Laws: Cases and Codes : U.S. Code : Title 8 : Section 1325
* United States Code
o TITLE 8 - ALIENS AND NATIONALITY
+ CHAPTER 12 - IMMIGRATION AND NATIONALITY
# SUBCHAPTER II - IMMIGRATION
* PART VIII - GENERAL PENALTY PROVISIONS
U.S. Code as of: 01/03/05
Section 1325. Improper entry by alien
(a) Improper time or place; avoidance of examination or inspection;
misrepresentation and concealment of facts
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 under title 18 or
imprisoned not more than 6 months, or both, and, for a subsequent
commission of any such offense, be fined under title 18, or
imprisoned not more than 2 years, or both.
(b) Improper time or place; civil penalties
Any alien who is apprehended while entering (or attempting to
enter) the United States at a time or place other than as
designated by immigration officers shall be subject to a civil
penalty of -
(1) at least $50 and not more than $250 for each such entry (or
attempted entry); or
(2) twice the amount specified in paragraph (1) in the case of
an alien who has been previously subject to a civil penalty under
this subsection.
http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=8&sec=1325
Ridiculous interpretation of this section by the lawyers/judges. Illegal entry has happened if the illegal alien is IN THE COUNTRY. If a federal crime has been committed, it can be prosecuted. So what if there is no law that specifically states ‘presence in US is a crime’? That doesn’t negate the crimes committed. If someone commits any other federal crime, they need not be caught in the act by federal agents for the crime to be prosecuted.
But the judge is correct, and he cites a 1958 US Supreme Court decision to back it up.
If you look at it, the law is very specific on the terms of the crime. Crossing the border is where the crime occurs, and a person can be punished for that crime. Under the law you cited, simply being here after the commission of that crime does not constitute an additional crime.
The judge makes clear that Section 1326 makes it a felony to remain here, if you cross the border after having been previously deported.
Is it a loophole in the law? Probably. But the judge is correct in his interpretation.