- The Washington Times - Thursday, September 13, 2007

Rudolph W. Giuliani has put himself at odds with most congressional Republicans, including Rep. Peter T. King, his own point man on homeland security and immigration, by saying he does not think being in the United States illegally should be a crime.

Speaking on the Glenn Beck radio program last week, Mr. Giuliani said that illegal entry into the U.S. is not a federal crime and that he doesn’t think it should be, either: “It shouldn’t be because the government wouldn’t be able to prosecute it. We couldn’t prosecute 12 million people.”

His opponents for the Republican presidential nomination say it appears Mr. Giuliani is retreating from a philosophy he held as New York mayor, when he made a point of going after the smallest crimes.

And his stance leaves him stacked against House Republicans and Mr. King, New York Republican and a frequent surrogate for Mr. Giuliani on immigration, who two years ago led the House effort to make all illegal aliens subject to criminal penalties. That measure passed the House with the vast majority of Republicans in support, but never saw action in the Senate.

Mr. Giuliani says he was just describing the legal situation and didn’t intend to make new policy.

“Illegal immigration is not crime,” he told reporters who asked him about it this weekend. “Crossing the border and being caught is a misdemeanor. Being an illegal immigrant in this country is subject to deportation, but not prosecution. That’s just a state of the law and that’s what the law of the United States is.”

It is a misdemeanor to enter the country illegally, such as jumping the border. But simply being in the country without authorization, such as the 40 percent of illegal aliens who have overstayed their legal visas, is a civil matter punishable by deportation but not subject to criminal penalties.

Maria Comella, a spokeswoman for Mr. Giuliani, said he approaches the issue as a mayor who dealt with hundreds of thousands of illegal aliens during his two terms, and said he thinks making illegal presence in the country a crime would only clog the courts.

In fact, that’s why few prosecutors bring criminal cases against those who have crossed the border illegally, said Jan Ting, former counsel at the Immigration and Naturalization Service and an adviser to Mr. Giuliani on immigration.

Mr. Ting said criminal defendants have rights to a taxpayer-funded lawyer and to protections such as a jury trial that aren’t available in a civil removal proceeding.

“One of the reasons it’s rarely prosecuted is it’s hard to find prosecutors with the time and energy to take up these cases,” he said.

Mr. King was traveling overseas yesterday and couldn’t be reached for an interview, but he has defended his 2005 effort to make illegal entry into the U.S. a crime. NewsMax.com quoted him telling WABC radio last year that it was important to attach a criminal penalty to illegal entry because it gives prosecutors another tool to go after terrorists.

“Keep in mind how many of the 19 [September 11] hijackers had overstayed their visa,” he said.

Mr. Giuliani’s opponents for the presidential nomination have jumped on his remarks, with Mitt Romney’s campaign saying Mr. Giuliani showed “a troubling lack of interest in making enforcement of our nation’s immigration laws a priority.”

Rep. Tom Tancredo said Mr. Giuliani’s stance is at odds with his “broken windows” law-enforcement philosophy as mayor. Under that theory, going after smaller crimes helps to cut down on major crimes as well.

“In this case I guess what he’s saying is no broken windows, but we will ignore the fact that you broke into the country,” said Mr. Tancredo, the Colorado Republican and presidential candidate who has forced immigration to the top of the Republican presidential discussion.

The immigration issue has roiled the Republican field, with candidates trying to outdo each other with their support for border enforcement. Mr. Giuliani has said he would first secure the borders and deport illegal aliens who have committed major crimes, then offer a path to citizenship to some illegal aliens.

Ms. Comella defended Mr. Giuliani’s position on illegal entry as consistent with the 2005 House vote. She said an amendment offered by Republican leaders that would have made illegal entry into the U.S. a misdemeanor, rather than a felony, proves House leaders backed off their stance.

She pointed to a column by Mr. Tancredo, who supported the failed amendment, as evidence.

But Mr. Tancredo said in an interview that misconstrues his vote.

“A misdemeanor is still a crime. I defended the idea of making it a misdemeanor,” he said.

He said Mr. Giuliani’s record as mayor, when he defended New York’s “sanctuary city” policy of protecting the identities of some illegal aliens, proves he would be “the worst possible candidate” on immigration.

“I think he’s even worse than John McCain on the issue, and that’s saying something,” Mr. Tancredo said.

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