Escalating the administration’s efforts to halt illegal immigration in this country, Attorney General Jeff Sessions on Friday ordered federal prosecutors to charge more border crossers with criminal offenses — even if they’ve not previously entered the country without permission.
Sessions instructed the U.S. attorney’s offices in border states to adopt a “zero tolerance policy” for immigration offenses and to prosecute all referrals from the Department of Homeland Security (DHS) under a statute that allows for charges against first-time offenders.
“To those who wish to challenge the Trump administration’s commitment to public safety, national security, and the rule of law, I warn you: Illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice,” he said in a statement.
“To the department’s prosecutors, I urge you: Promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens. You play a critical part in fulfilling these goals, and I thank you for your continued efforts in seeing to it that our laws — and as a result, our nation — are respected.”
The order comes as border crossings in March hit a record high since President Donald Trump took office.
The move brought swift condemnation from immigration advocates.
“There is no crisis at the southern border. Sessions is sensationalizing normal trends in migration and the refugee crisis in Central America in order to punish those seeking protection through the asylum system,” Human Rights First’s Eleanor Acer said in a statement.
“This policy is not only cruel, it violates U.S. treaty obligations and sets a poor example for the rest of the world,” she went on. “Prosecuting asylum seekers is also a waste of government criminal justice and prosecutorial resources. The immigration and asylum systems are the appropriate places to handle these cases.”
But it is far from clear that people seeking asylum would face criminal charges.
“Those people are probably not the ones who are going to get prosecuted,” said Andrew Arthur, a senior fellow in law and policy at the Center for Immigration Studies (CIS). “It would be interesting to see if they would.”
More likely, Arthur told LifeZette, is that Sessions is targeting people who try to sneak across the border. Typically, authorities send back illegal immigrants caught at or near the border. Even if those border crossers are formally deported, they don’t face criminal charges unless they’ve returned after a previous deportation.
But federal law allows for criminal charges. A first offense is a misdemeanor carrying a six-month maximum jail sentence; repeat offenses are felonies punishable by up to two years behind bars.
“Thirty days in jail for anyone who’s not been incarcerated [before] is enough to concentrate the mind.”
A former immigration law judge, Arthur said the prospect of even a short time locked up can be a powerful deterrent.
“Thirty days in jail for anyone who’s not been incarcerated [before] is enough to concentrate the mind,” he said.
It is unclear how many referrals prosecutors are declining to pursue. The Department of Homeland Security (DHS) did not immediately respond to inquiries from LifeZette.
According to Syracuse University’s Transactional Records Access Clearinghouse (TRAC), which monitors federal criminal cases, federal prosecutors filed charges against 217 defendants in February under the illegal entry charge. That trailed re-entry cases, and alien smuggling in terms of prosecution frequency.
Michael Hethmon, senior counsel at the Immigration Reform Law Institute (IRLI), said thousands of illegal immigrants theoretically could be prosecuted each year.
“Those crimes occur and are detected on a daily basis,” he said. “Typically, U.S. attorney’s offices file charges against a very small percentage of cases that come before them.”
Jessica Vaughan, CIS’s director of policy studies, said the initiative launched by Sessions sounds a lot like Operation Streamline, which began during George W. Bush’s administration.
Vaughan said it was one of a number of strategies the Bush administration experimented with to stop repeat border crossings. She said in some cases, authorities deported people to different parts of Mexico or even to the interior of the country to get them away from smugglers and make it harder for them to come back.
Vaughan recalled talking to a border agent at the time, who described apprehending the same illegal immigrant three times in a single shift.
One of the most effective strategies, Vaughan said, was filing criminal charges.
“It is restoring consequences for illegal crossings, even routine crossings,” she said.
Chris Chmielenski, NumbersUSA’s director of content and activism, said he sees the move as another step in the administration’s evolving enforcement efforts.
“It’s certainly good,” he said. “It’s not something we saw from the last administration.”
But Chmielenski said it does nothing to confront growing numbers of immigrants who abuse the U.S. asylum system. Only Congress can solve that problem, he added; the administration cannot.
“Their hands are tied in that regard,” he said.
Prosecuting large numbers of border jumpers would pose a resource challenge. But Arthur, the Center for Immigration Studies scholar, said illegal entry cases are not complicated.
“These are pretty easy cases to prosecute, though,” he said. “Either you did it, or you didn’t.”