District Judge rules an illegal alien has the right to possess firearms

[HCM]

Isn't an illegal alien a criminal because they entered the US illegally, and also because they remain here? (As opposed to non-citizens here on a visa or green card).

Illegal entry is a misdemeanor but it’s not a continuing offense. After that being present without lawful admission is a civil / administrative issue.

In civil / administrative removal proceedings people who entered illegally have the burden of proof to prove why they should stay in the US. Whereas with someone who has been legally admitted as either an immigrant / legal permanent resident or as a non-immigrant visa holder who overstays or violates their status the burden of proof is on the Government to prove why they should be removed.

Illegal re-entry after a formal deportation/ removal is a both a felony and a continuing offense as the statute includes illegally re-entering, remaining in / being found in the U.S. after deportation /removal. Depending on the individuals criminal history, it is punishable by up to either two, 10, or 20 years imprisonment. This is the most commonly prosecuted federal felony making up over 50% of all felony cases in the federal court system. In practice nearly all of those defendants will have some criminal history in the United States.

https://trac.syr.edu/tracreports/bul...thlydec23/fil/

[HCM]

That I'm not certain of, but I suspect the answer is more nuanced than you'd think.

Many who are here illegally initially entered the United States by legal means (work permits, visas etc) and simply overstayed the time-frame and are now illegally here, but the typical proceeding is not criminal, but civil, if deportation proceedings are to be initiated.

Others may have crossed the border illegally as children, but being children, are not the ones "guilty of the crime" so to speak, and prosecuting an 8 year old for the crime of following their dad across a border is hardly fair, given they were not the head of the household, and deporting them at age 30 would be to send them back to a country that is realistically, no longer their home.

But they still committed a crime by crossing a border? I am uncertain if that is also managed by civil proceedings or criminal ones, and typically (though I'm not sure about now) they can apply for Deferred Action for Childhood Arrivals (DACA) to obtain a temporary permit to work and study in the US that protects them from deportation. While these immigrants typically pay into social security, medicare etc by way of payroll taxes and filling out a W2, and I believe are counted for the purpose of census, they typically are granted no federal rights or privileges (FAFSA, Social Security, voting, firearms ownership etc) with the understanding that if they ever leave the country, they will not be allowed back in except in special circumstances.

What's more, some of these DACA recipients may have originally entered the country legally and overstayed a visa or have left and re-entered legally under one of those special circumstances mentioned above and now have a "legal entry" to the US on their immigration record and so the crossing of the border they did in elementary school seems even less of a crime now because they have legally entered the country? And because of that "legal entry" now any presence (by way of DACA) is legal.

As far as criminality in general...you are more likely to be the victim of someone born in the US than you are by an immigrant...even one here illegally...so the notion that it's just a bunch of violent, rabid animals at the border is likely a political fabrication.

It’s really not nuanced and DACA is not relevant to criminal immigration violations.

Putting aside various forms of fraud such as obtaining genuine documents by fraud, being an impostor to a travel document, or use of counterfeit documents, etc..

Illegal or improper entry by an alien is a misdemeanor under title eight US code section 1325. However, it is not a continuing offense. If they are not apprehended out or near the border, it becomes a civil / administrative matter.

Going back to DACA, DACA is not a lawful immigration status. Is just an application of an existing legal provision in the immigration and nationality act called “deferred action.” It is literally just a formal promise by the government to not take immigration enforcement action against the alien for a period of time if the alien complies with certain conditions.

Under DACA, DACA recipients usually also receive an employment authorization document which allows them to legally work in the United States to avoid them becoming “a public charge.”

However, an illegal alien granted DACA otherwise remains an illegal alien. This is true regardless of whether they entered illegally, or they initially entered legally then overstayed or otherwise violated the terms of their admission.

There is case law specific to 18 USC 922(g)(5) (illegal alien in possession of firearm or ammunition) in which DACA recipients were prosecuted for possession of firearms ammunition.

Regarding international travel by DACA recipients. In order to travel internationally and return to the United States DACA recipients have to obtain a form of travel permit called in advance parole letter.

DACA recipients can only travel abroad for education, employment, or humanitarian purposes such as seeking medical treatment, visiting an ailing relative, or attending funeral services for a family member.

Parole into the United States is a legal mechanism, but it does not constitute a legal admission to the United States.

