We are pleased to present a guest editorial by the distinguished retired jurist John Wilson
The Mayor of Oakland, California, Libby Schaaf, outraged many when she recently warned those living in Oakland that ICE was planning an enforcement action “within the next 24 hours.” In issuing this warning, Mayor Schaaf acted in defiance of an Executive Order issued by President Trump on January 25, 2017, which empowers the “Attorney General (to) take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”
However, enforcement of the President’s Executive Order was blocked by a District Judge of the Northern District of California in November of 2017. Justice William Orrick, an Obama appointee, ruled that the directive was “unconstitutional on its face” since the Order blocked federal funding of sanctuary cities.
Mayor Schaaf’s actions are consistent with the wishes of the City of Oakland, which declared itself a sanctuary city by a unanimous Resolution issued on November 29, 2016. In that document, the City Council stated that they reaffirm “the declaration that Oakland is a City of Refuge for immigrants from all countries,” and that “the Oakland City Council opposes immigration raids.”
In attempting to understand the legality of Oakland’s actions, it is important to note that in its Resolution, the City Council specifically stated that “members of the Oakland Police Department, shall not enforce Federal civil immigration laws and shall not use city monies, resources or personnel to investigate, question, detect or apprehend persons whose only violation is or may be a civil violation of immigration law.” Further, “the Oakland Police Department will continue to cooperate with Federal immigration agencies in matters involving criminal activity and the protection of public safety.”
I have highlighted the words “civil” and “criminal” to emphasize a distinction made by the Oakland City Council. Clearly, the Council has drawn a distinction between the enforcement of “civil violations” of the immigration law, and protecting the public from “criminal activity.”
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Part of the answer is actually very simple – it is not a criminal act to be in this country unlawfully. However, whether Oakland’s Resolution is legal, is not as simple to answer.
8 USC Sec. 1325 describes the crime of “improper entry” into the United States. This is a federal misdemeanor, punishable by no more than 6 months of incarceration, and a fine of no more than $250. Thus, an individual actually caught entering the country illegally, such as a person observed jumping over a border wall, would be committing a misdemeanor.
However, not every illegal immigrant entered the United States illegally. Some have overstayed their visas, or become ineligible for continued residence. 8 USC Sec. 1227 outlines the various classes of deportable and inadmissible aliens. These include those convicted of various crimes, those who made fraudulent statements on their applications, and those involved in terrorism-related activities.
8 USC Sec. 1229 describes the penalty for being one of the classes of persons described in 8 USC Sec. 1227 – deportation after removal proceedings. But deportation is not, and I repeat this, NOT a criminal penalty – it is a CIVIL penalty. Thus, to put this as clearly as possible, it is a crime to enter the country illegally – but it is a civil wrong to be present in the country without proper documentation.
Truly, these are distinctions only a lawyer could love. But if we are to understand just what those who claim to be a sanctuary city are espousing, we must understand this hair-splitting difference.
The Report Concludes Tomorrow.