The Undocumented: Rule of Law and Humanity

The Facts, The Law, Decency, Dignity, Humanity

All right, let’s talk; you and me.

We start with the facts. Although there is something appealing about John Lennon’s words “Imagine there's no countries, It isn't hard to do; Nothing to kill or die for
And no religion, too,” that is not our world today. There are countries and each has a border. In no case of which I am aware is there any country that does not have rules for entry into its territory.

In the case of the United States of America. entry into the country is governed by the federal government, not any of the individual states, even though when one enters the country, one usually finds herself in one of America’s states. The state one enters may have its own rules regarding eligibility for state benefits, but otherwise, the subject of entry is purely one of federal law.

Article I, Section 8 of the United States Constitution confers upon Congress the responsibility “to establish a uniform Rule of Naturalization.” These words are generally understood to mean how one becomes a citizen, but over the years, the Courts have decided that a combination of factors results in the federal government’s broad, exclusive power over everything about people coming to America. Article I, Section 8 grants Congress the power to regulate commerce with foreign nations. The Supreme Court has interpreted this to include the power to regulate the entry and exit of people, as they are considered a form of "commerce.” In addtion, the federal government also possesses an inherent power as a sovereign nation to control its borders and conduct relations with other countries. This power is not explicitly stated in the Constitution but is understood to be necessary for a nation to function.

The primary part of the United States Code governing entry into the United States is found at Title 8, primarily in Chapter 12, Subchapter II, Part I and Part II. Here, one will find the laws about "Immigration and Nationality," and the various aspects of immigration, including entry, admission, and status of aliens.

Over the nearly 250 years of America’s existence, it is fair to say that our nation developed a standard of living, an economy and principles of human dignity that became the envy of the world. And so, over those nearly 250 years, no one should be surprised that people from every corner of the Earth have looked to the United States of America as a place they want to visit or perhaps even to reside in permanently.

The folks who have served as our lawmakers have never ignored what they perceived as their duty; to regulate who, what, when, where and why when it comes to who can come to our shores. Those regulations, fair to say, have always held to the principle that our borders are not “open.” Those regulations have restricted entry by absolute numbers. Those regulations at times have included “who” can come to America. Those rules and regulations have never said, come one, come all, as many as possible, any time you want.

The irony of the many rules concerning “immigration” is that our country also developed the reputation as the “land of dreams” and as the place one can go if one is being persecuted, harassed, tortured, by their own country. No one doubts the sincerity of the great Emma Lazarus words “give me your tired, your poor, your huddled masses, yearning to breathe free.” This ideal has rarely been matched by our laws.

And thus, over the decades of our nation’s existence, millions have sought to enter the United States secretly and without compliance with the many rules for entry. Why?

That is the real question that no one in authority really wants to answer or honestly confront. But first, let’s get a few things out of the way.

We know (because they have told us so) that there are millions of White Nationalist Racist insects posing as humans who want America to be a white Christian country. We know that they would prefer “minorities” to get the hell out of America. We know that millions of Americans are scared out of their minds at the prospect that America is becoming a “minority-majority” nation. So let us put the racists aside.

In addition to the racists, there are the fear-mongering, power hungry among us who claim that “immigrants” are overruning America, bringing with them their criminal minds and their desire to rape our women.

Needless to say, no sane person would want anything but vigorous enforcment of our criminal laws, no matter whether crime is being committed by those who have come here illegally and no matter the crime, from human trafficking, drug smuggling, etc.

But here is the truth and if you believe otherwise, you are misinformed. On a day to day basis, more crime is committed within our borders by folks born here than is committed by people who have legally or illegally come to America.

So let us put aside the present day fear mongering by the likes of the current federal leadership by simply stating they are a pack of liars. Everyone wants our criminal laws to be enforced. If a person comes to America to commit crime, they should suffer the consequences the same as anyone else.

So where does that leave us? How about the millions upon millions who come from another country, did not comply with our federal statutes, but otherwise have complied with our laws, paid taxes to their cities, counties, states and the feds, started families, and have overall contributed to the positive welfare of the communities in which they live.

Yes, they “broke the law” (and for ease of discussion, I am now not talking about “dreamers,” those folks brought here at age 5 by parents who did not follow the rules and now find themselves adults). What does “broke the law” mean?

