Almost Half of Undocumented Came to U.S. Legally

by

From the Arizona Republic:

Not every illegal immigrant in the United States snuck across the border. A very large number, perhaps as many as 5.5 million, entered legally with visas and then never left…

My preliminary suspicions on the pre-emption issues that SB1070 will encounter hinge, in part, on the large number of unauthorized immigrants who did not, like the vitriolic ALIPAC/Pearce/Arpaio types declare so often, come here “illegally”. The visa overstays did not “break” into our country.  Let’s briefly look at the “trespass” provision of SB1070 and see if it covers this significant chunk of the undocumented population.

Under the “trespassing” provision, any alien physically in Arizona who violates 8 U.S.C. 1304(e) or 1306(a) is guilty of a misdemeanor. The two sections follow below, respectively:

Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d). Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.

Any alien required to apply for registration and to be fingerprinted in the United States who willfully fails or refuses to make such application or to be fingerprinted, and any parent or legal guardian required to apply for the registration of any alien who willfully fails or refuses to file application for the registration of such alien shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000 or be imprisoned not more than six months, or both.

SB107o’s criminal provision of “trespassing” , it would appear, does not pertain to visa overstays  if the individual has adhered to the requirements of 1304(e) and 1306(a). Nonetheless, if a visa overstay individual is apprehended, a local officer would have reason to believe that the person is not authorized to be in the United States. It is not unreasonable to assume that some officers will not make the distinction between the very specific requirements of 1304(e) and 1306(a) and end up detaining the non-criminal visa overstays.

Another issue is how long it will take for the local police to obtain factual confirmations from ICE. In other words, how long will local police detain an individual who turns out to have only violated a civil provision of the federal immigration laws.

The other glaring inconsistency of SB1070, as it conflicts with federal enforcement prerogatives, is how it creates an unflinching blanket of criminalizing individuals who, if handled by ICE, would be charged solely through the civil process of a removal hearing.

If ICE criminally prosecuted each and every individual who is apprehended, their stated mission of immigration enforcement would be severely undermined; they would have to spend an inordinate amount of time bringing criminal charges(which entails providing counsel, following more procedural due process) rather than focusing on removal of the individuals at hand and the apprehension of future immigrants. And, please, do not state that, “well, Arizona is going to take care of the criminal charges”; it will still create a massive backlog and subsequent stress on ICE’s logistical capability.

Point being: even with a limited peek into the potential conflict consequences between SB1070 and current federal immigration law reveals that it is highly vulnerable to legal challenge and, even if it does not get struck down, it will throw the proverbial wrench into ICE’s abilities nationwide. Is that such a bad thing?

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25 Responses to “Almost Half of Undocumented Came to U.S. Legally”

  1. Tweets that mention New Blog Post: potential legal problems of #SB1070 in #Arizona -- Topsy.com Says:

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  2. Dan Coleman Says:

    The issue of illegality isn’t resolved simple because someone came here legally. Such person, when not leaving after visa time is up, is at that time illegal by default, and subject to expulsion.

    What we have here, in this on-going controversy, is not a rational argument based on differing views of the law, but one based on opposing values. One side doesn’t give a rat’s ass about the law involved, it just wants what it wants, that being here for all their cousins to come across the border carte blanche. If there’s any racism, it’s on their part, their being so ethnocentric.

    We’ve always been a nation of immigrants. It’s who we are and should continue to be. The constant infusion of new blood is what keeps our edge sharp. When we’re complacent, the immigrant, with his example, serves us by reminding us what we are and why we’re accomplished so much in our brief history. But it’s the INDIVIDUAL

  3. Dan Coleman Says:

    …the INDIVIDUAL for whom this nation was founded. Our world here revolves around the PERSON, not the group, the herd, the mob. The people invading our southern border now are herd oriented, not individualistic people, for the most part. Only the ones who come here alone or with their immediate families are good candidates for citizenship. Like those who came here after WWII, or risked their lives crossing the Berlin Wall, or fled Cuba. These are people who share our common values INDIVIDUALISM

  4. Dan Coleman Says:

    The issue of illegality isn’t resolved simple because someone came here legally. Such person, when not leaving after visa time is up, is at that time illegal by default, and subject to expulsion.

