To be blunt, Tom Homan is a fucking Jack Ass.
Trump administration Border Czar Tom Homan claimed Sunday that Alexandria Ocasio-Cortez (D-NY) could be prosecuted if the Department of Justice decides her recent webinar on avoiding ICE deportation constitutes an "impediment" to law enforcement.
AOC's office hosted a live webinar on Wednesday called "Know Your Rights With ICE," where migrants were advised on what to do if an Immigration and Customs Enforcement (ICE) agent knocks on the door.
Homan appeared on CNN with Dana Bash, who played a clip of him telling Fox News, "I'm working with the Department of Justice in finding out, where is that line that they cross? So maybe AOC's going to be in trouble now."
"Are you suggesting that she should be prosecuted?" Bash asked him.
"I''m suggesting that I asked the Department of Justice, where is that line on impediment, right? It's a broad statute. So, I know, impeding, with someone stopped in front of me and put their hands on my chest, saying, 'You're not coming in here to arrest that guy,' that's clearly impeding. But at what point? Where's the line on impeding?"
For the record, the 4th Amendment is still a real thing. ICE can not enter a private residence without a lawfully valid warrant in order to arrest anyone. Secondly, the 5th Amendment still applies and no one has to answer any question by law enforcement and everyone has the right to counsel. These are Constitutional guarantees — Homan sees them as a threat to his authority.
Homan added, "Because you can call it 'Know Your Rights' all you want. We all know what the bottom line is. The bottom line is, how do they evade law enforcement?"
"She said that she is just offering civil education and that you might be, quote, 'Vaguely familiar with the U.S. immigration law," Bash said.
"Vaguely familiar with the U.S. immigration law," Homan said with a wry smile. "I forgot more about the immigration law that AOC will ever know. As a matter of fact...I had explained to her that entering the country illegally was actually a crime. So, you know, I'm not going to play that game with her."
Homan said he just wanted to make sure that ICE officers were "doing the right thing."
"I think it's the responsible thing to do for the border czar of the United States to make sure the men and women of ICE understand what they can and can't do," Homan said.
Bash added, "And, of course, right now being undocumented is a civil offense and not a criminal one, unless you commit those crimes."
Actually yes, being undocumented in the U.S. is not a crime. 8 U.S. Code § 1325 - Improper entry by alien — is not part of the criminal code.
(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
A fine. What you get for entering the US without documentation is a fine. It is not a crime until the 2nd offense. Simply being undocumented does not make you a criminal. [If you have entered to apply for asylum] you are not automatically subject to arrest, you are not automatically subject to deportation.
There are rules for expedited removal, but these only apply to people who have already been determined to be criminals or who had evaded border patrol upon entry.
Created in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act, expedited removal applies to noncitizens who arrive at a port of entry if they do not have entry documents or if they have tried to enter through fraud or misrepresentation, with certain exceptions. It has also been expanded to noncitizens who entered by sea without inspection and who have been in the United States for less than two years, and to those who cross a land border without inspection and are arrested within two weeks of their arrival and within 100 miles of the border. From June 2020 through March 2022, immigration officers were authorized to use expedited removal to the full extent permitted by law. This expansion of the regime enabled officers to apply it to any noncitizen who had not been “admitted or paroled” into the United States (those who had “entered without inspection”) and who could not establish that they had been physically present in the United States for the previous two years.
These are very restrictive limitations for expedited removal. This does not apply to most migrants, most of whom do surrender for inspection by border patrol and are assigned a date for their asylum or deportation hearing.
These people have rights, they deserve to know their rights. Immigration law is complex. Everyone undocumented should Know Their Rights with ICE.
None of that is “Impediment.” None of that is a crime.
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Homan vs AOC on Family Separation.
There have been some further questions brought up in the comments about 8 U.S. Code § 1325 as to whether the criminal aspect also applies to anyone who enters without going to through “inspection” at a port of entry. I am not currently certain whether voluntarily surrendering yourself to border patrol at a point between points of entry counts as such an “Inspection.”
If it does not then Bash’s statement “right now being undocumented is a civil offense and not a criminal one,” is likely incorrect.
Some further clarification:
There are defenses to entry without inspection in addition to status as a minor. If you had to come ashore because your boat broke down, you can't be prosecuted for it even if you knew coming to shore where you did was US soil for example.
If you entered to seek asylum, you can't be prosecuted for it either even if your claim is rejected. The asylum statute doesn't require you enter with inspection, and our treaty obligations bar prosecuting asylum seekers.
The Asylum law specifically waves the “point of entry” requirement which is listed under 8 U.S. Code § 1325 Section 1). So that doesn’t always apply. Most people who specifically surrender to Border Patrol are doing so to request Asylum, so what is their status then? Does 1325’s criminal application apply or not if the Asylum request is refused? (Asylum law only requires making the request, not that it is accepted.)
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.
So, I’m not yet sure. It looks like it can be generally considered a crime. — but not always.
It seems to me that 1325 should probably be rewritten and updated to reflect the realities and complexities of Asylum Law, which comes from the UN Convention on the Refugee which we ratified in 1968. As a Treaty it is then considered part of our Constitution under Article II, Section 2, Clause 2.
