The Most Prosecuted Federal Offense in America: A Primer on the Criminalization of Border Crossing

Overview

The federal statute criminalizing illegal entry into the United States, 8 U.S.C. § 1325(a), has become an unlikely focus of the Democratic presidential primary. During the first round of debates, Julián Castro called for decriminalizing § 1325, and since then a large number of candidates have publicly expressed support for decriminalization. Elizabeth Warren released a comprehensive immigration platform earlier this month, outlining her own plan to decriminalize immigration violations.

Supporters of decriminalization argue that criminalization is unnecessary, given that immigration violations already carry civil penalties, and that prosecutions under § 1325 waste government resources, allow for abusive use of prosecutorial power and do little to deter undocumented crossings. Meanwhile, candidates who have refused to support decriminalization of immigration violations, such as Joe Biden and Beto O’Rourke, have argued that decriminalization of § 1325 would not unilaterally end family separation.

So what precisely does § 1325 do? Why is it important? And what effect would decriminalizing illegal entry into the U.S. really have?

Background

This renewed interest among the Democratic candidates stems from the Trump administration’s use of § 1325 in its family separation policy from last year. In April 2018, then-Attorney General Jeff Sessions directed federal prosecutors along the southwestern border to adopt a “zero-tolerance” policy for all offenses referred for prosecution under the illegal entry statute. This policy led to thousands of children being separated from their family members at the border. Adults were criminally convicted and placed in criminal detention, while the children were sent to Office of Refugee Resettlement facilities and foster care. (Family separation has continued despite the end of a formal zero-tolerance policy. More than 700 children were taken from their relatives between June 2018 and May 2019 under an exception to the injunction issued by a federal district judge for instances in which the parent poses a danger to the child or has a serious criminal record or a gang affiliation.)

Generally, being present in the United States without proper authorization is a civil, not a criminal, violation. The Department of Homeland Security (DHS) may place someone in removal proceedings or levy a fine for violating immigration law, but individuals may not be charged with a crime for merely being in the United States without lawful authorization.

However, Title 8 of the federal code criminalizes entering the country without authorization. Section 1325(a), or improper entry, applies to migrants who enter into the United States without proper inspection at a port of entry, avoid examination or inspection, or make false statements while entering or attempting to enter. Violation of § 1325(a) as a first offense is a misdemeanor punishable by a fine, up to six months’ imprisonment, or both. Section 1326, or illegal reentry, applies to migrants who unlawfully reenter; attempt to reenter; or are found in the United States after having been previously removed, excluded, deported or denied admission. This crime is a felony, and those convicted may be punished with up to two years’ imprisonment. The term of imprisonment may be enhanced up to a maximum of 20 years if the individual’s prior removal was based on past crimes.

Illegal entry and reentry are heavily prosecuted crimes today. In 2016, more than half of federal criminal prosecutions were for immigration violations, with the vast majority of those prosecutions brought under §§ 1325 and 1326. In April 2019, 65.6 percent of federal prosecutions filed in U.S. magistrate courts had a lead charge under § 1325, and 28.2 percent had a lead charge under § 1326. The number of prosecutions are still a relatively small proportion of total apprehensions per year by Customs and Border Protection (CBP). This was true even under Sessions’s zero-tolerance policy: Even a generous estimate still puts prosecutions at only 32 percent of total apprehensions of adults outside a port of entry. However, the process by which these crimes in particular are prosecuted allows for large numbers of individuals to be processed, charged and convicted.

Operation Streamline

Prosecutions for improper entry and reentry happen most commonly under a set of policies known as Operation Streamline, which was conceived in 2005 out of CBP’s struggles to respond to changing migration patterns. The history of its inception is described by Joanna Lydgate in a 2010 article in the California Law Review.

During that time, the vast majority of noncitizens apprehended at the border were Mexican nationals who were quickly deported through a “voluntary return” program, which consisted of the noncitizen signing some papers before being bused back across the border. But CBP was increasingly faced with people the agency called “OTMs,” or “other-than-Mexicans,” mostly people arriving from Central America. Non-Mexican nationals could not be “voluntarily returned” to Mexico and so were detained and put into regular removal proceedings. (The expedited removal process by which recent entrants are summarily deported, created in 1996 by Congress, would not be rolled out along the whole southern border until 2006.)

