Immigration Law In A Nutshell
1. Not all of the people present without authorization are breaking a criminal law.
a. Visa overstays, for example, have not violated a specific criminal law.
b. According to one report, Visa over stays account for 40% of the 11 million immigrants that are listed as illegally present.
2. Keep in mind that there are two parts of the immigration plank
a. Criminal – where prior status as an alien with contact with the USA becomes important.
i. In 2015, 22% of all federal prosecutions were immigration related.
ii. In 2013, 26% of all federal prosecution were immigration related.
b. Civil – where the terms removal and deportation are used
a. Not all of the people who “illegally” entered the USA are committing a felony.
b. This basically means that an alien did not enter the USA at a designated checkpoint and present themselves for inspection by the US Border Patrol.
c. For those aliens with no prior criminal history who are apprehended inside the USA for evading the border checkpoint or failing to present themselves for inspection, the likely offense is that of Entry Without Inspection (EWI) under 8 U.S.C. § 1325.
i. The maximum penalty is 6 months in jail and a $500 fine.
1. In reality, those aliens are usually sentenced to time served and deportation proceedings are initiated.
2. Even under the policies of the George W. Bush’s administration, an alien apprehended in New Mexico under suspicion of attempting to enter illegally, may be voluntarily removed (VR’d) several times before charges were filed against them.
d. For those aliens with prior criminal history who are apprehended inside the USA for evading the border checkpoint or failing to present themselves for inspection, the likely offense is that of Re-Entry of Removed Aliens under 8 U.S.C. § 1326(a)(1)(2),(b)(2).
i. Under the policies of the George W. Bush’s administration, an alien apprehended in New Mexico under suspicion of violating this statute was automatically prosecuted. Under extreme circumstances, if the alien was not prosecuted, the current deportation order would be enforced and the alien would be removed.
e. Bail/Bond – Normally no bail is set for those charged an immigration crime due to lack of assets to secure their appearance and the high likelihood of their not appearing at a future court date. They will have a separate detainer for when they are released from the place that they are held.
4. Civil – Voluntary Departure/Voluntary Return/Deportation
a. Both Voluntary Departure/Removal are informal proceedings in which the alien is removed from the USA.
i. Both proceedings will not penalize the alien’s future application for a visa or a green card.
ii. Use of either these removal methods is set by a written policy which I have not seen.
1. If the alien had no prior record, policy as implemented would require the officer to fully identify the alien, but then remove them
2. But, the officer could deviate from if the situation dictated it.
i. Formal deportation requires a hearing
1. Due process is an important concept here because in the early part of the 20th century, people who really were citizens were deported to a country that they knew nothing about.
ii. Bail is available. (1) This has created recent havoc with the Obama administration releasing thousands of people who are definitely dangerous to the public. (2)
1. This could have been avoided and there are available solutions to this problem.
iii. A deportation order is implemented after a formal hearing where the alien is represented by a taxpayer provided attorney. The hearing may last less than an hour, but it involves an attorney for the USA, an interpreter, court reporter, and a judge.
iv. The alien is not provided with an attorney; however, they may hire one at their own expense to represent them at the hearing.
v. Frustrating the ability to deport even a dangerous alien is the situation where the alien claims that they would be endanger if they were returned to their home country. This leads to the problem of the alien being in limbo – you can’t deport them because you can’t return them to their home country and you can’t hold hem indefinitely in custody without a criminal charge.
vi. At the end of the hearing. The alien is formally presented with the removal order and they are usually deported at the nearest port of entry.
vii. Not every alien “illegally” present with the USA is subject to a current deportation order.
1. They may have been previously caught and returned to their home country after being processed within the USA.
2. Not every removal is a deportation.
viii. An alien unlawfully present within the USA would have been deported under George W. Bush’s administration if that alien had committed any number of enumerated crimes including DWI and domestic violence.
ix. Under the current administration, it is apparent that those policies have been relaxed significantly and have not been strictly adhered to.
x. In a subsequent prosecution for re-entry, there is little defense to the charge of reentry of a deported alien.
(1)Strange as it sounds, conditions of release are set for those whose hearing cannot be held in a timely manner. http://law.justia.com/constitution/us/article-1/36-aliens.html