It depends. Let us first consider folks who come to America on a visitor visa and then stay after their visa has expired. Overstaying a visa in the United States is generally considered a civil violation of immigration law, not a criminal offense. While it is not a crime in itself, it can lead to various civil penalties and consequences, such as deportation and restrictions on future entry into the U.S. However, certain actions related to visa overstays, like using fraudulent documents or resisting immigration officials, can lead to criminal charges.

What about the simple act of sneaking in without ever addressing the rules for entry and continuing presence within our nation?

Here, I will summarize my own legal research, grounded in a standard and careful AI search. I am confident in the accuracy of the following:

In the United States, entering the country without authorization is a criminal offense. This is distinct from “unlawful presence”, which generally refers to staying in the country without permission after an authorized entry (like overstaying a visa), and is considered a civil violation. Under U.S. law, specifically Title 8, section 1325, it is a crime to unlawfully enter the United States. This applies to those who enter without inspection at a port of entry, elude examination, or use false information to gain entry.

A first offense is typically a misdemeanor, punishable by a fine, up to six months in prison, or both. Subsequent offenses can be charged as a felony, leading to imprisonment for up to two years, and potentially higher penalties for re-entry after previous removal, especially after certain criminal convictions.

Now again, “unlawful presence” is a term of art in this field of law. Simply being present in the United States without authorization is not a crime. It is considered a civil violation of federal immigration law. The primary consequence of unlawful presence is deportation or removal (and for the first time in our country’s history, there are those among the leadership of our nation who do not believe deportation or removal requires procedures under the heading of “due process”). Unlawful presence can also lead to inadmissibility, potentially barring a person from re-entering the U.S. in the future.

So in summary, people who enter the U.S. unlawfully can face both criminal and civil consequences. Over the years of our nation’s legal history, federal law has prioritized criminal prosecutions for illegal entry and re-entry offenses, which has led to a significant increase in these cases in recent years. And over the years, at least until today, while illegal entry has been a crime, the vast majority of individuals apprehended were processed through civil removal proceedings rather than criminal prosecution.

The foregoing is how things have been done or should have been done. But we still need to understand the “why.” And here, let us not bury our collective heads or our logic and reason. The overwhelming majority of such entries into the United States either without authorization from the start or without continued authorization is because this is really and truly the “Boulevard of Broken Dreams” (thank you Green Day). People come here to work. People come here to avoid persecution, harassment, torture in their country. People come here to improve their lives. Every legitimate study supports these statements and if you believe otherwise, you are misinformed.

So yes, we have a lot of people in America who did not do it right either once here or from the beginning. And yes, we are a nation governed by laws, not by people (read autocrats). But we are also a nation that has prided itself on words and phrases like “compassion,” “dignity”, “humanity,” “decency.” And we are a nation with a history of shaping our laws to meet the imperitive of these lofty words. We are a nation founded upon principles first enunciated in The Bible, even as we are supposed to be a secular nation in practice. And thus words like “love the stranger as yourself” are not mere trifles to be ignored in the development and implementation of public policy.

The “strangers” who have come to America have in fact enriched our nation and, incidentally, have learned something about the richest country on Earth. That there are jobs, tasks, toils that folks born in America seem reluctant to do. And so, over the decades, a large percentage of those who did not follow the rules of entry have repaid us many times over in the fields, hotel rooms, construction sites, child care centers and nursing homes of our nation, picking, cleaning, building, diaper changing and turning the elderly.

Of more than passing interest is that America has never been interested in helping the other nations of the world in the improvement of their conditions and standards of living so that more of their people would choose to stay where they were born. No, what we have done by the creation of our nation and its rich standard of living is entice folks to come here, give them the opportunity to work and then call them “illegals.” Nice, eh?

We all know that Congress has had many chances to fix things so that decency, dignity and humanity would triumph in America. We know that Congress has failed.

And so today, we find a United States of America that has turned toward its darker side, its cruel side, its inhumane side. And in a seeming irony for our times, there is now evidence that many of those who sounded the alarm are not entirely comfortable with the wholesale rounding up of everyone who “looks illegal.”

The MAGA person whose housekeeper or gardener is being arrested and deported without due process is not a happy camper today. Surprised?

There you have it; the facts. And if you believe otherwise, you are misinformed.