Immigration law reform—overstaying a visa should be a crimeby Hugh Holub on Nov. 19, 2010, under border issues, politics, SB 1070
It may surprise many, but overstaying a visa is not a crime in the United States.
It is a misdemeanor to enter the US without being processed. But it is not a crime to be in the US illegally.
This is one of the differences between SB 1070 and federal immigration law. SB 1070 attempts to make being in the US without documentation a criminal act, whereas federal law makes this a civil penalty.
Overstaying a visa subjects the person to civil penalities, removal and a ban on getting another visa which varies in length depending on how long one overstayed their visa.
It also should be noted that out of the 12 million people suspected of being in the US illegally, half of them came in on visas and overstayed them.
Here is my take on all this:
First, the illegal entry into the United States should be upgraded from a misdemeanor to a felony.
Since criminal laws cannot be retroactive, those who have already crossed would still be under the misdemeanor provision. But as part of securing the border so other elements of immigration law reform could be implemented, starting as soon as possible, Congress needs to raise the penalty for illegal entry to felony status.
Why a felony?
For a lot of reasons. First is it is hard to justify 30,000 or 40,000 Border Patrol agents and billions of dollars chasing around misdemeanants.
People keep saying “illegal is illegal”. Yep…but there are gradations of illegality, and misdemeanors are not serious offenses. Fines and prison terms for misdemeanor infractions are minimal. Illegal entry is right up there with a speeding ticket right now. One does not lose their civil rights for having been convicted of a misdemeanor.
And that is the second reason…once convicted of a felony you have serious consequences like losing your right to vote. In the case of an illegal entrant, the equivalent penalty is being barred for life from being granted any kind of visa and being allowed to stay in the United States.
Right now the biggest risk an illegal entrant has is he or she will be deported so they can try and enter illegally again.
Raising the penalty for illegal entry to a felony slams the door on this scenario. Booted once, caught a second time serious jail time.
Since it is widely anticipated that the minute the US starts seriously considering some form of immigration law reform the border will be flooded with illegal entrants, the upgrading of illegal entry to felony status is crucial to sending a message that the doors are not open to take advantage of immigration law reform.
Once the higher criminal penalty is in effect, the only way to gain legal status in the US has to be through the visa process, period.
If you cross the border after the effective date of the upgrade to felony status, you are toast. That is a message that must be sent.
Then there is the problem of overstaying a visa.
I also suggest that overstaying a visa be made a felony. With jail time, deportation and a lifetime bar from ever getting any kind of visa. Caught re-entering, you go directly to jail.
Once the penalties are raised for overstaying a visa (this also cannot be retroactive)…there is a difference…every day after the new law takes effect the new criminal penalty would apply. It would be illegal to be illegal to be in the US without documentation.
I would suggest that that for the next 60 days after the penalty for overstaying a visa was upgraded to a felony crime, all those currently inside the country illegally would have a “window of opportunity” to turn themselves in, be subject to a $5,000 fine, be granted a temporary resident or worker visa (provided they have no other criminal record) , and be barred for life from a citizenship track unless they did some serious community service work as volunteers or joined the US armed forces and were discharged honorably.
After the 60 day window…then a hard line is drawn. If the government has to catch you, you are given a choice… 5 years in jail or deported and you pay for your deportation plus a $5,000 fine. You are permanently barred from entering the US. Caught re-entering, you go directly to jail.
For this to work the ability of INS to track people with visas needs to be massively improved over what exists now. Probably INS is incapable of processing 12 million people in 60 days…maybe that would have to be 180 days. To whatever degree INS whines about their inability to handle this exposes the huge flaw in our immigration control system.
One must remember we have 12 million people illegally in this country because we did not do what was necessary to control this for decades. So we as a nation are just as much at fault as the undocumented aliens here. They exploited our failure.
Thus creating that “window of opportunity” is not so much “amnesty” as it is recognizing they wouldn’t be here in the first place if we had secured our border and reformed INS a long time ago.
As long as the penalties for illegal entry and overstaying a visa are minimal, and the ability of the US government to catch anyone illegally in the country is minimal, and our border is not secured… millions of people are going to take advantage of this situation.
The “open borders” crowd opposes tough criminal penalties for illegal entry and overstaying a visa.
As long as there are terrorists out there, and as long as there are criminals seeking to get inside the US to pursue their criminal activities here we cannot have an “open border”. Controlling who enters this country is a necessary component of our sovereignty.
I am absolutely committed to stopping the deaths and human rights violations going on in our borderlands. But an “open border” is not the way. Stopping people from entering the US illegally is the way.
UPDATE : I am trying to spark some meaningful debate about the immigration issue. Obviously if the current penalities are not sufficient to deter illegal entry and overstaying visas, then one option is to increase those penalities. However, the degree to which increasing criminal penalities is opposed…that points out the inconsistency of our policies about securing the border and immigration law reform….and why after all these years…we still have the problems we have.
If you don’t like the option of increasing criminal penalities…what is your proposed alternative?
Here is a discussion about the current penalities for overstaying a visa:
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