Prosecuting People for Coming to the United States

Overview

Over the last two decades, the federal government increasingly has utilized the criminal courts to punish people for immigration violations. Particularly on the Southwest border, federal officials are vigorously prosecuting migrants either for entering the United States without permission or for reentering the country without permission after a prior deportation or removal order (commonly referred to, respectively, as “illegal entry” and “illegal re-entry;” or collectively as “entry-related offenses”). Tens of thousands of migrants and asylum seekers are subjected to criminal prosecution for these crimes every year. Prosecutions for entry-related offenses reached an all-time high of 106,312 in Fiscal Year (FY) 2019, near the end of the Trump administration, before falling to 47,730 in FY 2020 after the government began rapidly expelling most people crossing the border in March 2020 rather than referring them for prosecution.

The government’s approach to charging migrants with these entry-related offenses imposes heavy costs on both the migrants themselves and the federal government. The prosecution of individuals fleeing persecution or torture harms family members with whom the individual traveled and was apprehended. Spouses are often separated, as are parents from their minor children.

Lawyers increasingly have observed federal prosecutions of adult family members for entry-related offenses which result in those family members being sent to a federal prison away from their children. The children are then placed with federal authorities at shelters for unaccompanied minors or in foster homes, while parents receive little or no information about their location and condition.

With high conviction rates for these federal offenses, many migrants are subjected to mandatory incarceration in federal prison for months or longer. For these individuals, a conviction can impede current and future attempts to migrate lawfully or obtain asylum. For the federal government, such prosecutions are an extremely costly use of law-enforcement resources and have no demonstrated deterrent effect on future migration.

This overview provides basic information about entry-related offenses, including the significant costs incurred by the government conducting these prosecutions, the individuals who are subjected to them, and how the government’s rationale for carrying them out is not supported by the data.

Crimes for Which Migrants are Prosecuted

Physical presence in the United States without proper authorization is a civil violation, rather than a criminal offense. This means that the Department of Homeland Security (DHS) can place a person in removal (deportation) proceedings and can require payment of a fine, but the federal government cannot charge the person with a criminal offense unless they have previously been ordered deported and reentered in violation of that deportation order. Likewise, a person who enters the United States on a valid visa and stays longer than permitted may be put in removal proceedings but cannot face federal criminal charges based solely on this civil infraction. Those who enter or reenter the United States without permission, however, can face criminal charges.

Title 8 of the U.S. Code identifies federal criminal offenses pertaining to immigration and nationality, including the following two entry-related offenses:

• “Illegal Entry”/8 U.S.C. § 1325 makes it a crime to unlawfully enter the United States. It applies to people who do not enter with proper inspection at a port of entry, such as those who enter between ports of entry, avoid examination or inspection, or who make false statements while entering or attempting to enter. A first offense is a misdemeanor punishable by a fine, up to six months in prison, or both.
• “Illegal Re-Entry”/8 U.S.C. § 1326 makes it a crime to unlawfully reenter, attempt to unlawfully reenter, or to be found in the United States after having been deported, ordered removed, or denied admission. This crime is punishable as a felony with a maximum sentence of two years in prison. Higher penalties apply if the person was previously removed after having been convicted of certain crimes: up to 10 years for a single felony conviction (other than an aggravated felony conviction) or three misdemeanor convictions involving drugs or crimes against a person, and up to 20 years for an aggravated felony conviction.

Combined, violations of 8 U.S.C. §§ 1325 and 1326 became the most prosecuted federal offenses in recent years. Indeed, as of December 2018, they constituted 65 percent of all criminal prosecutions in federal court. Prosecutions for entry-related offenses subsequently declined when the government began expelling migrants back into Mexico rather than prosecuting them.

If a person is charged with “illegal reentry” (a felony), the prosecutor often will add a charge of “illegal entry” (a misdemeanor) to the indictment. The prosecutor can then pressure the migrant to plead guilty to the lesser offense (“illegal entry”) in exchange for a shorter sentence—perhaps even time served. This practice, known as a “flip flop” plea, poses serious due-process concerns. Prosecutors who propose this type of plea deal often offer it only if the migrant agrees to waive certain rights, even beyond the right to a trial, including the right to later challenge the conviction. In addition, the process moves so quickly that, in many cases, charged migrants accept a plea agreement, plead guilty, and are sentenced in a matter of hours.

