Illegal Us Entry: When Did It Become A Law?

Entering the US illegally has been a crime since the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. This law states that any non-citizen who enters the US without inspection and admission by an immigration officer, eludes examination or inspection by immigration officers, or attempts to enter the US by a willfully false or misleading representation is guilty of a misdemeanor. The law also outlines the penalties for those who enter the US illegally more than once, or after a final order of removal or after being convicted of an aggravated felony.

Consequences of illegal entry into the US

The consequences of illegal entry into the US are significant and wide-ranging. Firstly, it is important to understand that illegal entry is considered a federal crime in the US, and those who enter the country illegally can be convicted and penalized. The specific consequences can vary depending on the circumstances and the number of offences. Here are some key consequences:

Criminal Penalties

For a first offence of illegal entry, an individual can face criminal penalties, including a fine, imprisonment of up to six months, or both. If a person is found re-entering the country illegally, the penalties increase. The civil penalty fine is twice the amount for a first offence, and legal penalties include imprisonment of up to two years, a fine, or both.

Deportation and Bans on Re-entry

Those who enter the US illegally are often deported and may face bans on re-entering the country. This can have long-term implications for their ability to immigrate to the US in the future.

Separation of Families

The prosecution and imprisonment of adults can lead to the separation of families. Spouses may be separated, and parents may be removed from their minor children, who are then placed in the care of federal authorities in shelters or foster homes.

Impact on Asylum Seekers

Individuals seeking asylum or protection in the US, often due to persecution or torture in their home countries, are still subject to criminal prosecution and incarceration. This is despite international law, which states that nations should not penalize individuals requesting protection.

Difficulty in Future Immigration Attempts

A conviction for illegal entry can impede current and future attempts to migrate to the US lawfully or obtain asylum. It may also make it significantly more challenging for an individual to legally immigrate in the future.

Increased Priority for Criminal Prosecution or Deportation

If an individual with a prior conviction for illegal entry is subsequently apprehended, they may become a higher priority for criminal prosecution or deportation.

Negative Impact on US-Mexico Relations

The increase in criminal prosecutions for illegal entry, particularly during the Trump administration, has strained relations between the US and Mexico. This has led to discussions about the potential negative impact on cooperation in areas such as drug enforcement and trade.

Illegal re-entry into the US

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 increased penalties for those who assist illegal immigrants into the US, created a 10-year re-entry ban for those who had been deported after living in the US illegally for over a year, and expanded the list of crimes that any immigrant could be deported for. In April 2018, the then-Attorney General Jeff Sessions implemented a "zero-tolerance policy" that required each U.S. Attorney's Office to prosecute all DHS referrals of illegal entry violations. This led to a 98% increase in federal criminal prosecutions for illegal (or "improper") entry and illegal re-entry from 2017 to 2019.

The prosecution of individuals and families fleeing persecution or torture has resulted in family separation, with spouses and parents being separated from their minor children. High conviction rates for these federal offences have led to mandatory incarceration for many migrants, impeding their current and future attempts to migrate lawfully or obtain asylum.

Immigration and Nationality Act of 1952

The Immigration and Nationality Act (INA) was enacted in 1952 and has been amended several times since. It is contained in the United States Code (U.S.C.), a collection of all the laws of the United States. Title 8 of the U.S. Code covers "Aliens and Nationality".

The 1952 Act upheld the controversial national origins quota system established by the Immigration Act of 1924. It revised the 1924 system to allow national quotas at a rate of one-sixth of one per cent of each nationality's population in the US in 1920. This resulted in 85% of the 154,277 visas available annually being allotted to individuals of northern and western European lineage.

The Act also ended the exclusion of Asians from immigrating to the US and introduced a system of preferences based on skill sets and family reunification. However, the new law allotted new Asian quotas based on race instead of nationality, and the low quota numbers ensured that total Asian immigration after 1952 remained very limited.

The Act also included several other positive changes to the implementation of immigration policy. It created a system of preferences to help American consuls abroad prioritise visa applicants in countries with heavily oversubscribed quotas. It also gave non-quota status to alien husbands of American citizens and created a labour certification system to prevent new immigrants from becoming unwanted competition for American labourers.

