Is this a case of improper entry into the US?

Question

Occasionally there have been televised interviews with reporters and border property owners that have demonstrated the ease of 'stepping across the border' into Mexico and then stepping back into the US. The reporter and the property owner then demonstrate that ease.

As I understand it (please correct if wrong) that is a violation of Title 9 Sec 1459 that requires immediate report of entry at a point that has not been authorized. (Assuming that the reporter and landowner failed to report to a customs inspection facility). The penalty for failure to comply is 5,000 dollars for the first violation.

Have the demonstrators just televised themselves committing the first stage of a US Customs crime?

(Note that I am using the term improper entry in it's generic meaning; a crossing at 'unauthorized location')

Mark · Answer 1 · 2019-02-14T09:56:58.097

There is a legal concept of de minimis: the idea that some offenses, civil or criminal, are too small to be worth prosecuting. For example, a photograph of a city scene that incidentally captured part of a copyrighted billboard in one corner of the image infringes the copyright on that billboard. But if the copyright holder were to sue, it's virtually certain the suit would be thrown out due to the minimal nature of the infringement.

Technically speaking, yes, what you describe is a crime. But any prosecutor who tried to bring charges to that effect is likely to be chewed out by the judge for wasting everyone's time.

(Incidentally, assuming the reporter and property owner are US citizens, the crime is failure to cross at a designated crossing point (19 USC 1459, a customs offense) rather than improper entry (8 USC 1325, an immigration offense).)

The improper entry statute applies only to aliens, so if the landowner is a US citizen, there is no violation of that statute, technical or otherwise. — phoog, Feb 14 '19 at 08:16
I stand corrected in suggesting Title 8, and will edit my question. — BobE, Feb 14 '19 at 15:34

score 1 · Answer 2 · answered Feb 14 '19 at 08:20

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If the demonstrators are US citizens, then no. The statute concerns only improper entry by aliens.

They may be in violation of the customs reporting requirements described in the answer to the linked question.

answered Feb 14 '19 at 08:20

phoog

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score 0 · Answer 3 · edited Feb 16 '19 at 07:47

It is not obvious that a de minimis defense would succeed if such a case were prosecuted. This article surveys applicability of the concept to criminal liability. Various drug laws are stated in terms of possession in any amount, yet judges struggle with the criminality of possessing minuscule amounts of drugs. When crimes are graded according to some monetary threshold e.g. "grand larceny" as opposed to "petty larceny", if you commit the offense at exactly the lower threshold for the greater offense, that is not a "de minimis" offense. Likewise, 35 mph means 35 mph, and you don't re-enter the airport sterile area once you pass the "you must exit" sign.

It is possible that the judge would dismiss the charge as a mere "technical" violation, but it is also likely that the government would persuasively argue that it has a legitimate interest in strict enforcement of immigration laws in an appeal, under a "broken windows" theory of law enforcement. The defendant may be able to persuade the court that the law is not narrowly-enough tailored, because as it stands, it conflicts with the First Amendment (the action is plainly a political statement).

I want to point out that the question posed was NOT if this case could be successfully prosecuted - but I appreciate the opinion. — BobE, Feb 14 '19 at 21:14

Is this a case of improper entry into the US?

3 Answers3