In most applications, persons are paroled into the United States for public benefits, such as witnesses or criminal prosecution, or for humanitarian reasons such as for medical treatment. Essentially parole is a mechanism that allows them to physically enter the United States while legally they are considered stopped at the border.

Advance parole letters are a sort of loophole or workaround that allows people who could not otherwise leave the US and get back in to duck out and come back as if their departure never happened.

Regarding aliens, illegal, or otherwise and criminality. In general aliens are a bell curve like everybody else.

There are two factors that affect your likelihood of being the victim of a crime perpetrated by an alien. The first is location. In some states and in the federal system aliens make up 30 to 40% of the prison population. In other states, they’re around 10%.

The other factor is demographics. Up until recently illegal immigrants tended to be overwhelmingly, young and male. Those numbers have changed a bit, but young males are still the majority of illegal immigrants.

Young males, regardless of ethnicity or immigration status, or the group who commit the most crimes, particularly violent crimes.

Any group of young single males living on their own, away from their usual social structures and restrictions have high incidence of crime / trouble. As Rudyard Kipling said young men in barracks do not live the lives of plaster Saints.

[TGS]

The RKBA for non citizens? In my opinion, defense of one's life and property is a human right. I would think an immigrant has the right to be alive as much as anyone else and therefore has the right to attempt the preservation of their life by the most effective means possible. If the preservation of their life is fighting back against a tyrannical government and leading insurrection, perhaps that is an indictment of a society which would seek to deny them human rights....

If a woman here illegally was being raped, and bashed the rapists head in with a rock, would her legal justification be adjudicated by the laws of her home country? Or would it be an American court which would determine the justifiability of her actions? This seems straightforward to me.

We abrogate human rights for those outside the societal norms of accepted conduct all the time. Thats how civilizations work. We restrict their movements, jail them, take away their rights to do certain things, make them pay money, take their property, take away their privacy, and even kill them.

This is a republic, not an anarchy.

[HCM]

There is a difference between being an "illegal alien," and an alien "unlawfully present" in the US. The former is a criminal matter, the latter is a civil matter. I don't know much about immigration law, but what little I know includes that distinction.

The legal prohibition on firearms possession (18USC922(g)(5)), applies to both, and accounts for the wording on an ATF Form 4473.

The linked news article doesn't make it .clear which category this person fits.

No. @WobblyPossum is correct. Neither of those is technical / legal term.

Federal immigration law is found in the immigration and nationality act which is codified under title 8 of the US code.

There are criminal violations within the immigration and nationality act. It is usually referred to via the title 8 citation when dealing with criminal and litigation matters and via the immigration and nationality act (INA) citation when dealing with civil / administrative matters such as benefits applications and removal proceedings.

For example, title 8 US code section 1101 and section 101 of the immigration and nationality act, “definitions” are identical.

In that definition section there is a definition of the term “alien” meaning any person who is not a citizen or national of the United States.

Illegal entry by an alien is a misdemeanor under 8 USC 1325 but as discussed, it is not a continuing offense.

On the civil / administrative side, there was a significant change to US immigration laws in 1996.

Prior to 1996, aliens who legally entered the US, but became subject to deportation through violation of their status we’re subject to deportation proceedings and aliens who entered illegally and were found in the US were considered to have “Entered Without Inspection” commonly referred to as EWI, EWIs were subject to deportation proceedings the same as people who had entered legally. For both, the burden was on the government to prove why they should be deported. As opposed to people stopped at the border who are subject to “exclusion proceedings” where the alien had the burden of proof.

In the 1996 revisions to the immigration and nationality act, The distinction between deportation and exclusion was officially replaced with “removal.” The burden of proof for aliens legally admitted to the US who violated their status remained with the government. However, those who entered illegally were now legally considered to be “present without admission” or PWA and “inadmissible” rather than “deportable.” Since PWAs had not been legally admitted to the United States, The burden of proof in their removal proceedings fell to the alien to prove why they were admissible to the United States just like someone stopped at the border.

[DC_P]

No matter what level it is defined as (Felony/Misdemeanor/Civil) it still is intentionally breaking the law by a non-US citizen. Seems like it would be a disqualifier.

[Clusterfrack]

Thanks for all the info @HCM. I've learned a lot.

[45dotACP]

It’s really not nuanced and DACA is not relevant to criminal immigration violations.