• Worldwide level of immigration
• Numerical limitations on individual foreign states
• Allocation of immigrant visas
• Procedure for granting immigrant status
• Revocation of approval of petitions; effective date
• Unused immigrant visas
• Annual admission of refugees and admission of emergency situation refugees
• Adjustment of status of refugees
• Special agricultural workers
• Admission of immigrants into the United States
• Inadmissible aliens
• Admission of aliens on giving bond or undertaking; return upon permanent departure
• Requirements for sponsor's affidavit of support
• Admission of nonimmigrants
• Travel control of citizens and aliens
• Conditional permanent resident status for certain alien spouses and sons and daughters
• Conditional permanent resident status for certain alien entrepreneurs, spouses, and children
• Visa waiver program for certain visitors
• Admission of temporary H–2A workers
• Designation of foreign terrorist organizations
• Application for visas
• Immediate relative and special immigrant visas
• Lists of alien and citizen passengers arriving and departing
• Detention of aliens for physical and mental examination
• Entry through or from foreign territory and adjacent islands
• Designation of ports of entry for aliens arriving by aircraft
• Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing
• Preinspection at foreign airports
• Apprehension and detention of aliens
• Mandatory detention of suspected terrorists; habeas corpus; judicial review
• Expedited removal of aliens convicted of committing aggravated felonies
• Initiation of removal proceedings
• Removal proceedings
• Cancellation of removal; adjustment of status
• Voluntary departure
• Records of admission
• Detention and removal of aliens ordered removed
• Judicial review of orders of removal
• Penalties related to removal
• Temporary protected status
• Adjustment of status of nonimmigrant to that of person admitted for permanent residence
• Adjustment of status of certain entrants before January 1, 1982, to that of person admitted for lawful residence
• Rescission of adjustment of status; effect upon naturalized citizen
• Adjustment of status of certain resident aliens to nonimmigrant status; exceptions
• Change of nonimmigrant classification
• Record of admission for permanent residence in the case of certain aliens who entered the United States prior to January 1, 1972
• Removal of aliens falling into distress
• Conditional permits to land temporarily
• Hospital treatment of alien crewmen afflicted with certain diseases
• Control of alien crewmen
• Employment on passenger vessels of aliens afflicted with certain disabilities
• Discharge of alien crewmen; penalties
• Alien crewmen brought into the United States with intent to evade immigration laws; penalties
• Limitations on performance of longshore work by alien crewmen
• Alien seeking entry; contents
• Registration of aliens
• Registration of special groups
• Forms for registration and fingerprinting
• Notices of change of address
• Prevention of unauthorized landing of aliens
• Bringing in aliens subject to denial of admission on a health-related ground; persons liable; clearance papers; exceptions; "person" defined
• Unlawful bringing of aliens into United States
• Bringing in and harboring certain aliens
• Unlawful employment of aliens
• Unfair immigration-related employment practices
• Penalties for document fraud
• Civil penalties for failure to depart
• Improper entry by alien
• Reentry of removed aliens
• Aiding or assisting certain aliens to enter
• Importation of alien for immoral purpose
• Jurisdiction of district courts

Operation Streamline

History

Concerns with Operation Streamline

Misallocation of Resources

Critics argue that Operation Streamline leads to a misallocation of funding by shifting prosecutorial resources away from significant threats to public safety. Rather than spending additional time and resources prosecuting serious crimes, including gun and drug trafficking or organized criminal activity, federal lawyers and courts are spending disproportionate time and resources on illegal entry or re-entry cases.

Increased Criminalization and Financial Costs

Undermining Due Process

Without a meaningful opportunity to present their individual claims for asylum and other forms of relief under Operation Streamline, immigrants' due process rights are under threat. Facing pressure to move migrants through the criminal justice system quickly, federal courts in border regions have resorted to holding hearings and sentencing en masse. These mass proceedings lack important safeguards and individualized adjudication necessary to afford due process to impacted migrants.

Defenses of the Program

The United States Border Patrol and other branches of the US government have defended the program as a key component of a deterrent strategy that they believe has reduced overall rates of unauthorized border crossing. Legislators have also defended its importance in maintaining national security.

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) was enacted as division C of the Omnibus Consolidated Appropriations Act of 1997. It made major changes to the Immigration and Nationality Act (INA) and came into effect on April 1, 1997.

Former US President Bill Clinton asserted that the legislation strengthened "the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system — without punishing those living in the United States legally". However, the act has faced criticism for being overly punitive, eliminating due process from the majority of removal cases, and curtailing relief from removal.

