Is Immigration Law Civil or Criminal?

Immigration law in the United States is civil, not criminal. People found to be in violation of immigration law are not punished; they are deported. And, deportation is not punishment.

In the United States, we often refer to people who are in the United States without permission from the government as “illegal aliens.” Calling people “illegals” gives the false impression that they have committed a crime. However, being in the United States without documentation is not a crime. It is a violation of immigration laws, and there is no punishment for illegal presence.

The reason deportation is not punishment is that an 1893 Court decision, Fong Yue Ting vs. United States, still holds. That court decision reads as follows:

[Deportation] is simply the ascertainment, by appropriate and lawful means, of the fact whether the conditions exist upon which Congress has enacted that an alien of this class may remain within the country. The order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions … which the Government of the nation … has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty, or property without due process of law, and the provisions of the Constitution securing the right of trial by jury and prohibiting unreasonable searches and seizures and cruel and unusual punishments have no application.

According to this decision, which still holds in court today, deportation is an administrative procedure which ensures that people abide by the terms of their visas. When they do not, they face the possibility of being returned to their countries of origin.

The 1893 Fong Yue Ting decision continues to prevail today even though, when that decision was made, deportation looked very different. At that time, the statute of limitations on deportation meant that after a year in the United States people were no longer subject to deportation. In addition, there was no interior enforcement of immigration laws, meaning that deportation nearly always applied to people arriving in the United States, not to long-term residents. Today, however, the situation is quite distinct, with no statute of limitations on deportations, and the frequent removal of long-term residents of the United States.

The rationale behind this decision is that immigration is a matter of national security and sovereignty and thus remains in the domain of the Executive and Legislative Branches.

Immigration is a matter of national security when we think of who the United States allows to enter the country. And, in 1893, the Fong Yue Ting decision applied nearly exclusively at the border, as there was no interior enforcement of immigration laws. Yet, today, increasing numbers of immigrants are removed from their homes in the United States. In addition, deportation has become an extension of the criminal justice system, especially with the merging of criminal and immigration law enforcement we have seen in the aftermath of September 11, 2001.

Thus we have a situation where we are relying on a doctrine based on national security to tear long-term residents of the United States from their homes, families, and communities. In addition, deportation is becoming a collateral consequence of criminal convictions that is meted out only to non-citizens and without the due process protections provided in the criminal justice system.

Immigration law is civil, not criminal, and this fact brings with it severe consequences for immigrants. As immigration proceedings are not criminal proceedings, people facing deportation are not granted the due process protections we see in criminal proceedings.