OK, kids, let’s go over this once more, only this time, we’ll use smaller words so that slower neurons and even Department of Homeland Security Commandante Napolitano should be able to understand:  Illegal immigration occurs when people who have no authority to cross the borders into the nation - whether on the north from Canada, on the south from Mexico or from the Pacific, Atlantic or Gulf of Mexico coastlines - do so anyway, thereby committing a “crime.”

It is against the law and, contrary to what Ms. Commandante believes, it is, in fact, a crime.  But let us distinguish between whether it really is a crime, as contemplated and declared by the Congress, and whether some prosecutor has the courage to charge the offense as a crime and pursue a conviction.

This refresher course is presented as a public service to counter the PC propaganda being peddled by Napolitano, who recently took the position in a CNN interview with reporter John King that “… crossing the border is not a crime per se. It is civil.”

Really?  Although the statement ”crossing the border is not a crime per se” is, in the context of someone lawfully entering at a designated port of entry, correct, where an alien enters the country in an unlawful manner or at an unauthorized point, it is, in fact, a crime. 

For a lawyer who  served under Bill Clinton as U.S. Attorney for the District of Arizona; who was Arizona Attorney General; who was the Governor of Arizona; and who now purports to “serve” the nation’s security interests as The Chosen One’s head of the Department of Homeland Security, Napolitano appears to be in dire need of a crash refresher course in how to find and read federal statutes.  Or maybe a Cliff’s Notes summary.

While this is a job normally mastered by first-year law students with access to a law library or the Internet, completion of the task seems to have thus far eluded Napolitano.  Probably too many Chosen One cocktail parties still going on. 

First, the United States Code, 8 U.S.C. § 1325 specifically provides that the first time a person crosses the border illegally, he/she can be charged with a misdemeanor (by definition, a crime) and fined and/or imprisoned for up to 6 months.  At the common law, two classes of criminal offenses were recognized, serious crimes or felonies, and minor crimes or misdemeanors.  Yet both were defined as being “crimes.”  See Black’s Law Dictionary, 8th Ed. 2004. 

Indeed, 8 U.S.C. § 1325(b) provides regarding the imposition of “civil penalties” or “fines” that “… [c]ivil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.” 

Translation for Ms. Commandante: even if a “civil” fine is imposed, that does not mean that the illegal entry is magically converted into a civil transgression or that the commission of a crime somehow has been eradicated.  If no criminal proceeding is initiated as a consequence of the illegal entry, all it means is that “prosecutorial discretion” and/or an unwillingness to charge the illegally-entering person with the crime has trumped enforcement of the law.

Second, the United States Code, 8 U.S.C. §  1326 specifies that if the same individual is removed or deported and thereafter again crosses the border unlawfully - and for every subsequent deportation and re-entry - he/she can be fined and charged with a felony and imprisoned for up to 2 years.  And in certain circumstances where the individual who re-enters unlawfully has committed other crimes while here (whoa… imagine that…), additional fines and/or imprisonments of up to twenty years (hello, Commandante Napolitano…. twenty years) are authorized.  But again, if no crime is charged, then no conviction of a crime will be forthcoming.  Rocket science this is not.

The fact that it is not rocket science, however, does nothing to alter the words of these two statutes declaring the illegal entry into the United States to be “crimes.”  And no amount of semantic mumbo jumbo or turning of blind eyes by Ms. Commandante will alter that reality.

So, Napolitano’s “spin” on whether the unlawful entry into the country is a “crime” or only a “civil” offense would be easier to believe if her words tracked the provisions of the statutes that she supposedly is entrusted with protecting.  But they don’t.  Since it is clear that she either (a) has no clue as to what the statutes provide, or (b) doesn’t care what they say, as long as illegal aliens are placed on a “fast track” to citizenship before the 2010 elections, or (c) both of the above, then rest assured, the nation is a good deal less secure than it was before January 20, 2009.

And wait until you hear her arguments for “immigration reform” (aka “amnesty”) in the upcoming months.  Those should be classic.

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