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

On June 21, the Office of Legal Counsel (OLC) — DOJ’s wonky law crew — issued an opinion finding that “eluding inspection” under section 275(a)(2) of the Immigration and Nationality Act (INA) is an offense that continues up to the point that an alien is caught. That will allow the department to prosecute offenders wherever they are found — giving illegal aliens another reason to self-deport and potentially undermining local “sanctuary” policies, all while giving the lie to claims that illegal aliens aren’t criminals.

Section 275 of the INA. Section 275(a) of the INA makes it a crime for an alien to enter the United States illegally, and (given that most criminal offenses are prosecuted at the local level), not surprisingly, it’s one of the most commonly charged federal crimes.

It states, in pertinent part:

Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined … or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined … or imprisoned not more than 2 years, or both.

As the foregoing reveals, a first offense under section 275(a) is a class B misdemeanor (carrying a six-month sentence), while subsequent offenses are class E federal felonies.

Every alien who crosses illegally without first going to a port of entry could potentially be charged under paragraph (1) or (2) of section 275(a), but the paragraph (1) charges are much more common because the offense is more straightforward — if an alien “jumps the line”, he or she has committed the crime.

That said, 275(a)(1) crimes aren’t “continuing” offenses. Once the alien is on this side of the border, the crime is complete. The question then is whether offenses under paragraph (2) are complete once aliens elude an officer at the border or the ports, as well.

Section 279 of the INA, the Elusive Wissel Case, and the Sixth Amendment. When the INA was passed in 1952, Congress included, at section 279 of the INA, a provision defining the jurisdiction of the district courts over civil and criminal cases brought by the government under the act.

Saliently, that section now states:

Notwithstanding any other law, such prosecutions or suits may be instituted at any place in the United States at which the violation may occur or at which the person charged with a violation under section [275 or 276 of the INA] may be apprehended. [Emphasis added.]

That’s both broad and specific with respect to jurisdiction.

In 1978, the U.S. District Court for the District of Idaho issued an unpublished opinion in U.S. v. Wissel (which nobody including OLC can locate) that OLC directly thereafter relied upon in an opinion captioned “Immigration and Nationality Act (8 U.S.C. § 1329) — Eluding Inspection — Criminal Offense — Venue”.

In its 1978 opinion, OLC concluded — based on the elusive Wissel decision — that violations under section 275(a)(2) of the INA were complete once an alien crossed illegally, and that therefore prosecutions for such offenses could only be brought before judges with jurisdiction over the place where such crossing occurred.

Prosecutions anywhere else, OLC then found, would run afoul of the Sixth Amendment to the U.S. Constitution, which begins:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. [Emphasis added.]

The New OLC Opinion. One problem with that 1978 opinion is that OLC therein never independently examined whether section 275(a)(2) is a continuing offense — it simply accepted the conclusion of one district court judge in one unpublished decision, and while that may be the law of that case, it’s not precedent.

OLC returned to that question in its latest opinion and reversed itself.

That opinion was prompted by a request sent to the office by the U.S. Attorney’s Office for the Southern District of Illinois, which wanted to lodge section 275(a)(2) eluding charges in the local federal court. You likely don’t need a map to realize southern Illinois is nowhere near the border.

The office first examined dictionary definitions of the verb “elude” from 1952, and court interpretations of the word in different statutes before turning to the protocol Congress created in 1996 for the inspection of aliens seeking admission, now codified in section 235 of the INA.

As I have explained numerous times in the past, prior to 1996, aliens stopped at the ports were treated much differently than those apprehended after skipping the ports and entering illegally.

Pre-1996, aliens deemed inadmissible at the ports were subject to “exclusion” proceedings, during which they bore the burden of showing that they were not inadmissible under any of the grounds of inadmissibility in section 212 of the INA. In those proceedings, they received only the constitutional rights Congress had accorded them.

Aliens who crossed illegally, however, “free from actual and official constraint”, were placed into deportation proceedings under then-section 242 of the INA, in which the government had to prove they were deportable and in which those aliens received a more expansive range of constitutional rights.

In 1996, Congress eliminated that exclusion/deportation dichotomy and created one procedure, “removal hearings”, at which all aliens present here who had not been admitted were deemed, under section 235(a)(1) of the INA, to be “applicants for admission” subject to the same inspection by immigration officers and given the same limited set of rights.

OLC found in its most recent opinion that “the duty for” those applicants for admission “to submit to inspection” under section 235 “is continuing”, and that same inspection must occur “regardless of where the alien is found or where the immigration officer conducts the inspection”.

Consequently, it determined:

It would make no sense to impose a criminal sanction on an alien who “eludes” that necessary inspection at a port of entry while sparing another alien, whom immigration officials are just as responsible for inspecting, of that same sanction merely because he “eludes” his inspection somewhere else.

Reviewing courts, of course, may disagree that eluding inspection under section 275(a)(2) of the INA is an offense that continues up to the point that DHS apprehends an illegal entrant, but as OLC noted, “an additional, prudential reason to rescind” the 1978 opinion was that its “prior recommendation … foreclosed judicial percolation on this question”.

Courts distant from U.S. borders like the U.S. District Court for the Southern District of Illinois might never be called upon to determine whether an alien apprehended by ICE within its jurisdiction can be prosecuted for eluding under section 275(a)(2), even though section 279 of the INA clearly identifies them as a proper venue for such a case.

Now they will.

“Judicial Warrants” and the Sanctuary Jurisdiction Dodge. “Sanctuary jurisdictions” — “cities, counties, and states [that] have laws, ordinances, regulations, resolutions, policies, or other practices that obstruct immigration enforcement and shield criminals from ICE” — often deny that they are sanctuaries at all.

Most instead contend that they are happy to detain and turn criminal aliens over to ICE, but only if the agency complies with some impossible-to-meet requirement — often that ICE provide local officials with “judicial warrants” for those aliens.

As I explained in September 2019, however, there’s no mechanism for ICE to obtain a judicial warrant for civil immigration offenses, because section 236 of the INA permits ICE to issue its own, administrative warrants to take those aliens into its custody.

But ICE can obtain a judicial warrant from a U.S. magistrate or district court judge to take an alien wanted for a criminal offense — such as “eluding examination or inspection by an immigration officer” under section 275(a)(2) of the INA — into its custody.

And under the latest OLC opinion, the local ICE office doesn’t need to turn to a district court in a border district to obtain that warrant — they can just head over to the local federal judge or magistrate.

Politicos in sanctuary jurisdictions may be happy giving ICE the brush-off, but few will tell their cops to ignore a summons issued by an Article III judge — particularly given that Article III judges have contempt powers.

This opinion also undermines contentions often made by illegal-immigration advocates that aliens who came here unlawfully aren’t “criminals” per se because immigration removals are civil, not criminal, proceedings.

The way OLC sees it, aliens who evade inspection at the ports and enter unlawfully continue to criminally evade inspection even when they settle into the interior, at least up to the point that they either turn themselves over to DHS or are caught.

Finally, this opinion gives aliens who entered illegally yet another reason to self-deport, because not only are they now facing civil ICE detention and removal, but federal criminal prosecution, as well. Few things concentrate the mind like the potential of imprisonment.

Expect federal prosecutions to soar now that ICE officers can push for evading charges under section 275(a)(2) of the INA in courts across the United States, including in places far removed from the border. And expect sanctuaries to now be forced to comply with the judicial warrants they’ve long claimed they needed in order to help ICE out.