Operation Streamline

Most entry-related prosecutions flow from a partnership between the Department of Justice (DOJ) and DHS called “Operation Streamline.” DHS and DOJ initiated Operation Streamline in the Del Rio Sector (in and near El Paso, Texas) in 2005. It is now in place in different forms in jurisdictions along the Southwest border.

The initiative was intended to deter future border crossers. In years past, the federal government would not have subjected these individuals to prosecution. But under this initiative, the government charges first-time entrants for illegal entry, including those with no criminal histories. It also conducts group prosecutions, sometimes prosecuting as many as 80 people at once in the same hearing. Individuals can be charged, tried, convicted, and sentenced in a matter of hours with little time to speak to an attorney, particularly if there are language barriers. This so-called “streamlined” process deprives migrants of an individualized hearing and raises serious due-process concerns.

Individuals criminally prosecuted for entry-related offenses are entitled to a lawyer, which is provided by the U.S. government if the individual cannot afford private counsel. However, an attorney’s ability to provide quality representation in a mass prosecution setting is significantly compromised by the rushed nature of the proceedings.

Attorneys may meet their clients for the first time on the day of the court hearing and have only minutes in a public setting to discuss their case. Translation services are limited, particularly for those who speak languages other than Spanish. Frequently, accommodations are not made for indigenous language speakers to receive needed interpretation to communicate with a public defender or to meaningfully participate in a court hearing, resulting in a lack of understanding of the proceedings or the implications of a criminal conviction.

Soaring Numbers and Costs

The number of individuals criminally prosecuted for entry-related offenses soared after 2007 as Operation Streamline expanded. Prosecutions for illegal entry in particular jumped 252 percent in just one year between Fiscal Year (FY) 2007 and FY 2008, increasing from 14,790 to 52,087. Immigration-related prosecutions dipped slightly in subsequent years, but continued to dwarf the pre-FY 2005 levels (prior to the initiation of Operation Streamline) (Table 1).

Entry-related prosecutions decreased somewhat in the first year of the Trump administration, but in April 2017, former Attorney General Jeff Sessions instructed federal prosecutors to make entry-related prosecutions a high priority nationwide, including charging first-time offenders. By the summer of 2017, immigration-related prosecutions exceeded summer FY 2016 levels and continued to rise through the close of the year. Prosecutors charged 4,857 individuals with entry-related offenses in December 2017 alone, a 10 percent increase over the previous year.

In April 2018, the former Attorney General doubled down by issuing a “zero-tolerance policy” that required each U.S. Attorney’s Office to prosecute all DHS referrals of illegal entry violations. Due in large part to the impact of this order, the number of federal criminal prosecutions for illegal (or “improper”) entry and illegal reentry skyrocketed from 53,614 in FY 2017 to 106,312 in FY 2019—an increase of 98 percent. The largest increase occurred in charges for illegal or improper entry, which rose from 36,649 to 80,886 over the same period—an increase of 120 percent (Figure 1; Table 1).

On March 20, 2020, following the arrival of the COVID-19 pandemic, the Centers for Disease Control and Prevention issued an order restricting the entry of individuals across the southern border, which became known as “Title 42.” Under Title 42, the vast majority of individuals encountered by the Border Patrol are rapidly expelled rather than issued a new or reinstated deportation order and referred for prosecution. In the months after Title 42 was put in place, the number of people prosecuted for unlawful entry dropped from nearly 4,000 in February 2020 to just 16 in October 2020. Total criminal prosecutions for illegal entry dropped to 27,630 in FY 2020—a decline of 66 percent from the previous year. Prosecutions for illegal reentry fell to 20,100—a decline of 21 percent (Figure 1; Table 1).

On January 26, 2021, Acting Attorney General Monty Wilkinson issued a memorandum to federal prosecutors which rescinded the zero-tolerance policy. The memorandum instructed prosecutors to return to DOJ’s longstanding policy of considering “individualized factors” in deciding whether to bring criminal charges against a person for illegal entry violations.

Figure 1: Number of Individuals Charged with Improper Entry & Illegal Reentry, FY 2004-2020

Source: U.S. Department of Justice, Office of Public Affairs, “Department of Justice Prosecuted a Record-Breaking Number of Immigration-Related Cases in Fiscal Year 2019,” October 17, 2019; U.S. Department of Justice, Offices of the United States Attorneys, Prosecuting Immigration Crimes Report, “8 USC §1325 FY20 Monthly Defs Filed” and “8 USC §1326 FY20 Monthly Defs Filed.”

