“I have not lost the desire to try again”
When Human Rights Watch met Alicia S. (pseudonym) at a women’s shelter in Tijuana, Mexico, it had been two-and-a-half years since she had last seen her daughters.
Alicia came to the United States without authorization in 2000. She met and married another unauthorized immigrant, and they had two US-born daughters, now 11 and 9 years old. At the age of 5, her younger daughter’s kidneys began to fail. In 2009, Alicia’s husband was deported (and she has not heard from him since). A year later, police stopped Alicia for pulling out of a parking lot without her lights on. Surrounded by several squad cars, she was arrested for not having paid a ticket for driving without insurance. She was taken away while her daughters cried in the back seat.
That was the last time Alicia saw her daughters. She was soon after deported to Mexico.
Her daughters are now in foster care. Soon after being deported, Alicia received word that her daughter had successfully received a kidney transplant. “I felt so much joy, I was so happy,” Alicia said, smiling at the memory even as she cried. “But I felt sad that I could not be in the hospital taking care of her.”
Alicia has tried to return to the US several times. The first time, she was stopped near the border and placed in immigration detention for three months. The second time, she was abandoned by smugglers without water and food in Texas, apprehended, and criminally prosecuted for the federal misdemeanor of illegal entry. She told us that at the hearing in federal court, where she stood with two dozen other defendants, “I begged the judge to forgive me, that I was desperate because of my daughters.” He gave her a criminal sentence of 13 days in prison. A lawyer later told her the conviction would make it almost impossible for her ever to get a US visa, and if she were to return, she could face prosecution for the felony of illegal reentry. But Alicia cannot imagine living without her daughters. She told us, “I have not lost the desire to try again.” 
Alicia S. is one of the tens of thousands of migrants each year who face criminal prosecution on top of deportation and other civil penalties, for illegal entry or reentry to the United States. Illegal entry, the misdemeanor of entering the country without authorization, and illegal reentry, the felony of reentering the country after deportation, are now the most prosecuted federal crimes in the United States.
The criminal prosecution of illegal entrants has grown exponentially over the past 10 years. In 2002, there were 3,000 prosecutions for illegal entry and 8,000 for illegal reentry; a decade later, in 2012, these prosecutions had increased to 48,000 and 37,000, respectively. These cases now outnumber other frequently prosecuted federal offenses such as drug, firearm, and white-collar crimes.
The US Department of Homeland Security (DHS), the agency that enforces US immigration laws, refers more cases for prosecution to the US Department of Justice than do the Federal Bureau of Investigations (FBI), the Drug Enforcement Administration (DEA), the Alcohol, Tobacco, Firearms, and Explosives agency (ATF), and the US Marshals service combined. Nearly everyone charged with these offenses pleads guilty, and they end up serving federal prison sentences ranging from a few days to 10 years or more for felony reentry before they are eventually deported.
The rapid growth in federal prosecutions of immigration offenses is part of a larger trend in which criminal law enforcement resources have been brought to bear on immigration enforcement, traditionally considered a civil matter. The US government claims these prosecutions have two purposes: to keep dangerous criminals from entering the United States and to deter illegal immigration in general. As detailed below, however, a close examination of who is being imprisoned for illegal entry and reentry suggests that many of the prosecutions are not meeting their purported goals.
Many of the people now being criminally prosecuted for illegal entry and reentry have no criminal history or were convicted in the past of only minor, nonviolent crimes. And, as Alicia’s comments above suggest, many are not likely to be deterred by the threat of prison: people seeking to join their children or other loved ones are not likely to simply give up. Meanwhile, the costs of the increased prosecutions are significant and growing. The costs include an estimated $1 billion annually in incarceration costs alone and lasting damage to the lives of migrants and their family members, tens of thousands of whom are US citizens or permanent residents.
This report is based on analyses of publicly available data from the US Sentencing Commission and other agencies, as well as 191 interviews with individuals charged with illegal entry or reentry, their families, other unauthorized migrants who have repeatedly entered the United States, criminal defense attorneys, immigration attorneys, prosecutors, judges, and representatives of humanitarian and advocacy organizations. In many cases, we corroborated details of individuals’ accounts with publicly available court records. This report was also informed by meetings with officials in the US Customs and Border Protection agency, and in two divisions within the US Department of Justice: the Civil Rights Division and the Executive Office of Immigration Review.
For years, federal prosecutors have claimed that prosecutorial resources for felony illegal reentry are focused on unauthorized migrants who pose a threat to public safety. In the past, a majority of people charged with felony immigration crimes indeed had a prior conviction for a serious felony. Data from the US Sentencing Commission reveals, however, that the criminal histories of defendants sentenced to federal prison under the “illegal entry offense” guideline has shifted dramatically over the past decade. In 2002, 42 percent had criminal convictions considered most serious by the Commission—such as a conviction for a crime of violence or a firearms offense—while only 17 percent had no prior felony convictions. By 2011, the proportion of defendants with convictions considered most serious had dropped to 27 percent, while the proportion of defendants with no prior felony convictions had increased to 27 percent.