    What we have here, in this on-going controversy, is not a rational argument based on differing views of the law, but one based on opposing values. One side doesn’t give a rat’s ass about the law involved, it just wants what it wants, that being here for all their cousins to come across the border carte blanche. If there’s any racism, it’s on their part, their being so ethnocentric.

    We’ve always been a nation of immigrants. It’s who we are and should continue to be. The constant infusion of new blood is what keeps our edge sharp. When we’re complacent, the immigrant, with his example, serves to remind us what we are and why we’ve accomplished so much in our brief history. But it’s the INDIVIDUALISM, the SELF-SUFFICIENCY, that makes immigrants, historically, of the most successful Americans. And the more successful we are, the more we can help others become self-sufficient, as well.

    But what we have here is a problem of a herd-oriented group of people insistent on our being their welfare provider. We cannot be the Social Services Department for the entire world, nor for a part of it. And this herd invading us now is not a productive group, but a blood-sucking parasite with a gimme attitude and a fuck you mentality.

    Bring on the person, leave the group at home.

    • bjohns15 Says:

      You wrote:

      “but what we have here is a problem of a herd-oriented group of people insistent on our being their welfare provider. We cannot be the Social Services Department for the entire world, nor for a part of it…And this herd invading us now is not a productive group, but a blood-sucking parasite with a gimme attitude and a fuck you mentality.”

      That’s bullshit; from my personal observation, most of this purported “herd”, and i stress “purported”, is very productive and are not “parasites” on our society. If you want to comment on this blog, you shall do so in a manner that is not dehumanizng.

      • Liquid Reigns Says:

        from my personal observation
        *Limited* personal observation is more like it.

        As Hanson from the Migration Policy Institute states: most of the economic output that illegal immigration generates accrues to the immigrants themselves.

      • bjohns15 Says:

        There is no need to qualify “personal observation” with “limited personal observation”. By virtue of the fact that I said “personal”, it implies that it is limited.

        And there is a big difference between saying that the immigrant accrues benefits unto themselves and saying that they are a “parasite” on society.

      • Liquid Reigns Says:

        If you read the report, Hanson shows that they are an overall burden to Society, they cost the taxpayer, they don’t pay in enough to cover themselves, therefor they are “parasites” (you used the term) by your definition and that the economic benefit is to the (illegal) immigrant themselves.

  5. bjohns15 Says:

    I did not use the term, originally. My comment was in response to Dan Coleman, who used the term. And that is one report, and there are many other issues that tie in to it, which I do not feel like delving into in the moment.

    Bottom line is that no study is conclusive on the issue, where ever it comes from, and to generalize 11 million plus individuals by calling the “group” a parasite falls under my definition of dehumanization. Thus, what I wrote in my original comment.

  6. bjohns15 Says:

    Also, if there is another reason why the benefit of cheap labor does not go to society it is largely do to the employers, who pay lower wages without concurrently lowering prices. Therefore, they get a windfall profit and keep it to themselves, shucking the costs of their workers onto society.

    • Liquid Reigns Says:

      Your making a good case as to why E-verify should be implemented across the board, why we need to go after employers who pay in cash or underpay due to exploitation, and why we argue for a living wage for Americans which would reduce unemployment and actually increase the taxes taken in, both locally and federally.

  7. bjohns15 Says:

    But for e-verify to work, there has to be a comprehensive scheme attempted, where there are a minimum amount of undocumented within the states.

    That will not happen unless a realistic solution, outside of either A: attrition through enforcement or b)legalization on its own. In other words, as we have discussed before, there has to be an efficient guest-worker/option for permanent residence and a legalization, and perhaps more border enforcement, although that is not going to be possible as long as the drug trade is not addressed, which is probably not going to happen.

