Immigration-related cases outnumbered all other federal prosecutions combined last year, data show, even as U.S. Attorney General Jeff Sessions vows to increase the use of federal prosecutions to crack down on illegal immigration.
Sessions last week stood near the U.S-Mexican border in Arizona as he pledged to Customs and Border Protection officers that he would “secure this border and bring the full weight of both the immigration courts and federal criminal enforcement to combat this attack on our national security and sovereignty.” Sessions also issued a memo to all federal prosecutors to prioritize immigration-related criminal offenses.
“This is a new era,” Sessions said in prepared remarks. “This is the Trump era.”
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Yet criminal prosecutions of defendants for immigration-related offenses make up the bulk of federal cases, at 52 percent of all crimes charged in U.S. District Courts last year, according to data compiled by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.
Sessions’s memo urges more aggressive prosecution of crimes such as smuggling and harboring unauthorized immigrants, and identity theft. It also calls for charging more immigrants with illegal entry and illegal re-entry — the two most commonly charged crimes — with a priority on those who have been convicted of aggravated felonies or past immigration violations. In the memo, Sessions directed each federal prosecutor’s office on the southern border to appoint a Border Security “coordinator” to oversee immigration prosecutions.
The roughly 35,000 charges of illegal entry and 29,000 charges of illegal re-entry filed in fiscal year 2016 far outnumbered other federal offenses, with nearly 11,000 drug-related charges and 6,700 firearms charges, according to TRAC data.
“It’s a huge change from 10 to 15 years ago,” when prosecutions for illegal entry and re-entry were a far smaller percentage of federal cases, said Grace Meng, senior researcher at Human Rights Watch. Meng, who authored a 2013 report on immigration prosecutions, called Session’s crackdown “an incredibly draconian reaction to offenses that are nonviolent, and could largely be dealt with as administrative offenses.”
Illegally entering the country is a federal misdemeanor and carries a sentence of up to six months in prison, although Sessions’ memo calls for more illegal entries to be charged as felonies for those with criminal histories. Re-entries are considered more serious, and sentences are especially compounded for those with prior convictions, which can include a conviction of illegal entry.
Meng’s report for Human Rights Watch found a decreasing proportion of those chosen for prosecution from 2002 to 2012 had the most serious prior felony convictions and an increasing proportion had past minor felony or misdemeanor convictions. There was also a slight increase in the percentage of those who had no prior criminal convictions.
Representatives for the U.S. Attorney’s Offices in the Southern and Western districts of Texas, which are responsible for the most immigration criminal cases, declined to discuss how their offices decide to charge illegal entry and re-entry cases. They also declined to comment on how they would respond to Sessions’ memo or whether it would affect their caseloads.
“Generally speaking we have cases brought in from a variety of agencies,” said Angela Dodge, spokeswoman for the office in the Southern District of Texas. “We obviously have certain guidelines but we also consider each case on the merits.”
Sessions’s directive brought immediate opposition from immigrant rights groups.
“Lost in the attorney general’s saber-rattling was the fact that the U.S. federal court system already is buckling under the weight of immigration prosecutions, which previous administrations also have relied on as a show of force against unlawful immigration,” Mary Meg McCarthy, director of the Chicago-based National Immigrant Justice Center, said in a statement.
The number of immigration offenses has risen rapidly in the past decade, as immigration agents along the southern border began referring more arrestees for prosecution and prison sentences before they are put in deportation proceedings in the immigration courts. The program, known as Operation Streamline, was launched jointly between the Departments of Homeland Security and Justice in 2005, with the intent of deterring migrants from arriving and the deported from returning.
Immigrants’ rights advocates have condemned the practice, which puts migrants in the traditional criminal justice system before they enter immigration court, a separate proceeding in which living in the U.S. without authorization is treated as a civil offense.
“These folks are already subject to deportation,” said Lena Graber, an attorney at the San Francisco-based Immigrant Legal Resource Center. “We’re spending a lot of extra time and money putting them in federal prison … and then sending them back to Mexico, instead of just doing that.”
Homeland Security’s own auditing body also found flaws with Operation Streamline’s execution, documented in a report released May 2015. The agency’s Office of the Inspector General found that the U.S. Border Patrol was referring asylum seekers for prosecution, likely in violation of U.S. treaty obligations.
U.S. law and United Nations refugee protocols require Border Patrol officers to refer arriving migrants who express fears of persecution and return to their home countries to an interview with an asylum officer.
“In two of the four sectors we visited that use Streamline, Border Patrol refers aliens expressing fear of persecution or return to Streamline prosecution,” the report said.
The audit also found that Border Patrol was not properly tracking whether the prosecutions were deterring future border-crossers, and advocates expressed doubts about the program’s effectiveness. For many trying to re-enter the country illegally, circumstances drawing them back to the U.S. — such as families or refugee claims — haven’t changed since their deportations, advocates said.
In a random sample of those convicted of illegal re-entry in 2013 conducted by the U.S. Sentencing Commission, an independent agency of the federal judiciary, two-thirds of re-entrants had relatives other than children in the U.S., while about half had at least one child in the U.S.
“Many people who are prosecuted for illegal re-entry are people who were deported and desperately trying to get back to their family,” Meng said. “Can something like this deter someone who is strongly motivated because they’re fleeing violence and persecution, or they have children they’re desperate to get back to?”