Changes to the INA

IIRAIRA's changes to the INA included:

• Expansion of aggravated felonies: The definition of "aggravated felony" was expanded to include any crime with a penalty of one year or longer. Any non-citizen convicted of an aggravated felony faces collateral immigration consequences, including a "presumption of deportability" and being barred from receiving relief from deportation. Aggravated felony charges can also be applied retroactively.
• Removal proceedings: The act merged exclusion and deportation proceedings into removal proceedings, which are adjudicated by immigration judges. All non-citizens who are removable are subject to these proceedings, regardless of whether they have "made an 'entry' into the U.S." or not.
• Notice to appear: Removal proceedings are now initiated with a notice to appear (NTA) that specifies the nature of the proceedings, the legal authority under which they are conducted, the alleged violations of law, and the charges against the non-citizen.
• Authority of immigration judges: IIRAIRA established the authority of immigration judges in removal proceedings, including the ability to administer oaths, receive evidence, interrogate witnesses, and issue subpoenas.
• Right to counsel: Non-citizens have the privilege of being represented by counsel of their choosing in immigration court, but the government is not required to provide legal representation if they cannot afford an attorney.
• Removal period: IIRAIRA established a removal period of 90 days for non-citizens determined to be removable. The removal period can begin when the order of removal becomes administratively final, on the date of the court's final order, or when the non-citizen is released from detention.
• Cancellation of removal: IIRAIRA restricted access to cancellation of removal, a form of relief from deportation. It increased the continuous physical presence requirement from seven years to ten years and added a requirement to demonstrate that removal would lead to "exceptional and extremely unusual hardship" for the individual's spouse, parent, or child who is a US citizen or legal permanent resident.
• Expedited removal: Immigration officials gained the authority to summarily remove certain non-citizens without a hearing or judicial review. This includes non-citizens who lack valid entry documents, have sought admission through fraud, or have been in the country for less than two years without being inspected and admitted.
• Stipulated removal: This is a type of plea agreement for non-citizens convicted of crimes in criminal court. A stipulated removal order makes a judicial order of removal a condition of the plea agreement.
• Reinstatement of removal: This process concerns the re-entry of undocumented immigrants who previously left through voluntary departure or who were previously issued removal orders. The prior order of removal is reinstated and the immigrant is ineligible for relief from removal.
• Detention: IIRAIRA expanded the authority of the Attorney General to detain non-citizens facing removal and did not impose limitations on the length of detention. It also restricted access to release from detention, requiring a bond of at least $1,500 or conditional parole.
• Bars to re-entry: The act established various bars to re-entry for non-citizens, including a 3-year bar for those who overstayed their visas by 180-365 days, a 10-year bar for those who overstayed by more than 365 days, and a 20-year bar for those who gained admission after the 10-year bar and were subsequently deported.
• Lifetime bar to re-entry: Any non-citizen who was deported due to criminal convictions of aggravated felonies faces a lifetime bar to re-entry.
• 287(g) program: This program allows state and local law enforcement agencies to enter into agreements with Immigration and Customs Enforcement, deputizing certain agents to gain immigration enforcement authority.
• Border enforcement: IIRAIRA gave the Attorney General broad authority to construct barriers along the Mexico-US border and authorized the construction of a secondary layer of border fencing. It also increased funding for multilayered fencing, technology, and personnel for the Border Patrol.
• Higher education restrictions: The act expanded restrictions on federally distributed post-secondary education funds, denying federal funding to most groups of non-citizens. It also applied these restrictions to state-level funding decisions, prohibiting states from making undocumented immigrants eligible for post-secondary education benefits unless all citizens and nationals are also eligible.
• Voting restrictions: IIRAIRA made it a criminal offense for a non-citizen to vote in a federal election, with some exceptions for those who resided in the US as non-citizen nationals or permanent residents under the age of 16 with US citizen parents.

Impact of IIRAIRA

According to data from the Pew Research Center, while there has been a noticeable increase in annual deportations since the policy was enacted, overall illegal immigration has increased. The act has also been criticized for imposing overwhelming hurdles on refugees seeking asylum, such as mandatory detention and application deadlines, which are argued to undermine the US's obligations under the 1967 Refugee Convention Protocols. Additionally, a 2018 paper found that the act reduced the health and mental health outcomes of Latin American undocumented immigrants by escalating their fear of deportation.

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