Hikers: Crossing the Border Illegally is Unlawful

The story of the three Americans who are currently incarcerated and facing prosecution in Iran for allegedly crossing illegally into the country raises an interesting issue. Secretary of State Hillary Clinton and the hikers' families have stated to the media that the two men and one woman were innocently hiking through the rough terrain that separates Iraq from Iran, and inadvertently crossed the unmarked border into Iran. I believe that it's true they were hiking, but whether or not they accidently crossed the border, and whether it was indeed unmarked, no one but they will ever truly know, and I do not know what the Iranian law requires to prove this violation was intentional. Nonetheless, the trio seems like a group of young people who thrive on the adrenaline of adventure, given their imprudent choice to travel to Iraq at a time of war, so who knows whether they intended or not to enter Iran and take a look around. On the other hand, I do not believe, as the government of Iran accuses, that they were spies.

Moreover, I certainly understand the fear the three must feel about being incarcerated in a foreign country known currently for its human rights abuses against anti-government protestors. I also sympathize with their families' anxiety since the three are held so far away, in a country with which the U.S. has no diplomatic relations, and it appears little can be done other than patiently await a resolution of the cases. Having said this, one should also be clear about an important fact. The United States also detains and prosecutes those who allegedly cross our borders illegally. In fact, a recent report by Syracuse University's Transactional Records Access Clearinghouse (TRAC) indicates that the rate of prosecution in this country for victimless immigration violations is rising at an astonishing rate, while the prosecution of violent and other serious crimes is diminishing. (See, http://trac.syr.edu/whatsnew/email.091218.htm and excerpt below). These prosecutions allow law enforcement to blame a high crime rate on noncitizens, while failing to report the relative harmlessness of these offenses. Further, there has been an apparently disturbing decision made by the Governmentto dedicate fewer law enforcement resources to violent crimes and white collar crimes, such as securities and mortgage fraud. Curiously, this does not make the headlines the way the arrest of the three hikers in Iran does, even though it affects many more people who are likely to be equally confused and frightened about their predicament. In fact, 92% of immigration law violations prosecuted in fiscal year 2009 involved cases of illegal entry to the U.S.

Our 3000-plus mile border with Canada is mostly unmarked except at the various ports-of-entry maintained by Customs and Border Protection. If a noncitizen crosses that border at an undesignated location, he or she will set off a sensor which alerts Border Patrol of a potential illegal entry into the U.S. Once apprehended, the noncitizen is arrested and detained. Some are prosecuted for illegal entry and serve a jail sentence. Ultimately, the person falls back into the hands of the immigration authorities and is detained and deported, except for perhaps the very few who have a defense against removal, such as asylum. And their incarceration might last many months. So I must ask, why would another sovereign nation not be justified in detaining and prosecuting foreign citizens for the same offense? And why would Iran's sensitivity towards the United States' interference in its domestic laws be any less justified than if the situation had been reversed?

Several years ago I represented a very bright and accomplished woman, a permanent resident, who had been accused of smuggling two men into the U.S. The men, friends of hers, had been passengers in her car during a trip to Canada, and on the way back, they unexpectedly asked her to drop them off a few miles before the border so they could take a walk to get some fresh air. They told her that they would cross into the U.S. on foot at the required checkpoint. She had no reason to doubt their sincerity, so the three then agreed to meet inside the U.S. at a designated spot to conclude the trip home. The men, though they had visas to come to the U.S., ended up crossing into the U.S. at an unmarked point in the woods and were immediately arrested by Border Patrol. They then turned in my client and disclosed the location where she was waiting for them. For over six years this woman determinedly fought the charge that she had knowingly aided and abetted the men to enter the country illegally. I know that the emotional toll, financial expense, and the agony of never knowing how the complicated case would conclude overwhelmed her many times. During the pendency of the case, she could not travel abroad to visit her elderly, ailing parents. Fortunately, in the end, the charge was dismissed and the removal proceedings against her were terminated because the Government could not meet its burden of proof. This woman's story has never been told by press, has never been in the media, and I know that she's not alone in having felt that her life was turned upside down by an accusation which, ultimately, proved unfounded.

From the TRAC report:

"(21 Dec 2009) The latest Justice Department data show that federal prosecutions reached an all time high in FY 2009. The surge was driven by a sharp increase in immigration filings. According to timely case-by-case data obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC), overall federal prosecutions peaked at 169,612, up nearly 9 percent from the previous year.

But the increase in immigration filings was much sharper -- 15.7 percent. This means that such prosecutions now make up well over half of all criminal cases brought by the government. Meanwhile, the prosecution of other major crime categories such as drugs, weapons and white collar crime was up only slightly or had actually declined...

Because of the financial crisis that continues to grip the nation, the Obama Administration has sought to emphasize its concern about securities fraud, mortgage fraud and other such illegal activities. On November 17, for example, Attorney General Eric Holder held a news conference to announce the creation of a new Financial Fraud Enforcement Task Force to coordinate the government's response. (The Bush Administration had appointed a similar task force with little visible impact during a period when the public was concerned about the Enron abuses.)
The prosecutions of these kinds of white-collar crimes, however, have never appeared to have been a major concern of the Justice Department and the investigative agencies like the FBI and the Securities and Exchange Commission. In FY 2009, for example, Justice Department data showed there were only 178 securities fraud prosecutions. While up 22 percent from 2008, this figure still only represents about a third of what it was in 2002, when there were 513 such prosecutions. For another business category, corporate fraud, the data indicate a grand total of 82 prosecutions, down to about a quarter of what it was — 322 prosecutions — in 2003, the first year this category was used. Although such cases obviously are among the most difficult for the government to prove, they seem infinitesimal when compared to the 91,899 immigration prosecutions."