Putting aside various forms of fraud such as obtaining genuine documents by fraud, being an impostor to a travel document, or use of counterfeit documents, etc..

Illegal or improper entry by an alien is a misdemeanor under title eight US code section 1325. However, it is not a continuing offense. If they are not apprehended out or near the border, it becomes a civil / administrative matter.

Going back to DACA, DACA is not a lawful immigration status. Is just an application of an existing legal provision in the immigration and nationality act called “deferred action.” It is literally just a formal promise by the government to not take immigration enforcement action against the alien for a period of time if the alien complies with certain conditions.

Under DACA, DACA recipients usually also receive an employment authorization document which allows them to legally work in the United States to avoid them becoming “a public charge.”

However, an illegal alien granted DACA otherwise remains an illegal alien. This is true regardless of whether they entered illegally, or they initially entered legally then overstayed or otherwise violated the terms of their admission.

There is case law specific to 18 USC 922(g)(5) (illegal alien in possession of firearm or ammunition) in which DACA recipients were prosecuted for possession of firearms ammunition.

Regarding international travel by DACA recipients. In order to travel internationally and return to the United States DACA recipients have to obtain a form of travel permit called in advance parole letter.

DACA recipients can only travel abroad for education, employment, or humanitarian purposes such as seeking medical treatment, visiting an ailing relative, or attending funeral services for a family member.

Parole into the United States is a legal mechanism, but it does not constitute a legal admission to the United States.

In most applications, persons are paroled into the United States for public benefits, such as witnesses or criminal prosecution, or for humanitarian reasons such as for medical treatment. Essentially parole is a mechanism that allows them to physically enter the United States while legally they are considered stopped at the border.

Advance parole letters are a sort of loophole or workaround that allows people who could not otherwise leave the US and get back in to duck out and come back as if their departure never happened.

Regarding aliens, illegal, or otherwise and criminality. In general aliens are a bell curve like everybody else.

There are two factors that affect your likelihood of being the victim of a crime perpetrated by an alien. The first is location. In some states and in the federal system aliens make up 30 to 40% of the prison population. In other states, they’re around 10%.

The other factor is demographics. Up until recently illegal immigrants tended to be overwhelmingly, young and male. Those numbers have changed a bit, but young males are still the majority of illegal immigrants.

Young males, regardless of ethnicity or immigration status, or the group who commit the most crimes, particularly violent crimes.

Any group of young single males living on their own, away from their usual social structures and restrictions have high incidence of crime / trouble. As Rudyard Kipling said young men in barracks do not live the lives of plaster Saints.

Thanks for the clarity. Definitely a lot of useful things to know in this post.

I probably still fall on the side of "even those here illegally deserve to protect their lives if they are not otherwise felons, wife beaters, drug dealers, mentally ill or otherwise monstrous people"

The individual residing in Little Village in the original post lives in an area that is notorious for being a rough part of Chicago...not even the 2020 BLM protesters dared to break so much as a window there because of the affiliations of some of its denizens. Whether legal or not, I can certainly sympathize with the feelings of such a man when he feels he probably ought to be armed. It's definitely a "full size gun and spare mag" type of place.

That said...I do not think those here illegally ought to be allowed to serve as law enforcement or military. That does seem a bridge too far.

[Jim Watson]

I can't parse the lawyer lingo and weasel words enough to tell.
Does this decision apply to a mere Natural Born Citizen, too?

[Totem Polar]

Thanks for all the info @HCM. I've learned a lot.

Seconded.

[TGS]

Thanks for the clarity. Definitely a lot of useful things to know in this post.

I probably still fall on the side of "even those here illegally deserve to protect their lives if they are not otherwise felons, wife beaters, drug dealers, mentally ill or otherwise monstrous people"

Sounds good in a vacuum. In reality, you can't make a reasonable assessment if a person isn't one of those people if they're entering the country without inspection.

Not only are all sorts of database checks mandatory for ESTA and visas, but inspection upon arrival catches a surprising amount of people who shouldn't be coming into the country.

This is why we require inspection to enter the country. It seems to me that someone who is purposely avoiding inspection is prima facie evidence they're a security threat to our nation. In fact, US law presupposes this until proven otherwise.

Therein lies my disagreement with this judges opinion.

In short: I think it's ridiculous that a bunch of foreign terrorists smuggled into the US have the right to buy guns to kill us.