Ways to be Undocumented But Not a Criminal

This part 3 of a 3 part series.

Being present in the United States without the proper documentation is a civil offense, unless the individual was previously formally deported from the United States. Most undocumented immigrants cross the border by legal means but become undocumented by overstaying their visas or working in violation of their visa provision. However, this violation is a civil one only. It is not a criminal offense and the immigrant cannot be charged with a crime for being in the U.S. without the proper documents. At most, the Department of Homeland Security (DHS) can fine an individual and formally deport them for being in the country without the proper documentation.

The most common way to be undocumented but not a criminal is visiting the U.S. on a 90-day tourist visa and staying in the country. Living and working without authorization is a civil offense. But because the undocumented immigrant entered the country legally, he or she cannot be charged with a crime. At most, they can be fined and deported. Student visa holders who drop out of school or work also become undocumented but not criminals.

As long as they entered the country through a designated point of entry, the offense of being undocumented in the country remains a civil violation.

But it gets more interesting. If an individual crosses the border illegally they can be charged criminally. However, if the individual remains in the country for longer than five years, at most they can only be charged with a civil violation, although they crossed the border illegally. The reason for this is that the criminal offense – crossing the border illegally – has a five-year statute of limitation.

That means that after five years, the undocumented immigrant only faces a civil penalty provided they have not been convicted of other crimes.

The Dreamers

Because it is not a criminal offense to be in the United States without proper documents, many of the Dreamers are not criminals even if they crossed the border illegally. Most Dreamers were brought over as children. Most did not know they were undocumented until well past the five-year statute of limitation.

The Dreamers are not criminals for simply being in the country as undocumented immigrants if they crossed the border legally, i.e. on a visa or illegally crossed it more than five years before.

Criminal Alien

Current United States law does not use the term “criminal alien” nor is the term recognized legally under federal law. The term is only used in the Immigration and Nationality Act (INA) to define individuals who have been convicted of criminal offenses unrelated to immigration law.

The Issue of Asylum Was Identified in 2015

The report studying Operation Streamline (part 2) identified “an additional issue” that was not related to the scope of the OIG investigation but that the investigators felt needed “management’s attention”. The issue it identified was that the “Border Patrol does not have guidance on whether to refer to Streamline prosecution aliens who express fear of persecution or fear of return to their home countries.” The report states; “using Streamline to refer aliens expressing fear of persecution, prior to determining their refugee status, may violate U.S. obligations under the 1967 United Nations Protocol Relating to the Status of Refugees, which the United States ratified in 1968.”

The report pointed out that the Border Patrol routinely ignored the asylum request and referred the immigrant for criminal prosecution for “improper entry”. When the asylum claim was made and approved by an immigration judge, “the judge vacates the conviction for illegal entry,” according to the report’s interviews of Border Patrol officials.

The report recommended that the Border Patrol Chief “develop and implement processing and referral guidance for aliens who express a fear of persecution or return to their country of origin at any time during their Border Patrol processing” through Operation Streamline.

On November 26, 2014, the Border Patrol issued a guidance memorandum to address the credible fear requests.

The issue of asylum-seeking immigrants remains in legal jeopardy today, both under U.S. and international law. Schemes like metering asylum seekers at the border and forcing them to stay in México or returning to México may violate U.S. law. The U.S government identified this possible violation in 2015.

The U.S. Supreme Court will start looking at this issue as more court cases continue to challenge the Trump administration immigration policies.

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