Non-Mexican citizens who awaited their removal hearings waited in detention an average of 90 days. With increasing migration from countries other than Mexico, the DHS quickly ran out of bed space and began releasing people with a court date.

At this point, the leadership of the border patrol station in Eagle Pass, Texas—where the detention bed-space shortage was especially acute—approached the U.S. Attorney’s Office for the Western District of Texas with a proposal to criminally prosecute all “OTMs” in the sector. Putting these people in the criminal justice system would free up detention space for the DHS to keep people detained during their removal proceedings. The U.S. Attorney’s Office rejected this plan as being obviously discriminatory on the basis of national origin. So the DHS came up with a new plan: Prosecute everyone.

To prosecute many thousands of border crossers, the DHS worked with the federal courts and U.S. attorney’s offices to develop a streamlined system. The system, which is still in use today, relies on federal magistrate judges, who are empowered to handle cases involving petty offenses like illegal entry. Their creation in the 1960s was supported by immigration officials looking for mechanisms to speed up §§ 1325 and 1326 prosecutions during similar zero-tolerance efforts. These judges accept guilty pleas from dozens of people at a time, in some cases up to 90. The many defendants receive a single lawyer between them, who meets with each client for a few minutes at a time. In some jurisdictions, the whole process—from meeting with defense counsel to guilty plea and sentencing—happens within a single day.

For prosecuting felony illegal reentry charges, prosecutors generally rely on “fast-track” plea agreements, which involve charging someone with illegal reentry and then offering to drop the charge to one or more counts of illegal entry in exchange for a guilty plea. Defendants receive a shorter sentence in exchange for a quick guilty plea, which enabled dockets to swell with illegal reentry prosecutions and allowed U.S. attorney’s offices and courts to process these cases more quickly.

Prosecutions under Operation Streamline increased throughout the Obama administration, although families with children were generally not prosecuted. Prosecutions then increased dramatically under the Trump administration, spurred by then-Attorney General Sessions’s order to federal prosecutors to adopt a zero-tolerance posture toward immigration violations, leading to the forcible separation of children from parents. While not the first administration to adopt a zero-tolerance policy, the Trump administration appears to have been the first to actually attempt prosecution of 100 percent of border crossers, something previous administrations had never envisioned.

Criticisms of Operation Streamline and Zero Tolerance

Operation Streamline, and the Trump administration’s escalation of it, is based on a deterrence theory—that seeing a no-nonsense response to irregular entry will dissuade foreign nationals from even attempting a crossing. Sessions claimed in his order to prosecutors that Operation Streamline effectively reduced irregular migration in the past. Indeed, as the initiative was being rolled out along the border in 2005-2009, the DHS touted its success by pointing to decreasing apprehension rates along the border.

Several other factors, however, provide a better explanation for the decrease in migration to the United States. While the economic crisis probably explains some of the decline, border apprehension levels had in fact already been decreasing since roughly 2000. The reasons for this decline are not very clear, but increased immigration enforcement (apart from criminal prosecutions) likely played a role. During the Clinton administration, CBP saw massive staffing increases and focused on a strategy of “prevention through deterrence” that aimed to push migrants to more hostile terrain by vigorously guarding easy crossing areas. This resulted in increased reliance on smugglers, driving up the cost of crossing the border, which probably depressed immigration. The surge in criminal prosecutions occurred years after these initiatives.

But whatever the deterrent effect of Operation Streamline during the Bush administration, it is difficult to argue that prioritizing criminal prosecutions had a deterrent effect when deployed by the Trump administration: After a summer of zero-tolerance prosecution and family separation, border apprehensions surged in 2019.

In addition to doubts over its effectiveness, critics of Streamline worry that prioritizing immigration offenses diverts resources away from prosecution of more serious crimes. Law professor and former U.S. Attorney Barbara McQuade has cautioned on Lawfare that increasing immigration prosecutions may mean that U.S. attorneys have to forego “more important matters—such as gang violence, drug smuggling, and human trafficking.” Indeed, in the Southern District of California, that appears to be what happened. A federal district judge, criticizing increasing prosecutions of entry crimes from the bench, told a U.S. attorney’s office that “this is not the best use of judicial or Justice Department resources to keep seeing these types of cases.” Immigration prosecutions have put immense pressure on federal court dockets.

