illegal immigration is not a crime

So says Rudy Giuliani, on the Glenn Beck radio show:

GIULIANI: Glenn, it's not a crime. I know that's very hard for people to understand, but it's not a federal crime.

GLENN: It's a misdemeanor but if you've been nailed, it is a crime. If you've been nailed, ship back and come back, it is a crime.

GIULIANI: Glenn, being an illegal immigrant, the 400,000 were not prosecuted for crimes by the federal government, nor could they be. I was U.S. attorney in the southern district of New York. So believe me, I know this. In fact, when you throw an immigrant out of the country, it's not a criminal proceeding. It's a civil proceeding.

GLENN: Is it --

GIULIANI: One of the things that congress wanted to do a year ago is to make it a crime, which indicates that it isn't.

GLENN: Should it be?

GIULIANI: Should it be? No, it shouldn't be because the government wouldn't be able to prosecute it. We couldn't prosecute 12 million people. We have only 2 million people in jail right now for all the crimes that are committed in the country, 2.5 million. If you were to make it a crime, you would have to take the resources of the criminal justice system and increase it by about 6. In other words, you'd have to take all the 800,000 police, and who knows how many police we would have to have.

and also Tom Tancredo, in an Op-Ed for USA Today:

Right now, illegal presence in the USA is not a crime; it is a civil infraction. The House Judiciary Committee voted to make it a felony but then was counseled that millions of new felons could clog our courts.

Chairman James Sensenbrenner, R-Wis., wrote an amendment to his own bill asking that the penalty be reduced from a felony to a misdemeanor; 191 Democrats and a few Republicans voted to keep the felony penalty in the hope that it would be a poison pill to defeat the measure.

Several have disagreed with the assertion based on USC, Title 8, Section 1325, which states:

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.

However, there is an important clarification to this, namely that illegal presence is not a crime, only illegal entry. There was a superb discussion (for once) about this at RedState, which included the following comment:

The Law by AndrewHyman (#11)

People who immigrate legally but then overstay the term of valid legal visas are unlawfully present. That does not make them criminals.

However, people who immigrate illegally (e.g. by sneaking across from Canada or Mexico without any kind of visa or other authorization) are criminals under 8 USC 1325.

The distinction is important because for prosecution under Section 1325 there must be proof of illegal entry. However, many illegal immigrants have simply overstayed a legal visa.

Rudy's point about legal resources is also a critical one that far too many reflexively anti-immigration folks do the rule of law a grave disservice by brushing aside. In point of fact, legal resources are as subject to triage concerns as any other resource. If identifying the immigration entry method of 12 million laborers, and then initiating prosecution proceedings against the (presumably large) fraction of that 12 million under Section 1425, is a high priority for you then that's your right to advocate for. However, it will come with reduced prosecutions for almost every other federal crime, an increase in taxes at every level of government, or both. Keep in mind that the total number of federal prosecutions in the 12 largest districts combined is projected to be 61,000 this year. Also keep in mind that drug prosecutions are still projected to be 46% of the total, up from 41% last year.

And it bears mentioning that these 12 million people are doing essential labor, which non-immigrants simply will not do. Case in point: the fruit and vegetable harvests in North Carolina and California.

The farms that supply Nash Produce were among many across the state that couldn't find enough workers last fall, and farmers say the problem could escalate this year. Enforcement raids have increased the cost to immigrants of sneaking over the border and discouraged many illegal immigrants from coming.

Some worry that North Carolina will end up like California, where portions of last fall's crops rotted in the fields and ripe fruit fell from the trees because workers didn't come to pick them.

This year, contractors are predicting that labor will be tight again, said Joyner, president of a cooperative of about a dozen growers, which includes Leggett. He said his farmers are so worried that they refused to plant all the cucumbers he could have sold this year.
[...]
"Americans today don't want to sweat and get their hands dirty," said Doug Torn, who owns a wholesale nursery in Guilford County. "We have a choice. Do we want to import our food or do we want to import our labor?"

With the holiday season ahead, it's worth noting that Christmas trees also are subject to the same labor issues.

The bottom line is simply this: if you are against illegal immigrants on the basis of the rule of law, then that same rule of law demands that every single one of those 12 million immigrants get complete due process. And given that the vast majority of those 12 million people are doing essential and honest work that native born Americans won't do, it's a ludicrous waste of resources to do so. Even if 100% of all federal prosecutions today were devoted to this, it would still only amount to 0.5%. And even if we somehow were to manage to deport all 12 million, they would be here the very next day, given that we have no meaningful way to police and control all 1,952 miles of border between the United States and Mexico.

So what is the solution here? Well, that will be addressed more fully in my next post (and shaped in part by the debate here). But suffice to say for now as a hint that the present system is indeed unsustainable and harmful - but not for the reasons that the anti-immigration crowd thinks.