[lambda]

> She was treated like a criminal (ignoring the fact that she was, in fact, a criminal, accidentally or not).

No. Simply making a mistake on a visa application is not a crime, nor is overstaying a visa. It counts as "Unlawful Presence", which is a civil offense; in order to rise to the level of a crime, it must be "Improper Entry", which involves crossing somewhere other than a designated border crossing, deliberately lying on application forms, or the like.

One thing that people really need to be aware of in immigration law is the difference between an unlawful act and a crime. Lots of rhetoric about immigration talks about how people are already criminals for being in the country undocumented, when in fact they have violated no criminal statues, merely civil.

Actually, I think that this may not have even constituted unlawful presence; since the author was not yet technically in the country until exiting the airport, she was essentially just turned away at the border (with a brief detention for practical reasons). Note that I am not a lawyer, and not all that familiar with immigration laws, so take my interpretation with a grain of salt; but I am certain that there's a very big difference between civil and criminal violations, and committing a civil violation does not make one a criminal.

[trentnelson]

> Actually, I think that this may not have even constituted unlawful presence; since the author was not yet technically in the country until exiting the airport, she was essentially just turned away at the border.

Yup, it's officially referred to as "Denied Entry". You never enter the country, officially.

> (with a brief detention for practical reasons)

If there was a return flight 4 hours later, they would have been put on that. The fact that the timing didn't line up was unfortunate, but as you say, it's practical.

[TodPunk]

I'm willing to concede the term "criminal" in exchange for "unlawful entrant" in this instance. Using "criminal" is actually a bit more than what was deserved for describing both her treatment and her infraction. At the time it seemed to flow better, but I'm all for accuracy.

[lambda]

Actually, I can't think of many other civil offenses that warrant detention; so it is somewhat out of place that a civil offense such as using the wrong type of travel authorization by accident results in treatment that is generally reserved for people who have (or are suspected to have, with reasonable suspicion) committed a criminal act. Complaining about treatment that is generally reserved for criminals, or those strongly suspected of being criminals, for a simple bureaucratic error, is a fairly reasonable complaint.

This whole situation occurred because a convenience feature, which allows you to do a fully automated system to get an approval to board a plane to the US, didn't actually properly check for the legality of entering, so they were only ever determined to be using the wrong type of authorization once they had already arrived, leaving no choice but to detain them at the airport in order to deport them. And this is a pretty crappy situation; a very difficult to navigate bureaucracy, that seems to offer a convenience feature to allow an easy way around it, and then makes you waste a flight and be detained for a day just to be flown back again because you're not an expert on the intricacies of immigration law, is a pretty crappy system.

I agree that some of her rhetoric may have been a bit over the top, but it is a pretty awful situation to have been put in, and it seems like there would be much, much more efficient and humane ways of working around it.

[retrogradeorbit]

I agree with all of your points. Very salient. Though, judging by a lot of (presumably) American's comments on this thread, this is the way American's want it. There seems to be a lack of understanding of the intricacies of the law, and a general nastiness that if you fall afoul and are treated harshly, like a criminal, then it's your fault.

I guess it makes sense. The country hasn't become a prison state with the highest incarcerated population in the world by thinking clearly and acting commensurately.

[TodPunk]

I'm agreeing with you that "criminal" was too strong a word. I edited a couple words in to see if that could be made more clear. (I also agreed from the get-go that the immigration system needs reform. It's one of the worst in the world by any measure.)

[lambda]

Yeah, I got that you were agreeing about the word "criminal"; it just sounded like you were objecting to her using the term "criminal" for her treatment as well, and I was pointing out that since this is one of the few ways in which a civil offense can lead to detention, that that's actually not as bad a characterization as I think you were making it out to be.

Anyhow, sounds like on the real issue as opposed to arguing semantics, we're in fairly strong agreement. This immigration system is baroque, inhumane, inefficient, and the results actually run counter to what the system is supposed to be doing.

[alcima]

False statements on a visa application is a federal offense and grounds for inadmissability. Presumably they clicked "no" to "have you ever been denied a visa" when in fact they had.

[lambda]

I wouldn't presume anything. There are lots of reasons this could have happened, and not just due to lying on the application. Perhaps they had not been denied the J-1, but were just having trouble meeting all of the requirements in time; a J-1 visa requires a whole lot of paperwork, including from sponsoring organizations, and if some of that was taking longer than expected and may not have been done in time, they may have just thought "oh, we can do the ESTA and stay for 90 days with no visa, during which we can work this out", when in fact that is not allowed.

[serge2k]

You are talking about a crime. You don't get to make presumptions to show guilt.