Undocumented Does Not Mean Illegal

In recent years there has been a large amount of debate revolving around what should be done about the problem of illegal immigration in this country. The main proposals that have been made would provide a path to citizenship for those undocumented immigrants who have resided peacefully and productively for a significant time period, while the major objection opponents to this proposal put forth is that it would be giving amnesty to criminals.

What would amaze most Americans is the fact that entering this country without following the regulations set out by Immigration and Customs Enforcement  is not a violation of any federal law. In the entire United States code will you find a statute prohibiting such entry. The law does state that persons who enter the country in this fashion are “deportable”,  but even then the deportation is not an automatic requirement.  The only time such a person’s residency actually becomes unlawful is if he has previously been deported and instructed not to return.  (It should be noted that the ICE regulations dealing with undocumented immigrants are not laws, they are the guidelines federal agencies use to carry out their lawfully enacted duties; Congress has no part in formulating them so violation of them cannot be prosecuted as a criminal act except in such instances where Congress has specifically enacted legislation to that effect.)There do exist statutes that make it a crime to obtain immigration or citizenship documents illegally, but the actual act of entering the country without following the formal immigration process does not appear to be in and of itself a violation of any federal laws.

It may seem unreasonable at first for there not to exist a law that forbids violation of immigration policy in such a manner, but if you look closer it actually makes a great deal of sense. If improper entry were a crime, its perpetrators would then be entitled to all the constitutional protections afforded the criminally accused, including the right to an attorney and a trial. The expense of providing legal services and housing the accused violators until they had their day in court would be prohibitive; not only that, but anyone acquitted at trial, whether by proof of legal residence or a technicality of procedure, would be a de facto legal resident with full eligibility to the naturalization process. In a scenario where improper immigration is a crime, Border Patrol agents who find persons making an improper border crossing would be obliged to Mirandize, charge and book them for future trial instead of the much more streamlined deportation process currently in use. This arrangement has the added advantage that any undocumented aliens who are arrested for less than felonious offenses give prosecutors the flexibility to choose to turn them over to immigration authorities for deportation instead of going to the expense of charging the offender and housing him and conducting a trial.

If it is in fact not a crime to avoid the proper immigration procedure but instead only a regulatory infraction, the granting of a path to citizenship for those violators who have been here long enough to become stable and productive members of our society  cannot in any way be considered some kind of amnesty for a crime never committed in the first place. To the contrary it would serve to correct an injustice inherent in the current system. Consider that in federal law for most non-capital federal crimes there is a statute of limitations on prosecution of five years, after which no charges may be filed against an offender; in the case of the aforementioned crimes of obtaining citizenship or immigration documents fraudulently that limit is even longer at ten years. But there currently exists no such limitation on deportation against someone whose entry into this country is in no way a crime. In other words, rapists and some kinds of killers are given a free pass if they manage to avoid prosecution for five years, but an undocumented immigrant who has committed no crime and has managed to make a life for himself in harmony with his neighbors must fear deportation to his country of origin for as long as he remains here. It is difficult to imagine how anyone could consider this to be a fair and equitable situation.

If under federal law immigration authorities are not able to charge first-time immigration policy violators with a crime, then neither does there exist any legal basis for a state or local government entity to arrest them for suspicion of an infraction which is not a crime under any jurisdiction. Laws like the ones enacted in Arizona and other states which require law enforcement officials to detain suspected undocumented immigrants are a violation of the separation of powers clause of the Constitution as well as a violation of the civil rights of those legal immigrants who are unlawfully detained under their provisions.

There are a number of elements in our society for whom the existence of undocumented immigrants willing to work for less than poverty wages is a desirable thing, allowing them to operate businesses at much lower cost than if they were using regular American residents; these groups have tended at times to have very powerful friends within the federal government, which has many times over the years turned a fairly blind eye to the enforcement of immigration regulations. It is only by this kind of official negligence that we could ever have reached the current state where there exist an estimated 12 million undocumented immigrants in this country. If so many of them owe their continued residency to the willful failure of the government to enforce its own rules how can we then in good faith decide that they alone should pay for our government's lax enforcement, which likely was one of the enticements that brought them here in the first place?

There exist a number of very powerful factors to discourage an individual from attempting to enter the country in violation of federal immigration guidelines. They often must accept substandard wages and unsafe working conditions, and they and their families often live in what most Americans would consider abject poverty. Yet still many of them manage to build stable lives for themselves, becoming productive members of their communities, but they can never come out of hiding for fear of immediate deportation regardless of the fact that they have committed no crime and there apparently exists no federal statute that even forbids their presence. But even with these obstacles life in the United States is often a vast improvement over what they left in their nations of origin; if such a person is somehow able to still manage to make a stable life for himself and his family here under those circumstances without breaking any laws how can it be called anything but an injustice that he should have to continually fear punitive consequences of one act that isn't even technically illegal long after those who have committed far worse offenses enjoy complete immunity from prosecution?

In consideration of all these facts, it would seem more equitable to allow those who have managed to make a life for themselves in this country for a period of five years without violating any laws to have their residency formally recognized so that they can begin the citizenship process, while reserving the right to revoke that status and prosecute anyone who is found during that time to have falsified citizenship or immigration documents until the end of the ten year statute of limitations. And if such a person can provide evidence that he has maintained continuous residence in this country for that minimum five year period he should be afforded the ability to challenge any attempted deportation in a court of law rather than be subject to an arbitrary administrative process. The Fourteenth Amendment to the Constitution provided for the equal protection of all the laws, specifically meaning to apply that standard to black persons who had formerly been slaves; is it not time now that we apply that same standard to immigrants as well?