Written by Jon Feere
For years advocates of amnesty and high levels of immigration have described the illegal alien population as one made up of "otherwise law-abiding" people who have committed no violation other than the simple act of crossing a border illegally or overstaying a visa.1 Journalists routinely invoke this language when writing about amnesty, conspicuously avoiding any discussion of the various crimes the average working illegal alien commits. Many politicians have also embraced the myth of the otherwise law-abiding illegal alien in an effort to promote amnesty, arguing that illegal aliens are no threat to the United States.2
But the average illegal alien violates numerous statutes, often creating real victims.
This Backgrounder details the many statutes the average illegal alien who is simply "here to work" may be violating. The violations include laws involving the entry, presence, and travel of illegal aliens as well as laws related to employment such as perjury and identity theft. Examples of oft-violated but under-enforced laws include:
False Personation of a U.S. Citizen (18 U.S.C. § 911). Illegal aliens often present themselves as U.S. citizens, an act punishable by up to five years in jail, a felony. This law is often cited in immigration prosecutions and may involve, for example, an alien claiming U.S. citizenship to his employer.
Fraud and False Statements (18 U.S.C. § 1001). It is common for illegal aliens to make false statements to the government or on official documents. An illegal alien violates this law when claiming to be a U.S. citizen on an I-9 Employment Eligibility form and faces a fine and up to five years imprisonment.
Social Security Fraud (42 U.S.C. § 408). This statute has been invoked where an illegal alien provided a false Social Security number for the purpose of acquiring a job, where an illegal alien used a fraudulent Social Security number for the purpose of acquiring a driver's license, and when an illegal alien used a Social Security card belonging to a citizen in order to obtain Section 8 housing, for example. Violation of this statute can result in a fine and/or imprisonment up to five years. The court can also require violators to provide restitution to the victims.
This Backgrounder does not address crimes of violence, property crimes like vandalism, or other acts like gang activity and drunk driving. The focus is on statutes that come into play when a person enters the country illegally or overstays a visa and becomes employed.
Over the past several years, the Obama administration has narrowed the scope of immigration enforcement, promising to focus on what President Obama considers "the worst of the worst" violent offenders.3 But just because an illegal alien isn't a violent threat to society, it does not follow that his or her presence is not a threat to the rule of law, taxpayers, and society generally. Despite the opinion of amnesty advocates — namely, that the United States can give a pass to violations of law without suffering any repercussions — our nation's immigration laws do serve a variety of purposes and are ultimately meant to protect those who are in the United States lawfully.
Nevertheless, illegal aliens who violate the statutes listed in this report remain a low priority under the guidelines set forth by the Obama administration.
According to Immigration and Customs Enforcement (ICE), the agency "prioritizes the removal of criminal aliens, those who pose a threat to public safety, and repeat immigration violators." Although low-level illegal aliens engaged in basic identity theft do pose a threat to the public, the Obama administration has directed ICE to ignore such criminality and to focus on the "worst of the worst". Often called the White House's "administrative amnesty", the immigration agenda pursued by the Obama administration is often referred to as a "prioritization" scheme, but it is largely a decision to not deport illegal aliens unless or until a crime of violence has occurred. The policy came into shape through what are known as the "Morton Memos", a series of directives from former ICE director John Morton.4 The directives resulted in the union for ICE agents taking a vote of "no confidence" against Morton in June 2011.5
The Obama administration extended its plan to not enforce some immigration laws on June 15, 2012, announcing that most illegal aliens purporting to be under age 31 and claiming to have come to the United States prior to age 16 would be granted a renewable two-year legalization known as Deferred Action for Childhood Arrivals (DACA). The program excludes illegal aliens convicted of felonies, "significant misdemeanors" (e.g. domestic violence, sexual abuse), or three or more non-significant misdemeanors (one for which the individual was sentenced to time in custody of 90 days or less). Put another way, illegal aliens applying for DACA can commit misdemeanors and create real victims and still qualify for the Obama administration's amnesty program — a program never approved by Congress, creating conflicts within federal law. These conflicts led to ICE agents suing the Obama administration, claiming that they were being forced to choose between enforcing federal law and abiding by political priorities.6 In the 15 months DACA has been in operation, over 400,000 illegal aliens have received legal status through the program.7
The fallout from releasing or not detaining so-called low-priority aliens has inflicted serious damage on American society, as detailed in a recent Congressional Research Service (CRS) report. CRS is the non-partisan public policy research arm of the United States Congress. CRS studied an approximately 30-month period and found that ICE took no action against more than 159,000 non-citizens who were arrested by local officers and flagged by the federal Secure Communities program.8 Of these 159,000 criminal aliens, nearly 47,000 were illegal aliens, 16,000 had temporary visas, 87,000 had green cards, and 9,000 had another legal status such as refugee or temporary protected status.
Upon release, more than 26,000 of the criminal aliens — about one in six — were arrested again within the time period studied (October 27, 2008 through July 31, 2011). They were charged with nearly 58,000 new crimes during this time period. The 58,000 new crimes included more than 5,000 major or violent criminal offenses, including 59 murders, 21 attempted murders, and 542 sex crimes. In addition, they were charged with more than 6,000 drug violations and nearly 8,500 DUI violations.9
Presumably some of the criminal aliens were jailed, fined, and deported after committing the murders and sex crimes, but many of the aliens were deportable prior to their acts of violence. Victimization of American citizens, it seems, is all too often a prerequisite for immigration enforcement.
