Saturday, January 3, 2009

Deportable Violations of Illegal Immigrants

During my daily read of opposition blogs and other various sources for “Illegal Alien” sympathizers, I see they are again blurring the lines between a “Lawfully Admitted Immigrant” and an undocumented “Deportable Alien”. Why is it they do this, you ask?? Simple, they are attempting to use our own laws against us. Note in Section 237 of the INA there is no term of “Illegal Alien”, only the terms of “Alien”, “Deportable Alien”, “Inadmissible Alien”, “Nonimmigrant Status Violators”, and “Violators of Conditions of Entry”. Therefore, in their eyes, “no human being is ‘illegal’” so the term “immigrant” is the preference they choose instead of just “alien”.

Immigration and Nationality Act Section 237

Sec. 237 [8 U.S.C. 1227]

(a) Classes of Deportable Aliens.-Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:

(1) Inadmissible at time of entry or of adjustment of status or violates status.-

(A) Inadmissible aliens.-Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.

(B) Present in violation of law.-Any alien who is present in the United States in violation of this Act or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 221(i) , is deportable.

(C) Violated nonimmigrant status or condition of entry.-

(i) Nonimmigrant status violators.-Any alien who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under section 248 , or to comply with the conditions of any such status, is deportable.

(ii) Violators of conditions of entry.-Any alien whom the Secretary of Health and Human Services certifies has failed to comply with terms, conditions, and controls that were imposed under section 212(g) is deportable.

Now, let’s look at this from the perspective of the court system. If I am the one going against you in court, it is a civil matter, if the government is taking you to court, whether it is State or Federal, it is criminal matter.

In civil law, a private party (a corporation or individual person) files the lawsuit and becomes the plaintiff. In criminal law, the litigation is always filed by the government, who is called the prosecution.

Criminal law is much better known to laymen than civil law. They often misapply principles from criminal law to situations in civil (e.g., tort) law, which results in their misunderstanding.

Illegally entering the US is a crime (entry without inspection, i.e. “Violators of Conditions of Entry”). Unlawful presence is also a crime (legally entered visa overstay, i.e. "Nonimmigrant Status Violators"). Both violations are removable offenses under the Immigration Act. As deportable aliens are not citizens of the U.S., they do not have the same rights as a U.S. citizen or Legal Permanent Resident. Their deportation hearing takes place before an immigration judge. Since the penalty is deportation and/or a fine and/or jail time (civil and criminal penalties), many people think of the Immigration Court as a civil court. In fact, the Immigration Court is a criminal court, as it is the government prosecuting the offense.

But immigration proceedings are matters of administrative law, not criminal law. (As a result, the consequence of violating your immigration status is deportation.) Because immigration is considered a matter of national security and foreign policy, the Supreme Court has long held that immigration law is largely immune from judicial review. Congress can make rules for immigrants that would be unacceptable if applied to citizens. Congress has nearly full authority to regulate immigration without interference from the courts.

When deportable aliens are prosecuted under criminal law, instead of being expelled through an administrative proceeding, those accused have the right to a jury trial and all the rules of evidence apply as mandated by the Equal Protection Clause. The government is burdened with "proof beyond a reasonable doubt" and the following punishment may actually be considered a Misdemeanor as Section 1325 suggests below; “for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both.”

Imagine the cost and the caseload, that's why “Deportable Aliens” are encouraged to sign a document admitting their status and quickly be removed under immigration proceedings vs. waiting here for a criminal hearing which could take up to 2 years, all the time they remain on an immigration hold in jail, awaiting their court date. Most sign so they don't have to sit in jail and can be deported expediently.

Deportable aliens in detention centers are not being held on criminal law charges, they are being held on Administrative Law charges, for which the Government can hold them for a period of time.

Therefore, in conclusion:

The Government has the choice to prosecute for a criminal charge, i.e. document fraud/forgery, for which the Government must now provide burden of proof. Or to plea deal it down to, sign this paper and be barred for 3 - 10 years and if caught you will be charged with a 'felony' as an 'Administrative Violation'.

The Administrative Violation relieves the Government of having to provide any 'rights' to the 'Illegal Alien', thus detention center or immediate deportation, depending on country of origin.

The Criminal Charge would require the "Deportable Alien" to remain in the custody of our criminal system until his/her court date, which could be as long as 2 years in jail. Most "Aliens" opt for the sign and leave.

Now, if we go over to Criminal Resource Manual 1911 - 8 U.S.C. § 1325;

Unlawful Entry, Failure to Depart, Fleeing Immigration Checkpoints, Marriage Fraud, Commercial Enterprise Fraud

Section 1325 sets forth criminal offenses relating to (1) improper entry into the United States by an alien, (2) entry into marriage for the purpose of evading immigration laws, and (3) establishing a commercial enterprise for the purpose of evading immigration laws. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) amended 8 U.S.C. § 1325 to provide that an alien apprehended while entering or attempting to enter the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty.

We see the amended term of ‘shall be subject to a civil penalty’. This is nothing more than what was added by IIRIRA as an amendment to Section 1325, adding Section 1325 (b).

Section 1325 reads as follows:

(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts. Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

(b) Improper time or place; civil penalties. Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of -

(1) at least $50 and not more than $250 for each such entry (or attempted entry); or

(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.

Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.

So, as you can now see and hopefully understand, “Deportable Aliens” have ‘NO RIGHTS’ granted to them by being in the United States if they are in violation of our immigration laws and are only granted ‘due process’ if they are charged with an infamous crime. Our first line of defense is our Local Police Officers and them knowing their job duties.

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