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Distinguishing Immigration Violations from Criminal Violations: A Discussion Raised by Justice Sonia Sotomayor

In February 2014, United States Supreme Court Justice Sonia Sotomayor was interviewed at Yale Law School. During the course of a wide‐ranging discussion, Justice Sotomayor explained that “her use of the term ‘undocumented immigrants’ rather than the traditional illegal alien” label stemmed from her analysis of “the issue as a regulatory problem” and that she found it insulting to label immigrants as criminals. This discussion would have gone largely unnoticed but for the fact that Fox News contributor and radio commentator Laura Ingraham took Justice Sotomayor to task, “suggesting that she has to choose between her ‘immigrant family background’ or the Constitution.” Indeed, Ms. Ingraham further argued that there is no rule of law in the United States if someone like Justice Sotomayor can pick and choose whether or not to follow certain laws.

Of course, Ms. Ingraham’s criticisms seemed to ignore the fact that Justice Sotomayor is an American citizen of Puerto Rican descent. So not only was she born in the United States, but as the child of Puerto Rican parents, she would also receive automatic American citizenship—a fact that has been true since 1917. One hopes that Ms. Ingraham is aware that people of Puerto Rican descent, including those born on the island, are American citizens. However, what is clear is that she does not appreciate the subtleties underlying immigration status and federal criminal statutes.

Arguably, people who cross into the United States through the Arizona desert or the Rio Grande violate federal criminal law because of their failure to go through immigration inspections. However, unless they were previously removed or deported from the United States, they are likely subject only to petty offense charges that carry a maximum potential penalty of six months incarceration—charges which definitely are not felony charges. As a United States Magistrate Judge for the United States District Court for the Southern District of Texas, I routinely took pleas and sentenced defendants for such charges.

I do not presume to explain Justice Sotomayor’s thoughts on the issue. Moreover, she clearly does not need me to defend her. Still, I appreciate the distinction she was trying to make. After serving for eight years as a United States Magistrate Judge in Corpus Christi, Texas, I am all too familiar with the misnomer, applied to people here in the United States without legal immigrant status, which suggests they are criminals. However, the issue is much more subtle than that. Not only are federal criminal statutes regarding improper entry nuanced, but there also exist multiple ways to enter the United States without legal status while not violating a criminal statute. This essay explores these distinctions, and highlights the need for precision when discussing immigration status.