The expansion of criminal enforcement against migrants comes at great financial expense to the U.S. taxpayer. There is no clear accounting of the costs—which include time expended by prosecutors, use of judicial resources, the caseloads of public defenders, and expenses associated with incarceration—but they are undoubtedly massive. One conservative estimate for the incarceration of defendants charged with or convicted of entry-related offenses totaled $7 billion over the decade of 2005-2015. Estimates of other court-related costs include appointed public defenders, judicial resources, and administrative court costs, running millions of dollars each month.

Judges and attorneys along the border maintain that the heavy emphasis on prosecuting entry-related offenses expends precious resources that otherwise would be devoted to prosecuting more serious crimes, such as drug smuggling and human trafficking.

The Human Consequences of Entry-Related Prosecutions

Not surprisingly, given the practical obstacles and due-process concerns associated with group hearings, conviction rates for Operation Streamline prosecutions are extremely high, steadily increasing the population of already crowded federal prisons. For example in FY 2018, 82 percent of immigration cases involved prosecutions for entry-related offenses. Many people end up pleading guilty to these charges. Over 99 percent of people charged with an immigration-related offense pled guilty in FY 2018. Sentencing guidelines can magnify the impact of prior minor offenses, pushing sentences higher.

Migrants plead guilty to entry-related offenses for a variety of reasons. These can include a lack of understanding of potential defenses against a charge (and lack of time to discuss such defenses with counsel prior to a group hearing); the prospect of shorter sentences; or misunderstanding the terms or consequences of a plea agreement. Yet plea agreements carry serious consequences beyond incarceration.

By accepting a plea agreement, individuals forego the right to assert defenses to the charges, to go to trial, and to appeal their criminal conviction. A conviction based on a plea agreement also can form the basis for placement in removal proceedings. Some plea agreements contain so-called “immigration waivers,” which require the defendant to forego claims for asylum or other immigration protections.

In addition, once convicted of an entry-related offense, migrants often become a higher priority for future criminal prosecution or deportation if they are subsequently apprehended by DHS. It also may make it significantly more difficult for them to legally immigrate in the future.

The Impact of Entry-Related Prosecutions on Persons Fleeing Persecution and Torture

Despite domestic and international legal obligations to protect migrants fleeing persecution and torture, the U.S. government regularly subjects individuals seeking asylum or other forms of protection in the United States to criminal prosecution and incarceration.

Migrants who arrive at the U.S. border without proper documentation can be, and often are, subjected to fast-track deportation processes called “expedited removal” or “reinstatement of removal.” In each instance, however, the law requires that these individuals receive a preliminary screening interview with an asylum officer if they express a fear of persecution in their country of origin.

Yet along the Southwest border, the government nonetheless subjects individuals fleeing persecution and torture to criminal proceedings under Operation Streamline. This practice violates international law. The United States is a party to the 1951 Refugee Convention, which precludes nations from penalizing individuals requesting protection from persecution or torture in their country of origin. In 2015, the DHS Inspector General noted that the prosecution of those “who express fear of persecution or return to their home countries” under Operation Streamline was “inconsistent with and may violate U.S. treaty obligations.

DHS, however, claims that these individuals are free to pursue protection-based claims while they serve their criminal sentences or after their release. Despite these claims, individuals and advocacy groups continue to report instances of DHS officials denying individuals their right to pursue asylum or protection-based relief and pressuring them to waive their fear-based claims in exchange for plea agreements.

Criminalizing Migrants is Not an Effective Deterrent

Research strongly suggests that entry-related prosecutions do not deter future migration; rather, migration to the United States is driven primarily by factors such as the security situation and economic conditions in a migrant’s home country and whether or not a migrant has family in the United States. This is the case with recent migration from Central American countries, which is driven in large part by high levels of violence in El Salvador and Honduras. Shifts in the economies of the United States and Mexico play a large role in migration trends as well. For example, although undocumented migration decreased in 2008 when criminal prosecutions began to rise significantly, many experts viewed the decrease in arrivals as a result of the “great recession”—the lack of economic opportunity in the United States and growing opportunities in Mexico.

Although DHS has long stated that the goal of Operation Streamline is to deter migrants from attempting to enter the United States, the DHS Inspector General has identified shortcomings with the data DHS gathers to assess the initiative, noting that DHS is “not fully and accurately measuring Streamline’s effect.”