Note To Congress: Most Illegal Aliens Are Already Criminals—But They`re Not Being Deported Anyway [NEW IMPROVED VERSION!]

As Mexican nationalist demonstrators take to the streets
in post-1986
mass immigration America– egging the U.S.
Senate on to march over the cliff of yet another illegal
alien amnesty—Congressman

Tom Tancredo
took to the pages of America`s favorite

USA Today,

in arguing the case for immigration law enforcement.

In his op-ed

Myths vs. Facts
(March 29), Congressman
Tancredo tackles two of the rallying cries against

H.R. 4437
that have supposedly been fueling the
recent pro-illegal alien mass demonstrations.

Tancredo writes:

  • "A second myth is
    that House Republicans want to make illegal presence
    in the USA a felony."

Both myths about

H.R. 4437
to which Tancredo refers

come from
the bill`s Title II – "Combating
Alien Smuggling and Illegal Entry and Presence,"

specifically Sections 202 and 203.

Thanks in large part to the efforts of Tancredo and his
House Immigration Reform Caucus, H.R. 4437, the
"Border Protection, Antiterrorism, and Illegal
Immigration Control Act of 2005"
was approved by the House of Representatives on December
16, 2005.

Tancredo dismisses the first myth as nonsense in short


harboring illegal aliens
have been on the books for
decades. Of course, they have been

, but they`re there.

Prosecution, or the lack thereof,
for immigration
violations is the responsibility of the various Offices
of the

United States Attorneys
throughout the country. They
are tasked with enforcing violations of the U.S. Code in
the Federal District Courts. But has anyone noticed the
federal government prosecuting Americans who give
illegal aliens an assortment of goodies such as


or identification documents? I think not.

So what makes anyone think that the U.S. Attorneys
across the country will somehow overnight begin

prosecuting folks
who give illegal aliens soup or
sandwiches — let alone prosecuting

in the

Roman Catholic Church
?  Soup kitchens have never and
will not now constitute “harboring” illegal

As for the second myth, illegal aliens by definition
have committed an
immigration violation (
under the Immigration and
Nationality Act). But they might not necessarily have
committed a criminal violation. Illegally
entering the United States is a "crime" now
(although not the gravest type of crime i.e. a felony,
which would carry a higher penalty than the current six
months` jail.) But the mere fact of an alien`s unlawful
presence is not now a federal crime, although it is a
removable offense under the Immigration Act.

Summary: Entrants who have

overstayed the term of valid legal visas
unlawful presence violators.

, Rio Grande River swimmers and other
assorted illegal crossers of the border constitute
illegal entry violators

The House bill does add "unlawful presence" to
the criminal offenses listed along with "illegal
already in the statute.  The bill also bumps
up the penalties for both "illegal entry" and
"unlawful presence"
to "one year and one day"
of prison time, enough to make both offenses into
federal felonies because of the increased length of

Of course, if you really want to get technical here,
many illegal

in the United States—maybe

20 million
strong of them—are already not only
subject to removal for violating the Immigration Act,
but are in fact criminals!

Not only can they already be deported under Immigration
and Nationality Act provisions for breaking the law, but
a great many of them could also be prosecuted for

illegally entering the country
under 18 U.S.
Code Section 1325.

Tancredo also wrote in USA Today that "[r]ight
now, illegal presence in the USA is not a crime; it is a
civil infraction."

Ahem! The Congressman misstates slightly. Illegal
presence is not a crime (see above). But it`s not a
infraction either. It`s an immigration
—and already a deportable offense. 

Here`s a quick thumbnail sketch of all the legal

  • Criminal charges
    are brought by the states or the federal government
    against individuals for violation of state or
    federal criminal codes. Criminal charges can subject
    someone to

    jail or prison time,
    depriving them of

    their liberty

  • Civil lawsuits
    are brought by individuals
    against other persons for money damages or

    injunctive relief
    (namely, getting someone to do
    something, or stop doing something else), but
    without the issue of jail or prison time (which can
    only be administered by the government). Howard

    RICO class actions
    against the employers of
    illegal labor are civil law suits.

  • Aliens who violate
    the immigration laws of the United States as found
    in the Immigration and Nationality Act are

    subject to removal from the country.
    aliens can be accomplished either through

    summary removal
    (hurrah!) or after running the
    course of

    endless litigation
    before the Department of
    Justice`s dreaded Executive Office for Immigration
    Review (EOIR)
    Immigration Court system (boo, hiss!). But the only
    thing that aliens have to fear in this area is
    deportation, not money damages, and not jail time.

  • Aliens who also
    happen to violate certain immigration-related
    provisions of the federal criminal code can also be
    subject to prosecution for their crimes by the U.S.
    attorneys in Federal District Court. Popular
    immigration-related crimes are found in Title 8 of
    the U.S. Code (section
    : illegally entering the U.S.; section 1326:

    alien smuggling

As fans of immigration law enforcement though, just ask
yourself: if all of the illegal aliens running loose
across America are not being deported in any significant
numbers now, (nor have they been since
probably the 1950s
), why should we think these same
illegal aliens will now suddenly be prosecuted by
politically-correct U.S. Attorneys for illegal entry?

Of course, illegal aliens should be prosecuted.
The fact of the matter is that most illegal aliens are
law-breaking criminals already, and they`re also

, cheaters, and thieves (i.e.—stealing a life
in the U.S. that does not belong to them), just for good

When I say "deport
illegal aliens

criminal alien
," the "criminal"
part refers to

(lawful permanent resident aliens) who have
committed crimes that render them deportable under the
Immigration Act.

And by definition, they`ve also committed a crime (in
this case a federal or state criminal offense) in
addition to the immigration violation.  

Tancredo in his USA Today article points out
that, ironically, Republicans have attempted to soften
the law—but the Democrats stopped them:

"Chairman James
Sensenbrenner, R-Wis., wrote an amendment to his own 
bill asking that the penalty be reduced from a felony to
a misdemeanor; 191  Democrats and a few Republicans
voted to keep the felony penalty in the hope that it
would be a poison pill to defeat the measure. After his
amendment lost, Sensenbrenner promised, `When this bill
gets to (House-Senate) conference, those penalties will
be made workable. You can count on that.` "

The incredible truth
that House Democrats actually voted to keep the dreaded
"felony" penalty was also previously pointed out
in an e-mail from a

legislative analyst
published March 25 by

Michelle Malkin

Legal Eagles can check
out my

FAQ section
and also the definitions section of
Immigration Act Section 101(a) for more hair-splitting

But in my humble opinion, this "making it a crime"
business is just one gigantic red herring for the

As long as the federal government is not particularly
interested in enforcing immigration laws anymore, all of
these legal distinctions don`t really hold my interest.

I`d much rather ponder the
grave implications of the recent "Border
article by Jeff Randall in the April 2006
issue of

S.W.A.T. Magazine

Forget the USA Today opinion page . . . now
S.W.A.T. Magazine
, that`s one heck of a page-turner!

Juan Mann [email
him] is an attorney and the proprietor of
He writes a weekly column for
contributes to Michelle Malkin`s

Immigration BLOG