The man who allegedly attacked Paul Pelosi, Speaker of the House Nancy Pelosi’s husband, at their home was reportedly a migrant in the United States without the federal government’s authorization. David DePape has been charged with multiple crimes as a result of last week’s attack, including attempted murder, burglary, and assault with a deadly weapon. News reports now suggest that DePape is a Canadian citizen who last entered the United States in 2008. If he hasn’t left since then and no other information emerges about his citizenship status, he would certainly be in the United States in violation of federal immigration law.
Canadian citizens typically have very little difficulty reaching the United States. With a valid passport and transportation, they can easily fly or drive into the United States. They do not need a visa. Under that permission, they can travel for leisure, but they aren’t usually allowed to work. In most circumstances, they are expected to leave the United States after 180 days. Barring anything unusual about DePape’s permission to come to the United States, his continued presence in the United States fourteen years after his last admission would mean he’s violating immigration law. Like with someone who enters clandestinely, that could make him subject to immigration imprisonment and removal.
There’s an important distinction between these two common ways of violating immigration law. Entering clandestinely is a federal crime. Entering with the government’s permission to stay temporarily, then not leaving is not a crime; it is a violation of civil immigration law. Both can result in detention and removal by the Immigration and Customs Enforcement agency, but only entering without the government’s permission can result in criminal prosecution.
Canadians often violate immigration law by overstaying—the technical term for coming to the United States with the government’s permission only to remain in the country after the period of authorized stay elapsed. Since fiscal year 2015, the Department of Homeland Security has issued an annual report about overstays, and every year it has reported that thousands of Canadians violate immigration law. According to DHS, there were approximately 57,592 Canadians in the United States during the 2020 fiscal year (October 1, 2019 to September 31, 2020) among the people who entered the United States by air or sea. The year before, fiscal year 2019, DHS claimed 83,674 Canadians had likely violated immigration law in this way.
Both of these are vast undercounts. For most countries, DHS analyzes data that it collects at airport immigration checkpoints staffed by Customs and Border Protection, which provide a good estimate of overstays. CBP also collects arriving and departing passenger information from Canadian citizens at airports. The difficulty when estimating overstays, though, is that most Canadians enter by land. DHS says it’s working on improving data collection and analysis at the land border with Canada, where, presumably, most Canadian citizens who enter the United States by land also exit. Once it reports overstay figures for Canadian citizens who enter and exit the United States by land, we can expect the estimate to increase substantially.
Despite violating federal immigration law by the tens of thousands every year, DHS doesn’t typically detain or remove Canadians. In fiscal year 2019, for example, DHS more than 80,000 citizens of three countries: Guatemala, Mexico, and Honduras. Canada didn’t even appear in the top 10 countries whose citizens were detained that year. Since the department reports having detained 3,400 Chinese citizens, Canada’s exclusion means fewer than 3,400 of its citizens were detained that year despite the government reporting that over 80,000 Canadians violated immigration law. That year, DHS removed 853 Canadians from the United States. Almost all (746) had a criminal record of some kind.
This is not to say that I support more detention of Canadians. I’ve written at length about abolishing immigration prisons. I merely point out that it’s not at all unusual for Canadians to violate immigration law and escape the usual consequences. If reporting about DePape proves accurate, no one should be surprised.
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