Types of law: "illegal entry" vs "unlawful presence"

Civics is no longer taught in schools. It should be. People should be aware of the differences between criminal and civil law; and between legislative and administrative law.

Breaking a criminal law means committing a crime, by definition. Crimes can be broken down into felonies (serious crimes such as murder) and misdemeanors (minor crimes such as trespass or drunk driving). Yes, if you break a criminal law, you are a criminal (though many reserve that term for felons; you rarely hear of people convicted of drunk driving referred to as criminals).

Breaking a civil law subjects you to various penalties, of which having to pay a fine is the most common penalty. You can also be compelled to perform a duty. Civil law is what comes into play when you sue somebody. Breaking a civil law does not make you a criminal.

Regarding so-called "illegal immigrants":

Illegal entry is a misdemeanor on a par with attempting to evade customs inspection. It is not a felony. Federal law specifies that illegal entry must be proven, not assumed, and the punishment is "no more than six months of incarceration and up to $250 in civil penalties for each illegal entry."

So "illegal entry" only applies to those who have been proven to have actually crossed the border without going through proper entry procedures. Most of those who are in this country without documentation have not entered illegally; they overstayed valid visas.

Overstaying your visa is considered "unlawful presence" under Federal law. That is a violation of administrative civil law; it is not actually a criminal act, and those who do so are not criminals. "It is a violation of federal immigration law to remain in the country without legal authorization, but this violation is punishable by civil penalties, not criminal." The basic civil penalty for this is indeed deportation, but people "cannot be criminally charged or incarcerated simply for being undocumented".

This is the law of the United States. To say and do otherwise - even if you are the Attorney General or Director of ICE - is to flout those laws.

DACA recipients are not "illegals"

Current rhetoric conflates DACA recipients with those who have come over the border illegally to work as migrant workers, or those who have overstayed their legally-obtained visas. They shouldn't be confused.

Some people seem to think that DACA kids have broken the law. On the contrary. Anybody who is in the federal DACA program is currently legal; they have filed the paperwork, jumped through the hoops. None have criminal records. All have good grades and/or jobs (you don't get into the program otherwise). Their status, right now, is that of a legal resident of the United States.

But they came here illegally, you say. No; they were brought here illegally, but they themselves did not commit a crime. Under the law, you have to have agency - bear responsibility - in order to commit a crime. A minor child has no agency. They are no more responsible for being smuggled into the US than is a Cuban cigar.

Many now on DACA didn't even know they were not US citizens until high school, when it came time to apply to college or get a passport to travel with a school team. By acceptance into DACA, they have shown that they are precisely the sort of upstanding citizens we want in this country.

Oh, but their parents broke the law, you say. Possibly true... but we still have certain legal principles in this country. One is that you don't punish someone for what someone else did.

DACA kids are already in limbo. Yes, they are here legally, but if they are ever less than model citizens - if they even get a speeding ticket - they may lose that legal status. And, of course, the government may unilaterally decide to terminate their legal status. THAT is the current issue.

On licenses and a National ID card

If you are a resident of Washington state, Minnesota, New Mexico, Missouri, or Illinois, you may soon have trouble boarding an airplane. The federal government says that sometime in 2016 they will start enforcing the "Real ID" standard for state driver's licenses; unless your state complies, you may not use your driver's license as ID when boarding a plane.

Right now, only 20 states are fully compliant with Real ID, which was enacted during the fear-frenzy of post-9/11 legislation. Real ID requires that states verify citizenship status when issuing driver's licenses, and issue electronically-readable cards with consistent data formatting so that the data can be easily shared by various state and federal agencies.

According to the NY Times (12/29/2015, pageB4), "a press officer for the Department of Homeland Security said the law's intention was not to create a national identification card but to extend what the agency calls best practices on issuing driver's licenses that apply to all states".  That statement is a lovely bit of crap-filled doublespeak. Let me explain.

A driver's license is, above all else, documentation that a person knows how to drive. Since it is valid in all states, there is a valid reason for national standardization. But that standardization should be focused on driving skills. Yes, it is necessary to show that the holder of the card is indeed the person licensed to drive, and so a driver's license is a de facto identification card. But that is not its primary purpose. Real ID provides no standardization of driving practices; it standardizes identification and makes it easy to share that data.

How is that NOT creating a national identification system? Simply because it is issued by the individual states does not make it less of a federal ID.

We actually HAVE a federal ID card. It's called a passport card, and you can get one for $30 from the Passport Office. The first time you apply, it is $55; processing the paperwork to prove citizenship is the reason for the extra fee for a first-time applicant (why the processing fee for a full passport is $10 more is puzzling, since they are vetting the same information.) I have no problems with a passport card. I have one, and I try to use it whenever I am asked for positive identification. Unfortunately, not many people know what it is. It SHOULD be the highest, most secure form of positive ID we can have. But the Federal government has not particularly pushed its use, and it remains a curiosity.

There are two problems with using driver's licenses for non-driving related ID. First, states are not equipped nor qualified to determine citizenship status of applicants. The brouhaha with Obama's birth certificate shows that. Hawaii does not follow the same conventions in its paperwork as certain other states, so people questioned the validity of the paperwork. It is not reasonable to require each state to be fully conversant with the paperwork conventions of all the other states - or rather, requiring such expertise is an expensive burden to place on the state. And even the Feds don't consider it adequate; a driver's license from a Real ID-compliant state is not sufficient documentation to obtain a passport.

The second problem lies in that data-sharing. How secure is a data pool designed to be read and written to by millions of police officers in 50 states and at least two territories? Not very, and this is the aspect that alarms civil libertarians.

Oh, and there is a third argument - surprise; many people in the US do not drive.  City dwellers, the elderly, people on certain medications or with certain medical conditions. Or people who simply choose not to drive. Since they do not drive, they have no need for a drivers license. Now, states allow the issuance of a non-driver ID card, but they are often hard to obtain (DMV offices tend to be away from places served by public transportation) and expensive. A passport card would be more suitable in those cases, since a passport card can usually be obtained through the Post Office, which is much more likely to be located in an accessible location. Plus, a passport card lasts for ten years; most licenses (or non-driver ID cards) are valid for 5 years or less.

My solution: get a passport card, and use it whenever you can. It will not be accepted in many places, because a) people do not know what it is (but that should change if more people use it),  and b) it doesn't show an address. But that, with any other ID—even a utility bill; remember when that was acceptable ID?—should be sufficient proof of identity and residence that anyone would need. No need to put the burden on the states, and no need to put so much personal information in a non-secure database.