It sounds very simple but there is actually a great deal of confusion around the term “illegal immigrant.” Being in the country without documentation is illegal but not criminal. It is a civil offense, much like exceeding the speed limit while driving. If you’re going 50 mph in an 35 mph zone, you are breaking the law, but does that make you an “illegal driver”?
Due to the dysfunction of the current U.S. immigration system, family members face years of separation and those seeking work face years of waiting before they can find legal employment to support their families. In both cases, the situation is untenable, especially when there are young, dependant children involved. For that reason, many people choose to enter or remain in the country without documentation.
Much of the discussion around illegal immigration has centered around the idea of people sneaking across the border. The media portrays people with ladders climbing over barbed-wire fences or tunneling under them. The images convey a sense of criminal activity. Indeed, over half of the estimated 11 million people currently in the country without documentation entered clandestinely. However, almost half – an estimated 45% – entered the country legally and then overstayed their visas. These are workers who leave their sponsoring employers in order to escape exploitation. They are students who have come to the U.S. for college or graduate school and then found love and work here. They are family members visiting their loved ones on tourist visas who then cannot bear to part. In short, the vast majority of “illegal immigrants” are people like you and me, not criminals.
But they are breaking the law. Doesn’t that make them criminals by definition?
Not necessarily. Unless they are committing some other activity at the same time that actually is criminal – such as smuggling or identity fraud – even those who are climbing over fences are not committing a crime. Legally speaking, being in the country without documentation is a civil offense. What “illegal immigrants” are “guilty” of is not having the necessary paperwork.
Assistant Homeland Security Secretary John Morton is currently head of Immigration and Customs Enforcement (ICE). As he stated in a Feb 2010 interview, “The immigration laws are civil in nature…. 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.” He added, “Generally speaking, if you’re being deported and you’re being detained for it, it’s for a civil infraction and not a criminal one.”
The same view was upheld by Homeland Security Secretary, Janet Napolitano in a CNN interview.
In fact, deportation or removal proceedings are conducted in civil court, not criminal court, and the punishment is deportation, not imprisonment. Undocumented immigrants found to be in violation of immigration laws are officially detained only while our immigration system decides whether they have a right to stay in the United States.
Many U.S.Americans mistakenly believe that all undocumented immigrants are by definition criminals, which is understandable. First, there are the images of the militarized border that connote crossing as an illegal activity. Secondly, we continually hear the term illegal immigration, illegal immigrant, illegal, illegal…. Third, while detained undocumented immigrants are officially held in non-criminal custody, due to overcrowding and privatization, over half of the immigrants in detention now are physically housed in private prisons or county jails. All of these things combined create the sense that undocumented immigrants are criminals. It’s no wonder that people are confused!
It is for this reason that many people and organizations, including the Unitarian Universalist Association, advocate the use of the term “undocumented immigrant” instead of “illegal immigrant.”
A clarification is in order. There are two ways to be confused about whether immigration violations are criminal or civil. The author is concerned that people erroneously believe that all immigration violations are criminal. She is correct that they are not. However, it is also erroneous to believe that all immigration violations are only civil violations.
Most grounds of deportability are civil violations only. She mentions overstaying a nonimmigrant admission as an example. However, some aliens become deportable because of criminal convictions (conviction for a crime involving moral turpitude, for example), and some grounds of deportability are also criminal violations in themselves (entry without inspection can be prosecuted as a crime; the first offense, if prosecuted, is a misdemeanor; a second or subsequent prosecution would be a felony). Usually, illegal entry is not prosecuted, and the alien is instead placed in removal proceedings. But if an alien has made several such illegal entries and has been removed multiple times, he eventually will be prosecuted. So it is incorrect to say that violations of immigration law are only civil violations, like a traffic violation.
I’d like to add one more thing to my previous comment. The UUA prefers the term “undocumented immigrant” to “illegal immigrant.” The problem I have with that is that it sounds as though the only problem the immigrant has is an absence of a document–as though he is entitled to a document but for some reason doesn’t have one. But that is not always the case.
Some aliens are not eligible for legal immigrant status, even though they may be lovely people. For example, there is no immigrant category for uncles, aunts, cousins, or grandparents. There is no basis for immigration on the basis of an employment category for which there is no shortage of USC citizen or authorized alien workers. Also, there are annual numerical limitations for certain categories and for each country. That’s why there are long waiting lists for some relationship categories and countries that have oversubscribed their limitations. (National origins quotas were eliminated a long time ago, and now every country has the same limitation.) I don’t agree that “undocumented” is a better term than “illegal” to describe someone who is in the United States in violation of law.