Mass prosecutions of dozens of people all represented by one lawyer also raise serious due process concerns. One federal judge in Arizona pointed out that after lining up about 90 defendants, “we ask them to waive their constitutional rights. Defendants in other parts of the country do not have to give up critical rights in this atmosphere, only in the border districts because of this exploding caseload.”

Effects on Immigration Relief

The impact of an illegal entry or reentry conviction extends beyond the fine or imprisonment imposed by the district court. Entry and reentry convictions, like all criminal convictions, can have detrimental consequences on an individual’s immigration case and may make it impossible for an individual to eventually adjust his or her status to legal permanent resident. Under the Immigration and Nationality Act, individuals may be deemed inadmissible if they have been convicted of two or more offenses for which the aggregate sentence of confinement is five or more years. Illegal entry or reentry could thus contribute to an individual’s inadmissibility, which would bar him or her from adjustment of status (becoming a legal permanent resident).

Additionally, by having been convicted of a criminal offense, individuals often become a higher priority for criminal prosecution or DHS deportation if they are subsequently apprehended by the DHS. If they are apprehended and detained, the immigration judge will also weigh the individual’s criminal history in determining whether to grant bond for release from immigration detention. Finally, discretionary decisions by immigration adjudicators often consider criminal history, even if that history is not enough to trigger any statutory bars or requirements. Immigration judges may decide discretionarily to deny asylum or deny a motion to reopen or to reconsider based on factors like past convictions. A criminal conviction can have serious negative repercussions on an individual’s attempt at gaining immigration relief.

Many of the form plea agreements used by prosecutors for illegal entry and reentry convictions also include provisions that compel individuals to waive any claims to immigration relief, including claims of asylum and protection under the UN Convention Against Torture. Given that 99 percent of defendants in illegal entry and reentry cases plead guilty, and given the speed with which defendants are funneled through the criminal process under Operation Streamline, many individuals with strong claims to protective relief may never be able to assert their claims before being deported.

In recent years, as crises in Central America have sent many asylum seekers to the United States, human rights groups and others have raised growing calls to halt illegal entry prosecutions of asylum seekers. The government routinely convicts asylum seekers of illegal entry, despite a legal framework that makes asylum available whether or not someone entered at a port of entry. The language of the relevant statutes does not, on its face, prohibit the government from prosecuting asylum seekers, and an asylum claim or positive credible-fear finding is no defense to prosecution for illegal entry or reentry. The position taken by federal courts is that there is nothing preventing the government from both adjudicating asylum claims and prosecuting asylum seekers—as exemplified in a recent decision from the U.S. Court of Appeals for the Fifth Circuit upholding the criminal convictions of several asylum seekers who were forcibly separated from their children, convicted of illegal entry in federal court and deported without them.

Critics of prosecution point out that Article 31 of the Refugee Convention provides that states “shall not impose penalties, on account of their illegal entry or presence” on refugees who “enter or are present in their territory without authorization.” In 2015, the DHS’s internal watchdog observed that this might be a problem for Operation Streamline: “Border Patrol does not have guidance on using Streamline for aliens who express a fear of persecution or return to their home countries, and its use of Streamline with such aliens is inconsistent and may violate U.S. treaty obligations.” So how is the government able to flout the clear language of the Refugee Convention?

The attitude of successive administrations toward Article 31 may have been influenced by the federal courts’ approach to interpreting the United States’s domestic obligations under treaties. They have held several international treaties, including provisions of the Refugee Convention, to be non-self-executing—meaning that they cannot be enforced in domestic courts absent specific implementing legislation passed by Congress. The Refugee Act of 1980 generally implements the Refugee Convention but does not include anything tracking the language of Article 31.

In Medellin v. Texas, the Supreme Court held several treaties to be non-self-executing while endorsing the idea of a “background presumption” that international agreements are not enforceable in U.S. courts. Justice Stephen Breyer, in dissent, argued that the Supreme Court’s position is very difficult to square with the text of the Constitution: The Supremacy Clause provides that “all Treaties ... which shall be made ... under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” However, since a domestic court is not likely to enforce the nonpenalization provision of Article 31, the government is essentially free to ignore the Refugee Convention’s nonpenalization principle and prosecute people seeking humanitarian protection.

