As trump prepares to escalate his war on immigrants, refugees, and asylum-seekers, it’s important to remember that unlawful re-entry at the border is a felony but overstaying a visa isn't. Unsurprisingly, the reason has its roots in racism and white supremacy.
As many as 44% of undocumented immigrants are “visa overstays,” people who entered the country legally but when their visa expired, requiring their departure, they stayed anyway. However, they are not targeted for deportation, incarceration, or even harassment, because they’ve committed only a misdemeanor. The reason that unlawful re-entry is a felony is that in the 20s, a white supremacist enshrined anti-Mexican racism into law:
Senator Coleman Livingston Blease hailed from the hills of South Carolina. In 1925, he entered Congress committed, above all else, to protecting white supremacy. In 1929, as restrictionists and employers tussled over the future of Mexican immigration, Blease proposed a way forward.
According to U.S. immigration officials, Mexicans made nearly one million official border crossings into the United States during the 1920s. They arrived at a port of entry, paid an entry fee and submitted to any required tests, such as literacy and health.
However, as U.S. immigration authorities reported, many other Mexican immigrants did not register for legal entry. Entry fees were prohibitively high for many Mexican workers. Moreover, U.S. authorities subjected Mexican immigrants, in particular, to kerosene baths and humiliating delousing procedures because they believed Mexican immigrants carried disease and filth on their bodies. Instead of traveling to a port of entry, many Mexicans informally crossed the border at will, as both U.S. and Mexican citizens had done for decades.
When the debate stalled over how many Mexicans to allow in each year, Blease shifted attention to stopping the large number of border crossings that took place outside ports of entry. He suggested criminalizing unmonitored entry.
According to Blease’s bill, “unlawfully entering the country” would be a misdemeanor, while unlawfully returning to the United States after deportation would be a felony. The idea was to force Mexican immigrants into an authorized and monitored stream that could be turned on and turned off at will at ports of entry. Any immigrant who entered the United States outside the bounds of this stream would be a criminal subject to fines, imprisonment and ultimately deportation. But it was a crime designed to impact Mexican immigrants, in particular.
The article covers several different aspects of historical immigration law; I recommend reading it in full.
Visa overstays don’t voluntarily depart and return; unless they’re from Mexico or Canada, they can’t go back and forth easily because they’d need to cross an ocean. So they never become subject to felonious unlawful return and pursuing them is a low priority.
The U.S. Department of Homeland Security estimated 701,900 visa overstay incidents in fiscal 2017 — and that only accounts for air and sea travel.
That’s about double the number of migrants caught crossing into the U.S. from Mexico illegally during the same period, according to Border Patrol data.
[…] Due to the sheer number, U.S. authorities have focused their enforcement efforts on those who appear to pose a threat to national security or rack up a criminal record during their stay.
As for the rest? “There’s no one looking for you,” said Jessica Vaughan, director of policy studies at the Center for Immigration Studies, an institute that advocates for tighter immigration control.
The article describes the challenges of tracking visitor departures and some efforts to use technology, much of which sounds very “Big Brother” to me, to track visitors while they’re in the U.S. Again, I recommend reading the article in full.
To be clear, visa overstays aren’t getting a pass. Efforts to identify them have been increasing since two of the 9/11 hijackers were visa overstays. Here’s an estimate of their composition:
The highest rate of overstays in fiscal 2017 occurred on student and exchange visitor visas, with 40 percent from four countries: China, Saudi Arabia, India and South Korea. The data excludes Mexican and Canadian student and exchange visitors.
The category with the largest number of overstays came from short-term visitors, with about 20 percent from two countries: Brazil and Venezuela. That category does not include countries participating in the Visa Waiver Program, which allows their citizens and Americans to travel without visas for short-term business and tourist stays.
However, Visa Waiver nations still accounted for 19 percent of total overstays, led by the United Kingdom and France.
As you can see, people from non-Visa Waiver Program nations or with student visas who overstay tend to be from poor countries or those with autocratic regimes. About the Visa Waiver Program:
The Visa Waiver Program (VWP), administered by the Department of Homeland Security (DHS) in consultation with the State Department, permits citizens of 38 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. In return, those 38 countries must permit U.S. citizens and nationals to travel to their countries for a similar length of time without a visa for business or tourism purposes. Since its inception in 1986, the VWP has evolved into a comprehensive security partnership with many of America’s closest allies. The VWP utilizes a risk-based, multi-layered approach to detect and prevent terrorists, serious criminals, and other mala fide actors from traveling to the United States. This approach incorporates regular, national-level risk assessments concerning the impact of each program country’s participation in the VWP on U.S. national security and law enforcement interests. It also includes comprehensive vetting of individual VWP travelers prior to their departure for the United States, upon arrival at U.S. ports of entry, and during any subsequent air travel within the United States.
The 38 participating countries/regions are:
- Andorra
- Australia
- Austria
- Belgium
- Brunei
- Chile
- Czech Republic
- Denmark
- Estonia
- Finland
- France
- Germany
- Greece
|
- Hungary
- Iceland
- Ireland
- Italy
- Japan
- Latvia
- Liechtenstein
- Lithuania
- Luxembourg
- Malta
- Monaco
- Netherlands
- New Zealand
|
- Norway
- Portugal
- San Marino
- Singapore
- Slovakia
- Slovenia
- South Korea
- Spain
- Sweden
- Switzerland
- Taiwan*
- United Kingdom**
|
Note that Chile is the only country in Central or South America and Brunei is the only country in the Middle East or Africa. A few allied Asian countries make the list but most countries are European. That doesn’ t necessarily mean the program is racist and inherently designed to grant favorable treatment to majority-white nations. On the surface, the requirements appear to be reasonable:
Initial and Continuing Designation Requirements
The eligibility requirements for a country’s designation in the VWP are defined in Section 217 of the Immigration and Nationality Act as amended by the Secure Travel and Counterterrorism Partnership Act of 2007. Pursuant to existing statute, the Secretary of Homeland Security, in consultation with the Secretary of State, may designate into the VWP a country that:
- Has an annual nonimmigrant visitor visa (i.e., B visa) refusal rate of less than three percent, or a lower average percentage over the previous two fiscal years;
- Accepts the repatriation of its citizens, former citizens, and nationals ordered removed from the United States within three weeks of the final order of removal;
- Enters into an agreement to report lost and stolen passport information to the United States via INTERPOL or other means designated by the Secretary;
- Enters into an agreement with the United States to share terrorism and serious criminal information;
- Issues electronic, machine-readable passports with biometric identifiers;
- Undergoes a DHS-led evaluation of the effects of the country’s VWP designation on the security, law enforcement, and immigration enforcement interests of the United States; and
- Undergoes, in conjunction with the DHS-led evaluation, an independent intelligence assessment produced by the DHS Office of Intelligence and Analysis (on behalf of the Director of National Intelligence).
Admittedly, though, I can’t tell the extent to which the requirements were massaged to exclude countries the “administration” considers shitholes untrustworthy. They may not be as reasonable as they seem.
Regardless, it’s clear that there are multiple avenues for people to be the U.S. unlawfully. But in the absence of criminal behavior while here, unlawful residents who entered the country from Mexico are treated far more punitively than those from elsewhere. And that’s completely by design.