Removing illegal immigrants at the first instance of illegal activity, no matter how small the crime, could prevent larger crimes in the future. This type of enforcement — opposite the approach taken by the Obama administration — might be considered the "broken windows" theory of immigration enforcement. A commitment to immigration enforcement could prevent tens of thousands of Americans from becoming victims.
If Congress were to pass an amnesty it would immediately give illegal aliens a pass for their violations of immigration law, ranging from illegal entry to overstaying a visa. Many illegal aliens who might benefit from an amnesty have been ordered to leave the country, and they have 90 days to do so from the final removal order. It is incorrect to refer to an alien in the United States 90 days after a removal order as "law-abiding". The alien faces a fine and imprisonment for the violation. Any amnesty or administrative pass for an alien's lawlessness would not be a pass for just the illegal entry or overstay of a visa, it would also be a pass for the alien's decision to ignore the order of removal. It would be a literal get-out-of-jail-free card since the alien would not have to pay a fine or face imprisonment as current law requires.
But an amnesty would also likely give illegal aliens a pass for the other crimes listed in this report. As written, violation of any of the dozens of laws listed below, such as those involving identity theft, could result in an illegal alien being deported after paying a fine or serving time in jail for the violation. However, proposed amnesties have been written so as to not render an applicant ineligible even if he has violated certain statutes and committed some misdemeanors. And due to political priorities in the Obama administration, many of the laws listed below are not being enforced anyway. Taken together, these policy prescriptions make the concept of conducting background checks on illegal aliens applying for amnesty somewhat absurd. Nevertheless, some of these crimes currently being committed by illegal aliens can amount to aggravated felonies and would prevent an alien from being deemed to have "good moral character", permanently barring them from naturalization under existing immigration law.10
Millions of illegal aliens have engaged in identity fraud, a crime that creates real victims. Yet it is unlikely that the White House would require aliens applying for amnesty to declare the names and Social Security numbers they have used in the past. The original application for the DACA amnesty did require applicants to list the Social Security numbers they had previously used; after amnesty advocates complained, the Obama administration removed the requirement, leaving the American victims — the true owners of the numbers — completely in the dark as to the crimes committed against them.11 Real victims have been created yet amnesty gives these violations a pass, putting the interests of the illegal alien before the interests of the U.S. citizen. This is a fact rarely addressed by amnesty advocates or journalists who perpetuate the myth of the otherwise law-abiding illegal alien.
It is important to remember that, ultimately, an amnesty is a free pass not only for the basic immigration violations, but also a free pass for many other crimes committed during the alien's stay in the United States.
What about Detention? The myth of the law-abiding illegal alien is also important in the context of detention. In 2002, Congress tasked ICE with creating an "Alternatives to Detention Program", which allows aliens "who present a low risk of flight, and who pose no danger to the community" to be released without detention as they await deportation proceedings.12 The threshold of posing "no danger" should be a difficult one to meet considering the numerous criminal statutes the average illegal alien may be violating, but non-violent crimes generally are not considered a bar to alternative detention. In the period studied by ICE between 2002 and 2009, most of the nearly 40,000 aliens granted an alternative to detention only had to meet limited requirements such as calling ICE at certain times throughout the day or being present for unannounced home visitations. Over 2,000 of these aliens simply disappeared. It is unclear how many crimes the aliens committed while in "alternative detention" and whether those who absconded are continuing to commit crimes today, crimes that the Obama administration considers too insignificant to justify deportation.
What Is a Criminal? Many illegal aliens are potential "criminal aliens" as many have violated a number of criminal statutes (e.g. identity theft).13 Some illegal aliens are "violent criminal aliens" and have committed more serious crimes (e.g. murder).14 It is important that language is used cautiously and that illegal aliens are never referred to as "non-criminal" or "otherwise law-abiding" unless it is clear that they have violated no criminal statutes on the local, state, or federal levels.
Additionally, it is important to think about what it means to be a criminal. In the legal sense, only after one is found guilty of a legal violation is one considered to be a "criminal". In the colloquial sense, a person who has broken a law, but has not yet been prosecuted or convicted, is often considered to be a "criminal." Black's Law Dictionary, for example, explains that the word "criminal" can be used to describe a person "who has been convicted of a crime" or a person "who has committed a criminal offense". While those writing on the subject of immigrant criminality are justified in being cautious about referring to an individual as a criminal, writers should be equally cautious about using the phrases "non-criminal" and "law-abiding" when referring to illegal immigrants.
Simply because a person has not been brought before a court, prosecuted, and found guilty, it does not necessarily follow that the individual has not engaged in criminal activity. This is often true in immigration enforcement where ICE will encounter, for example, a number of illegal aliens using false documents at a worksite. ICE will often make the decision to deport the individuals based on their illegal status without filing identity fraud or perjury charges, for example, even though it is understood that fraud was used to acquire the jobs. The decision to not go after the alien on perjury or fraud charges is a way of avoiding the expenditure of resources on detention and a trial. Such a decision is also advantageous to the alien because he avoids the punishment (a fine or imprisonment) associated with the criminal violation. Of course, deportation without punishment for crimes committed here is arguably a loss to the United States (and to individual victims) because the fines are never collected. It also has the effect of making an illegal alien appear "non-criminal" and "otherwise law-abiding".