Decriminalization

Although Congress could decriminalize entry crimes through legislation, decriminalization under a new presidential administration would more likely involve executive guidances changing prosecutorial priorities, as has been proposed by Warren. Although mere policy guidances leave practices open to be changed by future presidents, for individuals who cross the border while a decriminalization policy is in effect, such a policy can be the difference between asylum or removal.

If a president were to direct the Department of Justice not to prosecute entry crimes, what would happen? The most immediate and obvious effect would probably be an unburdening of federal courts’ and U.S. Attorneys’ dockets and a refocusing of federal resources on other priorities. Proponents of decriminalization argue that stopping prosecution of entry crimes would not only alleviate the pressures of having such overburdened dockets but also have little impact on the federal government’s other interests. The DHS will be free to continue bringing civil removal actions against individuals entering the U.S. without authorization, meaning that immigration laws would still be enforced. Federal prosecutors, meanwhile, could focus on more serious immigration crimes, like trafficking and smuggling. As for the deterrent effect of illegal entry prosecution, there simply is not much evidence that the threat of prosecution deters entry at all, especially with respect to asylum seekers. There is scant evidence that Operation Streamline deterred unlawful border crossing when it was first introduced, and the most attention-grabbing instance of its use—family separation in the summer of 2018—preceded a historic rise in border apprehensions.

Opponents of decriminalization have little evidence to counter such arguments but, instead, rely on general instincts of the meaning of sovereignty, international borders and the rule of law. Regardless of whether there are deterring effects, they argue, criminalization supports the principle that countries control their own borders. Opponents, including Biden and O’Rourke, also contend that eliminating § 1325 would not prevent family separation and that pure focus on § 1325 diverts attention from the bigger, overarching problems with our immigration system.

The argument that the rule of law requires criminalization of illegal entry and reentry falls apart when one considers that there is no equivalent crime for losing legal status after entry. In other words, under current federal law, an immigrant who crosses the border without documentation may be prosecuted criminally, while an immigrant who enters on a tourist visa and stays beyond the period allowed cannot be. This disparate treatment stems from the racist roots of § 1325 itself, which was passed as part of a comprehensive effort to promote “whites only” immigration, while still allowing for the temporary migration of Mexican laborers. By the mid-1920s, American immigration quotas severely constricted immigration from anywhere other than Northern and Western Europe; however, southwestern employers fiercely opposed strict caps on Mexican immigrants, upon whom they were completely dependent for labor. In an effort to stem Mexican migration without provoking employers, segregationist Senator Coleman Livingston Blease proposed criminalizing illegal entry. The crime was designed to heavily impact Mexican migrants and, indeed, throughout the 1930s, between 85 and 99 percent of all individuals imprisoned for illegal entry were Mexican.

Opponents of decriminalization are correct that decriminalization of § 1325 will not solve the biggest problems of our immigration system. However, that does not mean that the criminalization of entry is not a problem in and of itself. The deleterious effects of criminal prosecution on individual migrants, their children and their access to future immigration relief are significant. The threat of policies like Operation Streamline to principles of due process and international law are enough to argue that decriminalization of § 1325 would provide marked benefits to many, regardless of whether it would improve other aspects of our immigration system.

Conclusion

Calls for ending prosecutions for illegal entry and reentry are hardly proposals for “open borders.” People who enter unlawfully are subject to deportation whether or not they are criminally prosecuted, and despite occupying a major portion of federal court dockets, only a small fraction of border crossers are prosecuted, and many of those who are now prosecuted are asylum seekers. It is also true, as a former DHS official in the Obama administration points out, that most of the current administration’s efforts to deter asylum seekers would not be affected by decriminalizing of illegal entry. But the reinvigoration of the debate over criminalizing entry, ongoing now for about 90 years, is a welcome development at a time when illegal entry has become the most prosecuted federal offense in America, raising legitimate concerns about the correct use of judicial and prosecutorial resources as well as U.S. compliance with its international obligations.