A question of Civil v. Criminal Jurisprudence
If entering the United States without the permission of our government is illegal, why is it not a crime? The simple answer: the federal government treats all immigration matters under civil law except when it treats immigration matters under criminal law.
As teenagers say, “It’s complicated.” Ask a lawyer and the answer will be, “It all depends.”
Civil law is the body of laws of a state or nation regulating ordinary private matters, as distinct from laws regulating criminal, political, or military matters.1
It is a body of rules that delineate private rights and remedies, and govern disputes between individuals in such areas as contracts, property, and Family Law; distinct from criminal or public law. Civil law systems, which trace their roots to ancient Rome, are governed by doctrines developed and compiled by legal scholars. Legislators and administrators in civil law countries use these doctrines to fashion a code by which all legal controversies are decided.2
Criminal law is a body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts.3
Criminal Law, as distinguished from civil law, is a system of laws concerned with [the] punishment of individuals who commit crimes. Thus, where, in a civil case, two individuals dispute their rights, a criminal prosecution involves the people as a whole deciding whether to punish an individual for his conduct or lack of conduct (i.e. omission). Just as the people decide what conduct to punish, so the people decide what punishment is appropriate. Accordingly, punishments vary with the severity of the offense—from a simple fine (e.g. for a traffic violation) to loss of freedom (e.g. for murder).4
The Burden of Proof – The burden of proof in civil litigation is lower for plaintiffs than the burden of proof is for prosecutors in a criminal case. A prosecutor has to prove a case against a defendant beyond a reasonable doubt. In a civil case, the standard is much lower.5
The Complexity of Law – Illegal aliens are “Any alien who enters or attempts to enter the United States at any time or place other than as designated by immigration officers“6 Illegal aliens are subject to both civil and criminal prosecutions.
The U.S. Constitution does not specifically address immigration. Therefore, throughout the early years of our republic, the states passed various and sundry laws that regulated immigration. In 1941, in the Hines v. Davidowitz, 312 U.S. 52 (1941) case, the Court found that Congress intended to completely occupy the immigration field with one all-embracing system. There, the Court held that the States lacked the authority to complement or to enforce additional regulations related to alien registration.8
Article I, Section 8 stipulates, “The Congress shall have Power … To establish an uniform Rule of Naturalization…“7
Because DACA fits nowhere within the definition of ‘uniform’ law, it is unconstitutional and contributes to the massive and complex backlog in the immigration courts.
DACA was created by the Barack Obama administration and is not a law passed by Congress. President Barack Obama had no authority whatsoever to make law, as per the Supremacy Clause in Article VI of the Constitution. President Donald Trump recognized the unconstitutionality of DACA and reversed the Obama executive order, giving Congress until March of 2018 to craft appropriate immigration law. Adding to the confusion, a federal judge, a Clinton appointee, in San Francisco, blocked this president and unconstitutionally declared DACA shall continue.8
A volatile conglomeration of unconstitutional decrees by Obama, unconstitutional rulings by federal district judges, and an extremist Democrat bloc of lawmakers hell-bent on defeating any and all initiatives of President Trump make for a perfect Constitutional crisis ‘perfect storm’.
Meanwhile, so-called DACA ‘dreamers’ and Democrat sympathizers take to the streets with angry fists aloft, demanding to be legalized using profane, uncivil language. Personally, I have no sympathy for people who demand anything from me. No doubt most of my fellow Americans think this way, also.
Apparently, no one, not even Democrat voters, can bring common sense order to the leftist congressional Democrat delegation. Therefore, the Republican Party bears the burden of providing high-quality candidates to replace the obstructionist Democrats in Congress.
Back to the question in the title: is illegal immigration a civil or criminal matter? The answer is yes, both. It should be one or the other, but it’s not. This is a problem only the lawmakers in Congress can solve.
If Republicans can hold the majority and add to it, a uniform immigration policy can be crafted. If not, the Democrat extremists will continue to erode the rule of law as the United States of America dissolves into a third-world morass of corruption and loss of liberty.
May God have mercy on America.