the border illegally was not a crime. Confusion in this area persists.
Arizona’s new immigration law brings renewed attention to the criminalization of immigration violations. One of the law’s provisions (pdf) requires law enforcement, when making a lawful stop, to determine an individual’s immigration status where reasonable suspicion exists that he or she is “unlawfully present” in the United States. Several of the law’s other provisions indirectly criminalize unlawful presence in the United States. For example, the law gives law enforcement the authority to make warrantless arrests if probable cause exists that an alien has committed a removable offense. However, even Arizona’s law enforcement officers are confused about what actions constitute a crime.
On July 6, 2010, the U.S. Department of Justice sued Arizona on the basis that federal law preempts Arizona’s new law and thus prevents Arizona from enforcing it. In its complaint (pdf), the Department alleges that the Arizona law effectively criminalizes the unlawful presence of aliens “even in circumstances where the federal government has decided not to impose such penalties.” In other words, the state’s law applies criminal sanctions for unlawful presence “despite an affirmative choice by Congress not to criminalize unlawful presence.” As the complaint further explains, under current federal law: (1) the unlawful presence of an alien alone is not criminal—only civil remedies, like removal, come into play, unless other circumstances apply; but (2) unlawful entry into the United States is criminal.
Indeed, federal law provides for the deportation not prosecution of aliens unlawfully present in the United States (except for those previously denied admission, excluded, deported, or removed). See 8 U.S.C. §§ 1182(a)(6)(A)(1), 1227(a)(1), 1325(a). Entering the United States at any time or place other than as designated by immigration officers, however, is a crime, as is eluding inspection or examination by immigration officers, or using false misrepresentation and concealment when entering the United States. 8 U.S.C. § 1325(a). Technically then, crossing the border alone is not a crime per se, but crossing the border unlawfully is. That means an individual who enters the United States illegally could face criminal penalties for being here while a person who enters legally but stays in the United States without authorization would face only civil penalties.
No one said immigration law isn’t confusing!