A few days ago, Janet Napolitano of the Department of Homeland Security said "crossing the border is not a crime per se. It is civil." See the link for an excerpt from the U.S. Code and a quote from the National Immigration Law Center showing how wrong she is: sneaking across the border is indeed a crime.

Now, illegal immigration supporters are outrageously misleading about her comments. Seth Hoy of the Immigration Policy Center offers the blog post "Move Over Malkin-ites: Napolitano Gets Immigration Law Right" [1] which is little more than a blog-style snarkfest. Despite accusing "conservative bloggers" of not "understand[ing] immigration law" he doesn't provide any citations showing how he thinks Napolitano could be correct. In lieu of any legal analysis, he links to another misleading post by Joshua Holland of Alternet. Holland admits that a crime is committed when someone evades a border checkpoint (as in sneaking across the border), but tries to pretend that Napolitano was simply referring to illegal presence:

But Napolitano had said that "crossing the border is not a crime per se," and she's 100% correct. She simply understands that around half of the "illegal immigrants" in this country (the exact number varies by study) entered legally and stayed when their visas expired. Being here without papers is a civil violation, not a criminal offense.

Perhaps Holland would then like to explain this 2008 ICE press release:

FT. SMITH, Ark - One hundred and twenty-three illegal aliens were processed here for removal between December 2007 and January 2008 by U.S. Immigration and Customs Enforcement's (ICE's) designated Immigration Criminal Apprehension Taskforce (ICAT) in Northwest Arkansas... Most of the individuals encountered had entered the United States illegally, without inspection, and found themselves in police custody for various legal violations... The taskforce worked with the U. S. District Court for the Western District of Arkansas to prosecute seven individuals for illegally re-entering the United States after being deported and one additional individual for entering the United States without inspection... [an illegal alien] who was charged with one count of entry without inspection...

In other words, their continued presence was a crime for which they were prosecuted. But, we already knew that. So, even if we play magical games and assume that - despite clearly referring to crossing the border not being a crime - she was actually referring to continued presence, Holland and Hoy are still wrong.

UPDATE: Holland has a reply to this post at alternet.org/bloggers/www.alternet.org/138630, and he's still wrong. Someone can in effect be criminally charged with illegal presence, even thought there's no law on the books against illegal presence per se. As pointed out at the last link and as illustrated in the excerpt above, illegal presence can be in effect a crime by charging someone with the crime of crossing the border illegally. The person above wasn't caught at the border and then transported to Arkansas. They were caught in Arkansas and thus their crossing of the border had occured in the past. Note also that as pointed out at the last link, that doesn't apply with those who've just overstayed their visas. In that case, it's just civil.

So, if Napolitano was referring to crossing the border, she was wrong. If she was referring to those who crossed the border illegally, she was wrong. The only way she could be right is in the case of those who came here legally and overstayed their visas. If they want to think that the latter is what she was referring to, then they're living in a fantasy world.

Note also that I'd leave a comment at the link above, except I was banned by Alternet several months ago after spending one too many times pointing out how they were wrong.

[1] immigrationimpact.com/2009/04/23/
move-over-malkin-ites-napolitano-gets-immigration-law-right

[2] alternet.org/blogs/immigration/137733/
napolitano_correctly_characterizes_immigration_law%3B_right-wingers_go_batty