So, about those “illegal immigrants”…
I have been reading the US Code, 8 U.S. Code Subchapter II – IMMIGRATION, looking for the term “illegal immigrant”. The term appears nowhere in the U.S. Code. Indeed, it appears that the U.S. Code goes out of its way to explain that merely being an unauthorized alien in the United States is *not* a crime.
It looks like the motivation for *not* making being an unauthorized alien a crime is that if it were a crime, then the unauthorized alien would have due process rights under the Constitution (which, remember, applies to *all* persons under the jurisdiction of the United States whether citizen or not — we have at least a half dozen Supreme Court decisions on that one). Due process rights would require a hearing in front of a judge. Since it is not a crime, since the unauthorized alien is merely being “removed” or “repatriated” via an administrative action, ICE can simply drive “criminal aliens” (those with felony convictions) right back over the border without judicial review. The felony conviction itself is enough to trigger the removal, without the need for further judicial review, because there is no additional crime called “being here without a visa” that requires due process. Removal is merely an “administrative action”, not a punishment for a crime. If it were a punishment for a crime, it would require a grand jury indictment and a trial with a judge and jury.
Just correcting terminology. The correct terminology, according to the actual law, is “unauthorized alien” or “deportable alien”. The term “illegal immigrant” occurs nowhere in the immigration code. The term “illegal alien” does occur, but is defined by the law to specifically mean unauthorized aliens who have felony convictions, and is defined as such in only two subsections of the entire lengthy immigration law. These are:
All other references refer to them as “unauthorized aliens” or “deportable aliens”.
Note that various publications of the IRS, ICE, etc. use the terms “illegal alien” or “illegal immigrant”. These, however, do not have the force of law, and their definitions are not the legal definition of an unauthorized or deportable alien. They are fundamentally commentary upon the law, and as commentary, they’re not required to abide by strict legal definitions and can use street vernacular. It is unfortunate that the street vernacular implies that the person is committing a crime by being here when the immigration code is quite clear that there is no crime (if there was a crime, due process would require a trial rather than a simple removal proceeding prior to an administrative action), but so it goes.
– Badtux the Terminology Penguin