The lack of selectivity in prosecution is exacerbated by the ways in which conviction for misdemeanor illegal entry and subsequent deportation can become a predicate for felony illegal reentry charges. Illegal entry and reentry prosecutions have grown along the US-Mexico border as part of US Border Patrol strategy to deter illegal immigration. Once convicted of illegal entry, including through a mass-prosecution program like Operation Streamline, a migrant who attempts to reenter the US illegally is more likely to be prosecuted for illegal reentry because he or she now has a criminal record. With each new crossing and arrest, the criminal sanction becomes increasingly harsh. While the maximum sentence for a first-time misdemeanor entry conviction is six months, the sentence for illegal reentry is enhanced by every prior criminal conviction, up to a maximum of 20 years for a prior aggravated felony conviction. As one criminal defense attorney stated, “There’s a class of people doing life sentences on the installment plan.”
There is limited evidence on the extent to which these prosecutions deter illegal immigration. Given the powerful economic and political “push factors” driving migration to the US, and the fact that US demands for migrant labor far exceed the number of available visas, it is reasonable to conjecture that the deterrent effect of criminal prosecution in this area would be less than in many other areas, at least for migrants who are desperate. Such prosecutions are particularly less likely to deter migrants, even repeat offenders, when they are motivated by very basic human needs such as the desire to reunite with children or other close family members or evade violence or persecution at home.
The increasing reliance on criminal prosecution in this context also raises serious human rights concerns. As Human Rights Watch has previously documented, US civil immigration law fails to adequately protect families and makes it nearly impossible for many who have been deported to reunite with their families legally in the United States. Recent surveys, as well as reports from humanitarian organizations along the border, indicate that a growing number of people seeking entry into the United States are not traditional migrants but former long-term residents seeking to return to their families. Increasingly, the US immigration system is splitting families through deportation and then subjecting the deported family member to potentially lengthy prison terms for trying to reunite with loved ones. The focus on criminal prosecutions also means that asylum seekers fleeing violence or persecution can face serious obstacles to obtaining the protection guaranteed by international refugee law ratified by the United States.
Although international law does not explicitly prohibit the use of criminal sanctions against unauthorized immigrants, United Nations human rights experts have urged the use of civil law, and strongly cautioned against using criminal law, to punish illegal entrants. The UN special rapporteur on the human rights of migrants has stated, “[I]rregular entry or stay should never be considered criminal offences: they are not per se crimes against persons, property, or national security.”
The breadth and scope of criminal prosecutions for illegal entry and reentry, moreover, have led to procedural shortcuts, including rapid-fire group trials in Operation Streamline, that imperil the due process rights of immigration defendants.
The considerable financial costs of criminally prosecuting unauthorized migrants also militate against the current prosecution-heavy approach. A September 2012 report estimated that incarceration costs alone for those sentenced for illegal entry and reentry reached $1 billion in fiscal year 2011. Defendants serving sentences for illegal entry and reentry are a source of the burgeoning federal prison population, and given overcrowding, many end up in costly facilities run by private prison companies. Other costs relating to criminal prosecution—including criminal defense attorneys, prosecutors, and more—add to the costs. Not surprisingly, a number of prosecutors, other law enforcement officials, and federal judges have criticized the huge reallocation of resources toward prosecuting people who do not pose a threat to public safety or national security, particularly when the civil immigration system has its own penalties for illegal entry and reentry.
Human Rights Watch acknowledges that all sovereign states have a legitimate interest in regulating entry into their territories. We recognize that states have a particular interest in deterring the illegal entry or reentry of persons who pose a threat to public safety. The US government has decided that this is best accomplished through criminal prosecution rather than just civil enforcement of immigration law. But the prosecutions of illegal entry offenses happening today are overbroad, reaching people who do not belong in prison, and are thus draining resources that could go to efforts to increase public safety and create a more secure, efficient, and humane immigration system.
As the Obama administration and Congress debate a potential overhaul of the country’s immigration laws, there is a danger that prosecutions and statutory penalties for these offenses will increase in the name of increased “border security.” But the US cannot afford simply more of the same. A program permitting legalization would be an important step in addressing the vulnerability of many migrants to abuse and the inequities of the current immigration system. But rights to family unity and to seek asylum, as well as to due process, will not be protected unless US policymakers also address the current misguided and costly overreliance on criminal prosecution in policing the border.
Prosecuting asylum seekers prior to adjudication of their asylum applications violates US obligations under international refugee law and should cease. And the significant impact criminal prosecutions have on unauthorized migrants seeking to reunite with children and other close family members, particularly where there is no evidence the migrants are dangerous, argues for applying civil rather than criminal immigration remedies and penalties. At the very least, the US government should take this opportunity to evaluate whether the existing emphasis on criminal prosecutions meets its intended goals, to limit the growth of such prosecutions (including by suspending Operation Streamline), and to ensure that US immigration practices are as respectful of fundamental human rights as they can be.
 Human Rights Watch interview with Alicia S. (pseudonym), Tijuana, Mexico, October 17, 2012.
 Syracuse University, Transactional Records Access Clearinghouse (TRAC), “Going Deeper” tool, Prosecutions for 2011, http://tracfed.syr.edu/index/index.php?layer=cri (accessed May 10, 2013). See also Migration Policy Institute, “Immigration Enforcement in the United States: The Rise of a Formidable Machinery,” January 2013, http://www.migrationpolicy.org/pubs/enforcementpillars.pdf (accessed April 7, 2013), p. 10.