Wed August 6, 2014
A Mailbag on Criminal Law and Children Crossing the Border
A follow-up now on our conversation with the Baltimore Sun’s arbiter of language and writer of the blog “You Don’t Say.” When John visited July 30 we discussed whether it’s more accurate to call the young people crossing the southern U.S. border “immigrants” or “refugees,” and then he told me about why one of his blogposts on the topic was headlined, “It turns out that I was wrong”:
“I said it was improper to call these children criminals because immigration law is civil law, not criminal law. And it turns out I was wrong – there is a distinction, when people overstay their visas, for example, that becomes a matter of civil law and it’s handle through the Immigration and Naturalization agency. Crossing the border without permission, crossing the border illegally, is in fact a criminal act in the U.S. code, and so I had to publish a correction and an apology.”
That caught the ears of the staff at Catholic Charities’ Esperanza Center in Fells Point, who wrote to say McIntyre was more right the first time than in his correction.
Esperanza Center's managing attorney Adonia Simpson, said most of the children crossing the border are not violating criminal law because the criminal code must be read in conjunction with other federal laws that apply to children, including the Federal Juvenile Delinquency Act, the Trafficking Victims Protection Reauthorization Act (TVPRA), statutes governing asylum, along with applicable case law.
The TVPRA offers protections and due process rights to unaccompanied minors, including a broad range of waivers for alleged immigration violations. Even if convicted, a juvenile delinquency finding is not considered a "criminal" conviction under immigration law. Many of the unaccompanied minors are eligible for special visas (Special Immigrant Juvenile Status) or asylum, so to classify them as a “criminal” or having committed a crime before there is a determination as to their eligibility for relief is premature.