preemption by the US Supreme Court in the State of Arizona v. United States, 567 US 387 (2012).Illegal Entry to TexasSB 4 creates a new Texas Penal Code (TPC) offense in Chapter 51, which makes it a Class B misdemeanor if an alien (i.e., not a US citizen or national) enters or attempts to enter Texas directly from Mexico at any location other than a lawful port of entry to the US. A Class B misdemeanor is punishable by up to 180 days in jail and up to a fine of $2000 or both. Illegal reentry under the Texas law in TPC §51.03 is subject to a state jail felony, which is punishable by 180 days to two years in jail and a fine of up to $10,000, or both. The bill authorizes a Texas magistrate or judge to issue an order against someone convicted or charged with an offense under Chapter 51 to be returned to the foreign nation from which the person entered or attempted to enter Texas. Failure to comply with the order is a second-degree felony punishable by up to 20 years in jail.Federal law at 8 USC §1325, which has been in place for almost ten decades, creates a federal misdemeanor regarding an unlawful entry or attempt to enter the US by any alien at any time or place other than that designated by immigration officers. The offense is punishable by up to six months in jail and a fine of not more than $500 for each entry or both. In addition, 8 USC §1326 makes it a felony for an alien who has been denied admission, excluded, deported, or removed or has departed the US while an order of exclusion, deportation, or removal is outstanding, and then enters or attempts to enter the US; or is found in the US; unless the US Attorney General has expressly consented to the reapplication for admission. Based on certain violations prior to such reentry, jail time ranges from not more than two years to 20 years. Of course, federal prosecutions under §§1325 and 1326 are subject to the exercise of prosecutorial discretion. In addition, constitutional challenges have been raised against §1326 due to a

In a published decision released last week, the Board of Immigration Appeals held that an individual was removable as a human smuggler under INA § 237(a)(1)(E)(i) where she was convicted of aiding and abetting two non-citizens in evading and eluding examination and inspection by immigration officials. 18 U.S.C. § 2(a) (concerning aiding and abetting) and 8 U.S.C. § 1325(a)(2) (concerning evading and eluding). Matter of Martinez-Serrano, 25 I&N Dec. at 152.

Can a person "enter" the United States for purposes of unlawful entry under 8 U.S.C. § 1325(a)(1) when that person is under a form of official restraint? And does constant surveillance from the time a person walks across the border until her arrest count as official restraint?Maybe, and no, answered the Tenth Circuit in United States v. Gaspar-Miguel. "For purposes of this appeal, we need not address the broader question of whether 'entry' under § 1325(a) requires freedom from official restraint.

Napolitano’s comment triggered yet another firestorm of controversy led by conservative bloggers and radio talk show hosts who claim the federal statute prohibiting illegal entry into the United States makes such an entry a “crime.”The federal law, 8 U.S.C. § 1325, makes it a misdemeanor offense subject to fine or six-month imprisonment for anyone entering the United States illegally. Its sister statute, 8 U.S.C. § 1326, makes it a felony offense for anyone to reenter or attempt to reenter the U.S. after being removed or deported from this country.

· Anyone who has committed conduct that constitutes a chargeable criminal offense (again, possibly including the most minor offense). This also conceivably covers anyone who entered the country illegally, since that is an offense under 8 USC 1325. · Anyone who has engaged in fraud or willful misrepresentation in connection with an official matter or application to a government agency, or who has “abused” public benefits · Anyone whom an immigration officer judges to be a risk to public safetyAgain, these expanded priorities apply to people who are “removable,” and not, for example, to a green card holder arrested in the interior who has no prior convictions but has a pending case.

This determination should be left to specialized federal courts created for this purpose.Fifth, unlawful entry into the United States is a petty misdemeanor under 8 U.S.C. §1325(a). A court may consider this act as it would any other unlawful or uncharged conduct.

By referencing specific criminal sections of the U.S. Code (all of which are codified as part of the INA), the text actually seems to affect only people who have actually violated those provisions. It affects, in other words, people who have violated one of the five federal immigration crimes explicitly listed in Arizona Statute 3-701(D)(21): unlawfully bringing migrants into the United States, 8 U.S.C. § 1323, INA § 273; unlawfully bringing in and harboring migrants, 8 U.S.C. § 1324, INA § 274; illegal entry, 8 U.S.C. § 1325, INA § 275; illegal reentry, 8 U.S.C. § 1326, INA § 276; assisting certain inadmissible migrants in unlawfully entering the United States, 8 U.S.C. § 1327, INA § 277. It does not, however, affect people who simply overstayed a non-immigrant visa or engaged in some other violation of civil immigration law without more.Importantly, the bill is silent as to how a judge or, presumably, a jury serving as a trier of fact figures out whether a particular person has violated those provisions. By requiring a judge or jury to “determine that the aggravating factor” listed in Arizona Statute 13-701(D)(21) applies, S.B. 1377 effectively puts the criminal proceeding’s trier of fact in the position of gauging whether a person has violated a federal immigration crime.

The migrant in this case, Ms. Rosa Isela Velasquez-Cruz, was apprehended in the United States twice within just a few days. Subsequent to apprehensions on August 9, 2004 and August 11, 2004, Ms. Velasquez-Cruz pled guilty to illegal entry in violation of section 275(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1325(a)(1) (2012) (“INA” or “the Act”). Additionally, after each conviction Ms. Velasquez-Cruz left the country, however she returned to the U.S. both times.

TRAC, Prosecutions for April 2011. The leading immigration offense was unlawful entry, INA § 275, 8 U.S.C. § 1325. TRAC, Immigration Prosecutions for April 2011 (July 19, 2011).These statistics and similar data from recent months take on a different level of significance in light of the Ninth Circuit’s declaration of a judicial emergency in Arizona.

TRAC Reports, Prosecutions for February 2011 (May 17, 2011). Of the 13,092 cases initiated in February, 48.7% included immigration-related charges such as illegal reentry, 8 U.S.C. 1326, and unlawful entry, 8 U.S.C. 1325. This represents a 93.6% increase from 2006.