DOJ Concludes Illegal Entrants Can Be Prosecuted Anywhere in the U.S.

June 21 Legal Opinion by the Office of Legal Counsel (OLC)

- OLC issued an opinion on "eluding inspection" under section 275(a)(2) of the Immigration and Nationality Act (INA).

- This allows prosecution wherever illegal aliens are found, potentially causing self-deportation and undermining local sanctuary policies.

- Claims that illegal aliens aren't criminals are challenged by this interpretation.

Section 275 of the INA

- Makes it a crime for an alien to enter the U. S. illegally.

- Penalties include fines or imprisonment up to 6 months for first offenses and up to 2 years for subsequent offenses.

- Most prosecutions occur at the local level; it's commonly charged under section 275(a).

Details on Criminal Charges

- Every illegal entry can lead to potential charges under section 275(a)(1) and (2).

- Paragraph (1) charges are more straightforward; paragraph (2) raises questions about completeness of the offense once an alien eludes inspection.

Section 279 of the INA

- Defines jurisdiction for civil and criminal cases under INA.

- Prosecutions can occur anywhere in the U. S. where a violation may happen or where the person is apprehended.

U. S. v. Wissel Case

- A 1978 case previously stated that offenses under section 275(a)(2) were complete upon illegal crossing.

- This restricted prosecutions to locations where crossings occurred.

New OLC Opinion

- The 1978 opinion lacked independent examination of section 275(a)(2) as a continuing offense.

- The new opinion reversed the previous stance, allowing for prosecution beyond border areas.

- It acknowledges the ongoing duty for aliens to submit to inspection.

Judicial Warrants and Sanctuary Jurisdiction

- Sanctuary jurisdictions claim to comply with ICE but often impose burdensome requirements.

- ICE can obtain judicial warrants for criminal offenses like "eluding examination. ”

- Local ICE offices can now seek warrants from their area federal judges.

- This could change how local police respond to ICE requests.

Impact on Immigration Enforcement

- The opinion implies that illegal entry remains a criminal act until aliens are caught or self-deport.

- Increased prosecutions for section 275(a)(2) offenses expected across the U. S.

- Sanctuary jurisdictions may have to comply with judicial warrants, giving ICE more enforcement power.

- The potential for imprisonment may encourage illegal aliens to self-deport. 

https://cis.org/Arthur/DOJ-Concludes-Illegal-Entrants-Can-Be-Prosecuted-Anywhere-US