PerspectiveCriminal Prosecutions and Illegal Entry: A Deeper Dive
Since the first Democratic presidential debates at the end of June, candidates, pundits and former government officials have discussed whether provisions of law that turn unauthorized border crossing into the federal crime of “improper entry” – in addition to a civil immigration law violation – should be repealed. Over the last three years, researchers at Human Rights First have conducted extensive research and observed countless entry and re-entry prosecutions in Arizona, California, New Mexico and Texas. These prosecutions, as we have detailed in a series of reports, violate U.S. refugee treaty obligations, impinge on due process, separate children from their parents, waste government funds, and divert prosecutorial resources from serious criminal and security threats.
Since the first Democratic presidential debates at the end of June, candidates, pundits and former government officials have discussed whether provisions of law that turn unauthorized border crossing into the federal crime of “improper entry” – in addition to a civil immigration law violation – should be repealed.
The chair of the Republican National Committee characterized the proposal as a call for open borders. Some Obama administration officials have also argued against such proposals. Juliette Kayyem, a Department of Homeland Security (DHS) official during the Obama administration, asserted that Section 1325 was needed to protect borders and deport people. Sarah Saldaña, director of Immigration and Customs Enforcement (ICE) during the Obama administration, urged the law should stay on the books as a “tool” in the “tool box.” Former DHS Secretary Jeh Johnson argued that decriminalizing unauthorized entry was tantamount to a declaration that our borders are open.
Eleanor Acer writes in Just Security that much of the debate has unfortunately failed to make clear that, even without these criminal laws on the books, the border would still be guarded by Customs and Border Patrol (CBP) agents, drones, fencing and (some) wall, and people who cross the border without authorization would still be subject to the administrative system Congress created to address violations of U.S. immigration law. For example, they would still be taken into Border Patrol custody, put into the administrative deportation system’s proceedings, deported if they are not ruled eligible for asylum or other relief, and in the meantime held – often unnecessarily – in ICE detention facilities for weeks, months or longer. Other laws would still criminalize smuggling, trafficking and a wide range of other criminal conduct should a person who crossed the border have committed such crimes.
Also absent from much of the debate has been information on how laws that criminalize entry and reentry actually work in practice and how they have been used to punish asylum seekers and migrants in violation of due process and U.S. refugee treaty prohibitions – long before the Trump administration’s zero tolerance/family separation fiasco, and continuing to this day.
Over the last three years, researchers at Human Rights First have conducted extensive research and observed countless entry and re-entry prosecutions in Arizona, California, New Mexico and Texas. These prosecutions, as we have detailed in a series of reports, violate U.S. refugee treaty obligations, impinge on due process, separate children from their parents, waste government funds, and divert prosecutorial resources from serious criminal and security threats.
