As an immigration and criminal defense lawyer I hear a lot about “criminal aliens.” Legally, the term usually refers to people who happen to be aliens (whose status may be legal or illegal) who commit crimes.

But more popularly, it seems a criminal alien is one who is here illegally, whether they’ve committed a “crime” or not. That is, they are criminals because they’re here in violation of the law.

It becomes a slippery slope because once you label any out-of-status alien “criminal” it becomes very easy – at least in the court of public opinion – to justify all sorts of treatment that would make a constitutional scholar wince.  Although it may be oversimplistic, some of the provisions in our law seem to treat an overstay the same as a burglar.  And sometimes I wonder whether some of the more draconian provisions of our law stem from legislators who found it easy to call all status violators “criminal

But then it is claimed that since immigration “crimes” (i.e., violations) are regulatory offenses, the constitutional protections that exist for criminal defendants do not apply.

Should the system be able to have it both ways?