Introduction: Deportability Provision for Threats Against the President or Next-In-Line

Section 237(a)(2)(D) lists several deportability provisions for “miscellaneous crimes.” Among these provisions is that found in section 237(a)(2)(D)(ii) of the Immigration and Nationality Act (INA), which renders deportable an alien who has been convicted of violating or of a conspiracy or attempt to violate 18 U.S.C. 871. 18 U.S.C. 871, a federal criminal provision, proscribes the making of certain threats against the President, President-Elect, Vice President, Vice President-Elect, or other person next-in-line to the Presidency. In this article, we will discuss the deportability ground found in section 237(a)(2)(D)(ii) of the INA through an examination of 18 U.S.C. 871.

Please see our full article to learn about more criminal deportability grounds found in section 237(a)(2) of the INA [see article]. Please see the relevant section of that article to learn about the other half of section 237(a)(2)(D)(ii) covering offenses found in 18 U.S.C. 960 [see section].

Federal Criminal Statute — 18 U.S.C. 871

Section 237(a)(2)(D)(ii) of the INA renders an alien deportable if he or she is convicted of the violation of 18 U.S.C. 871 or if he or she has been convicted of a conspiracy or attempt to violate 18 U.S.C. 871. The INA does not add any qualifications to the provision, so in order to understand this deportability provision, we must examine the relevant criminal statute itself.

18 U.S.C. 871 contains two parts. Clause (a) addresses the elements required for a conviction in violation of 18 U.S.C. 871. Clause (b) defines certain terms in the statute.

Clause (a) reads as follows (quoted verbatim):

Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly or willfully or otherwise makes such a threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both.

This statute thus criminalizes sending or otherwise making certain threats to the:

President;
Vice President;
Other official next-in-line to the Presidency;
President-Elect; or
Vice President-Elect.

As of November 14, 2016, the officials covered under this statute would be President Barack Obama, Vice President Joe Biden, President-Elect Donald Trump, and Vice President-Elect Mike Pence. When there is no President-Elect or Vice President-Elect, the only officials likely to be covered are the President and Vice President. In the case that neither the President or Vice President were able to discharge the powers or duties of the office of the President, the “other official” would be, first, the Speaker of the United States House of Representatives and, next, the Senate pro tempore (see 3 U.S.C. 19(a) and (b)).

The following types of threats are covered by 18 U.S.C. 871(a):

To take the life of;
To kidnap; or
To inflict bodily harm.

In order to be convicted under the statute, the individual must knowingly and willfully deposit for conveyance “in the mail or for a delivery from any post office or by any letter carrier” the threat in any of the following forms:

Letter;
Paper;
Writing;
Print;
Missive; or
 Document.

Alternatively, the statute also criminalizes knowingly and willfully otherwise making any such threat against the specified officials.

It is important to note that, for immigration purposes, a conviction under the statute is all that is needed to render an alien deportable. The length of the sentence imposed is not relevant to the consideration of whether the alien is deportable. In immigration proceedings, the only question regarding the alien’s deportability will be whether the alien was, in fact, convicted in violation of 18 U.S.C. 871. Nevertheless, it is worth noting that the statute specifies sentences of a fine, imprisonment of not more than five years, or both.

Conclusion

If an alien is charged in violation of 18 U.S.C. 871, he or she will need to retain a criminal defense attorney to contest the charges. Depending on the facts of the case, an individual may have various ways of defending against the charges. An alien facing criminal charges is also well advised to consult with an experienced immigration attorney for a full consultation of what a conviction or plea may mean for his or her immigration situation.

It is important to note again that section 237(a)(2)(D)(ii) is not concerned with the length of sentence imposed under 18 U.S.C. 871. Whether an alien receives the minimum sentence of only a fine or a fine in conjunction with the maximum sentence of five years’ imprisonment, he or she will be deportable under the INA. Although non-citizens are not allowed to vote in U.S. elections, they may criticize U.S. public officials just like U.S. citizens. However, the right to free public discourse does not extend to the making or conveying of threats against the President or other officer(s) in line for succession to the Presidency, not to mention threats against private individuals. U.S. citizens and non-citizens alike are well advised to keep political dissent within the confines of reasonable public discourse and not render threats to the body or person or anyone, including the President. If an alien is charged under this provision and intends to contest the charges, he or she should secure legal counsel immediately.