Labels Matter

This is an op ed I wrote for the San Mateo Daily Journal. It was published on March 24, 2017.

Is it a crime to be an undocumented immigrant in the United States? You might be surprised to learn the answer. I know I was.

I’m using the word “undocumented” rather than “illegal” deliberately. Doing something illegal, in the public mind, makes you a criminal…and being a foreigner in the United States without proper documentation is not a criminal offense. That’s not my opinion; it’s how Congress wrote the law.

It is a violation of Federal rules & regulations, and makes one subject to immediate deportation. But you aren’t subject to arrest and prosecution provided you entered with valid documents.

Even if you entered without authorization, under our legal system you haven’t committed a crime until you’ve been tried and convicted in court (we do that to protect people from the misuse of public power). Convicting someone of entering without documentation is difficult, unless the person is caught at the border. That’s one reason why, in almost all cases, criminal charges aren’t filed. The person is simply deported.

But many undocumented immigrants haven’t violated that criminal statute. Years ago, entry without authorization was the most common way for people to become undocumented residents. But that’s changed. Now, the majority of new undocumented residents “arrive” by staying past the terms of their visa. Which is not, under our laws, a crime.

Instead, it’s an administrative violation. This is like the ones most cities have which place limits on personal behavior. Such as limiting how much junk can be in your yard; forbidding you from playing music too loudly past a certain time of day; or building too tall a fence.

There are consequences to violating administrative rules and regulations. You can be required to correct the behavior, pay a fine, lose the privilege of applying for permits or licenses you may want, or some combination thereof.

But you can’t be arrested, bound over for trial and, if convicted, thrown in jail. It’s a different kind of infraction.

All of this means most of the undocumented immigrants you encounter are not criminals. Yet, too often they get lumped in with convicted burglars, thieves, robbers or worse.

The fact that some unlawful immigrants do engage in criminal behavior reinforces the general mischaracterization. But just like most criminals are lawful residents, but not all lawful residents are criminals, that “logic” doesn’t hold up.

Given how complex this all is, it’s worth looking at how law enforcement professionals see things. They are highly trained in the law, and how it’s applied. Take the San Mateo County Sheriff’s Department, whose mission is to keep us all safe from criminal activity.

They will only assist Federal Immigration and Customs Enforcement personnel if the targets are engaged in criminal activity. Which highlights the difference between being in the United States without documentation and being a criminal. It’s worth keeping their expert perspective in mind.

Undocumented immigrants are subject to immediate deportation for having violated our rules. But considering them to be criminals is unwarranted and, increasingly, flat out wrong.

How we view them is a choice we each have to make. In making it, I hope we remember to do unto others as we would have them do unto us. After all, none of us would want to be branded a criminal, with all that entails, for having built too tall a fence on our property.

2 thoughts on “Labels Matter”

  1. Eva Heninwolf

    Thank you for this information and clarification! I wasn’t aware that it’s not a crime to have an expired visa. Good to know.

    1. Happy to share what I learned, Eva. As always on anything involving the law, please remember I am not an attorney, so make sure you check with one before doing or not doing anything.

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