    But given the obviously politically entrenched take on Immigration(dems not doing anything(schumer’s program is crap) while uttering soothing words and the republicans capitalizing on the emotion that runs through immigration but also not doing anything to seriously address the issue(attrittion through enforcement is, if anything, a temporary attempt at a fix.)

    Either way, the forecast is ugly. Maybe you should trailblaze, Liquid, as you are about the only one on your side that would consider a guest worker with permanent resident option. FAIR, the big guys behind the attrittion through enforcement movement, would absolutely call you a traitor for even considering the idea.

    • Liquid Reigns Says:

      In other words, as we have discussed before, there has to be an efficient guest-worker/option for permanent residence and a legalization, and perhaps more border enforcement,

      You are calling the Schumer Bill crap, yet Rep Guiterez is pushing it, and it has everything in it you ascribe to, LPI status (guest worker), eventually LPR status.

      Are you going to then be against the Dems bills?

  8. cookie Says:

    We already have several guest worker programs and our immigrant quotas are already based partially on our needs for foreign workers so what would be the point of changing that? What would be the point in increasing our quotas with more guest worker programs if we don’t need them? What is the point of legalizing millions who violated our immigration laws if we don’t need them? Just because they are here is not a good reason.

    There are many things we can do to deter more illegal immigration and to encourage those already here to leave. I think you have heard them all before and they are the only things that make sense and that are in the best interests of this country and its citizens.

    If we find in the future that we need more legal immigrants, why just Mexicans or other Latinos? There is a whole world of potential immigrants out there. Afterall, we are supposed to be about diversity, right? Or am I smelling quite another agenda from the mostly Hispanic pro-illegal side?

    • bjohns15 Says:

      Ah, there is no conspiracy theory, cookie!

      • Liquid Reigns Says:

        Mexico is the second largest to enter on immigration visas in the USA, behind only China. If you ad in Latin America to Mexico’s numbers, then Hispanic? Latinos are the largest to enter on immigration visas, no Conspiracy theory at all, simple facts.

      • bjohns15 Says:

        Does the schumer bill have an option for new workers to adjust? If so, please send me the link.

  9. bjohns15 Says:

    The conspiracy is that I and other people that agree with me have a “hispanic” agenda. It’s not insidious; it’s a reflection of many realities.

  10. bjohns15 Says:

    Never mind, I found it. “this proposal also creates a provisional visa (H-2C) for non-seasonal, non-agricultural workers to enter the United States. The visa shall be for three years, and is renewable once for a
    AILA InfoNet Doc. No. 10042963. (Posted 4/29/10).
    total of six years. Workers in the H-2C program shall be permitted to earn lawful permanent residence if they meet sufficient integration metrics to demonstrate that they have successfully become part of the American economy and society. The provisional visa will be a dual intent visa so there is not a problem with intending immigrants.”

    On the whole, this is a good start, but given the heavy focus on enforcement compared to this H-2C visa, I’m not optimistic about this bill.

  11. cookie Says:

    Why would we need such a visa? Why do we need to retain illegal workers or open another avenue for immigrants to come here when we have so many unemployed Americans?

    • bjohns15 Says:

      Your ire is directed disproportionately. I would wager that most unemployed Americans are not that way due to immigrants; it is due to the many corporations who couldn’t care less about the American people.

  12. bjohns15 Says:

    If you are going to make such damning assertions, you better back it up with hard facts. In the meantime, your comment is deleted.

  13. cookie Says:

    No of course Americans aren’t unemployed because of “immigrants” but many of them have become unemployed due to the huge supply of cheap illegal alien labor. Learn to separate legal from ilegal, ok?

    You know darn well that is the truth, Bryan. Way before business started to downsize, outsource and the economy went bad, illegal aliens had already been replacing Americans in our workforce. Why are you not sickened by that?

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