Albany, N.Y., Mayor Kathy M. Sheehan said in a national television interview that it’s not a crime for immigrants to live in the U.S. without documentation.
"The U.S. Supreme Court has said that," she said while defending her city's status as a so-called "sanctuary city" to Fox News host Tucker Carlson. Albany's police do not report undocumented immigrants to federal authorities unless they commit a serious crime.
Sheehan said, “In Arizona v. the United States, the Supreme Court said simply being here undocumented is not a crime. There are civil violations and then there are criminal violations.”
The case she cited involved a 2010 challenge from the Obama administration to an Arizona law that required immigrants tot carry documents proving their status. Police were also instructed to stop and seek documents from anyone they suspected of being undocumented. Those without documents faced a state criminal charge.
The Obama administration contended Arizona could not create a state-level criminal charge for the violation because it’s already regulated by Congress. The Supreme Court agreed and struck down that section of the Arizona law, among other parts.
Experts supported Sheehan’s claim by pointing out how the U.S. legal system works.
People who break the law in the U.S. commit either a criminal or civil violation depending on how the law defines it and how prosecutors choose to proceed.
Being in the U.S. without documentation is considered a civil matter, said Nancy Morawetz, professor of clinical law at New York University School of Law.
“Being present in the U.S., that status, is not a crime,” Morawetz said.
That doesn’t mean undocumented immigrants can live in the U.S. without consequence, said Rick Su, a professor at the University at Buffalo School of Law. Federal authorities can deport them.
A criminal violation comes with a punishment, like time in prison. Civil cases come with penalties instead. Deportation is considered a penalty under federal law, not a punishment.
“Congress can decide what they want to make a crime and what they want to make a civil violation,” Su said. “What they’ve decided is that immigration violations by themselves are civil violations.
“What the Supreme Court said in Arizona v. U.S. is that generally being unlawfully present in the U.S. is not a crime, and that’s definitely true,” Su said. “What the court did, is say Congress had made these civil violations and Arizona is trying to make them criminal violations.”
It’s easier to deport undocumented immigrants through civil proceedings, Su said. In deportation proceedings, immigrants face a special judge. The government does not have to provide a public attorney to immigrants who cannot afford one. They are also not entitled to any due process.
Some immigration laws can land an immigrant in criminal court. Entering the U.S. illegally is a crime, for example, but staying after a temporary visa has expired is a civil violation. As many as two-thirds of undocumented immigrants in the U.S. entered legally with a visa, according to the Center for Migration Studies.
Our ruling
It may be semantics, but Sheehan is right. Living in the U.S. without documentation is a civil violation, not a crime. As an earlier PolitiFact fact check noted, however, those in the U.S. without documentation may have committed a crime by entering the country illegally.
Mark Krikorian, executive director of the Center for Immigration Studies, a group that generally opposes loosening immigration laws, told PolitiFact Florida that “it’s easy for such individuals to run into separate criminal problems even beyond their method of entry, such as filling out an employment eligibility form to get a job when they aren’t eligible to work.”
But their illegal presence is not a crime.
Sheehan's statement is accurate but needs clarification or additional information. We rate it Mostly True.
“Simply being in this country without documentation is not a crime”
— Albany Mayor Kathy Sheehan on Thursday, Nov. 16, 2017 in an interview on “Tucker Carlson Tonight”
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