If a child is brought here by his parents as minor, and remains here until adulthood, he hasn’t committed any criminal violation, but his being here is a civil violation. If someone legally comes here on a visa, but overstays the visa, it’s a civil violation, not a criminal one.

I have to agree with Leonard on this one, Radley – the vast majority ARE criminals in that they did break a criminal law, with intent. That we have great difficulty proving that intent does not change the fact.

How many of them are even assessed the obvious civil penalties? That tells you all you need to know about the intentions of those running the system.

It can sometimes be difficult to prove intent. On the other hand, the fact that there are some cases where people enter the country with no intention of overstaying a visa but end up doing so does not imply that one should ignore cases where people enter the U.S. on a visa but have no intention of ever leaving.

Regarding visa overstayers, here is the NONIMMIGRANT VISA APPLICATION form on the State Department’s website. It includes this question: “Do you seek to enter the United States to engage in export control violations, subversive or terrorist activities, or any other unlawful purpose?…” Overstaying one’s visa is unlawful, as you admit. Presumably, the USG does not let in those who say “yes” to the above question. Or if it does, very few of them. Therefore, I conclude that visa overstayers who get their visa while intending to overstay (which is to say, practically all of them), have “obtain[ed] entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact”. Conclusion: they are, in fact, criminals.

Now, I am not an immigration lawyer, or any lawyer at all. I do not know how courts actually interpret the law. I do know that the state is remarkably flexible about interpretation of all written law. Growing wheat on your own land is “interstate commerce”! If USG wanted to enforce immigration law as per my reasoning above, it could and would. The pieces are there. As it happens, USG does not want to — rather it is schizophrenic. The people want immigration laws enforced, and the laws exist to do it. Most businesses, the Democratic Party, and the progressive elites do not. Thus we get what we have.

That does not change my opinion. The intent of the law is clear, even though the implementation is poor.

Your example with drugs is not convincing. I am for legalization, but the spirit of the drug laws, if not the letter, is that USG don’t want you getting high. What is criminalized — made illegal per the actual written law — is not always exactly what they seek to control. In the case of drugs, making possession illegal has the advantage that it can be determined using low tech searches. Invading people’s bodies with a needle to get evidence of a crime has all sorts of problems with it, as I am sure you would agree.

Modest proposal – How about parity with Mexico? Equal punishment for being in the country illegally, equal levels for paperwork to establish legal residency or for the permission chit be allowed to work. If we want to get really crazy, we can have equal prison living conditions too.

While we’re at it we can build an actual fence, actually all the way across the border. While we will probably save the construction expense itself out of the saving of not detaining people who are here illegally, we can also fund it by taxing all the money that crosses the border via our banks, western union, or debit cards at a stiff rate of say 20%.

If this plan is successfully pulled together we’ll save money on immigration law enforcement expenses while forcing the government of our southern neighbor to the negotiating table. Hey, it sure beats spending billions to only barely get some semblance of democracy in Iraq.

I’d negotiate hard. Tell ‘em that while our fence will remain high, the gate on this side can be just as wide as the one over there. They have resources, cheap real estate and a wonderful climate, we have freedom, democracy, and opportunity. Maybe we can make a deal?

When Baja becomes the 51st state, maybe I’ll be able to load up my hunting rifle, holster my open carry piece, and drive my car totally unmolested to my 2nd home on the shore of the Gulf of California.

If a child is brought here by his parents as minor, and remains here until adulthood, he hasn’t committed any criminal violation, but his being here is a civil violation. If someone legally comes here on a visa, but overstays the visa, it’s a civil violation, not a criminal one.

Similarly, it’s not a crime to have cocaine or marijuana in your system. It is illegal to possess cocaine or pot that you haven’t ingested.

Similarly I am not a “speeder” even though I got from Baltimore to DC in 30 minutes, because no policeman actually pulled me over, and I am not currently doing 90mph. And OJ is not a “murderer”.

It is casuistry. One does not have to be caught breaking a law to be guilty of breaking it. One does not have to be convicted of a crime to have committed it. Yes: I believe that when trees fall in a forest, they do make a sound. Even if a government official is not there to record the event.

It does not bother me at all that such “civil violators” are imprisoned. It does bother me that they are imprisoned inefficiently, if they are. It would also bother me if a significant percentage of them were shown to be legal immigrants or legal aliens; and it would especially bother me if it were shown that the system was inefficient in the discovery of such exculpation. What percentage of those detained for immigration violation are actually here legally? How long are such legal detainees held before being released? Perhaps your colleague Ms. Foley can put in a Freedom of Information Act request to clarify that. But… we both know she won’t. Well, at least I do.

I think you’ve hit on something! The government can set a maximum level of allowed comfort and facilities for prisoners, and then the private prisons can compete for prisoners! Prisoners would get to choose which prison they serve in, and the prison would then receive a daily government stipend for housing that person.

The reason that private enterprises in most fields behave better than state-run enterprises in those same fields is that private enterprises must either satisfy their customers or else lose those customers to other enterprises that can. State-run enterprises seldom have to worry about such things. The problem with private prisons is that their occupants are the people who would be most affected by the differences among competing prison services, but they would not be the ones choosing which prison services to use. While prisons aren’t supposed to be pleasant for inmates, having arbitrary differences in unpleasantness between prisons is probably not helpful.

Being an illegal immigrant is a civil violation, not a criminal one. That is, your presence in this country as an undocumented immigrant is not in itself a crime.

The actual act of trying enter the country illegally can be a criminal violation (I believe it’s a misdemeanor). But you pretty much have to be caught in the act. People arrested and imprisoned indefinitely for being here without documentation then, are getting arrested and imprisoned for a civil violation. Foley is correct. As is DeConto, and just about everyone else who has made the distinction when writing about immigration.

Also, default that everything is solved if USG runs the business is stoopid. USG just contracts out to private business and gets bribed by unions. Oh…and there’s a line that goes back 3,000 years of people abused by government. But I’m sure we’re on the cusp of getting it right what with new professionalism, hope, and change.

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.

And what is Title 18? “Title 18 of the United States Code is the criminal and penal code of the federal government of the United States. It deals with federal crimes and criminal procedure.” (My emphasis.)

If you look at 1325 section b, you’ll see that it specifies a different immigration offense that has specific “civil penalties”, including this statement: “Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed. ”

Illegal immigration is a crime under US law.

So, how can Ms. Foley write what she wrote? Clearly she is misleading. Was it an outright lie? No. I think she is probably correct in a narrow technical sense. In our criminal law, one is innocent until proven guilty. Those detained on suspicion of being illegal aliens are not guilty — not yet. So, that 40% have not been convicted of any crime. They are criminals in most senses of the word; they have broken our criminal law. But they are not officially “criminals” in the sense that they have not been convicted of the criminal behavior yet.

You can’t have it all ways. You can’t complain that ICE is leaving the border open, and then complain when they detail illegal aliens.

Yes I can. Rounding up and detaining suspected immigrants hundreds of miles from the border, months or years after they crossed the border, does nothing for border security.

Secondly, I disagree with Radley on the private prison issue. Government run prisons have the same problems. Instead of private corporations paying for influence, it’s the correctional officer’s unions, and other unions, buying up the votes of the legislature. Being that I live in CA, I see just how powerful those public employee unions are and how effective they can be at bending government to do their will. I would point out that government is also more intractable and less subject to public scrutiny than corporations in most cases.