This report documents the negative impact of illegal entry and reentry prosecutions, which have increased 1,400 and 300 percent, respectively, over the past 10 years and now outnumber prosecutions for all other federal crimes. Over 80,000 people were convicted of these crimes in 2012, many in rapid-fire mass prosecutions that violate due process rights. Many are separated from their US families, and a large number end up in costly and overcrowded federal prisons, some for months or years.
Non-citizens living or working in the United States without authorization are subject to civil penalties, such as deportation and fines. In addition, those who entered the US illegally can also be criminally prosecuted before being deported. A non-citizen who enters or seeks to enter the US at a place other than a port of entry, or by fraud or false documents, commits the federal misdemeanor offense of illegal entry. A non-citizen who reenters or is found in the United States without authorization after deportation commits the federal felony offense of illegal reentry. Note that the crime of reentry requires that non-citizens have been formally removed before reentering the country; they cannot be prosecuted for the crime if they left the country voluntarily.
Illegal entry is punishable by up to six months in prison, with a subsequent conviction for illegal entry punishable by up to two years. The maximum penalty for illegal reentry is 20 years in prison, applicable if the defendant reenters after a prior conviction for an “aggravated felony” (a term covering both relatively minor and nonviolent offenses such as shoplifting or working with a fake ID, as well as serious, violent ones). Lower maximum sentences apply to reentry after prior convictions for lesser felonies and misdemeanors.
Once convicted of illegal entry, a migrant who attempts to reenter the US illegally is more likely to be prosecuted for illegal reentry, since he or she now has a criminal record. And with each new crossing and arrest, the criminal sanction becomes increasingly harsh.
Prosecutions for illegal entry and illegal reentry have grown exponentially over the past decade and are now the two most prosecuted federal crimes in the United States, outnumbering other frequently prosecuted federal offenses such as drug, firearm, and white-collar crimes. In 2012, there were 48,000 prosecutions for illegal entry and 37,000 for illegal reentry, compared with 3,000 and 8,000, respectively, in 2002. According to a recent US government report, in 2010 immigration offenders accounted for approximately 30 percent of all inmates entering the federal prison system.
In the past, the US government usually prosecuted people only if they had serious prior criminal convictions. Increasingly, though, the people being prosecuted have minor criminal histories or none at all. Many are trying to reunite with their families in the US. Others are fleeing violence or persecution abroad and seeking asylum.
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 as the US government has sought to “get tough” on unauthorized immigration. The stated goal of these prosecutions is twofold: to keep dangerous criminals from entering the US and to deter illegal immigration.
Our examination of who is being prosecuted for illegal entry and reentry suggests that a significant number of these prosecutions are not meeting the purported goals. First, many of the people being prosecuted pose no threat to public safety or national security. In fact, a large number have minor criminal histories or none at all. In 2011, the proportion of defendants with prior convictions considered most serious—such as a crime of violence or a firearms offense—was 27 percent, a decrease from 42 percent in 2002. At the same time, 27 percent in 2011 had no prior felony convictions at all, an increase from to17 percent in 2002.
A number of law enforcement officials have noted that the increasing criminal prosecution of unauthorized immigrants with minor or no prior criminal histories has diverted resources from more pressing law enforcement and border security concerns. As a former attorney general of Arizona told Human Rights Watch, “I never could understand why so much was being put into these particular individuals, who were not our high-level criminals…. [I]t’s a use of resources disproportionate to the threat.”
Second, there is limited evidence to support the claim that these prosecutions deter illegal immigration. Many of the migrants who enter or reenter the US unlawfully do so for reasons often unaffected by traditional notions of deterrence, such as the desire to reunite with family in the United States. As Magistrate Judge Bernardo Velasco told Human Rights Watch, “The thought [that] prosecution will be effective when their entire family is in the US is questionable.”
It’s true thatthe number of unauthorized migrants apprehended in recent years near the southern border of the US has decreased significantly. What is not clear is how much this is due to stepped-up prosecutions and how much to other factors. Apprehensions are also down significantly in southern California, where prosecutions are used comparatively infrequently.
The breadth and scope of immigration prosecutions have led to procedural shortcuts, including rapid-fire group trials that imperil the rights of immigration defendants to present an adequate defense. Not by accident, nearly all defendants charged with these offenses plead guilty.
For example, under the federal program known as “Operation Streamline,” introduced in 2005, a single proceeding may include two dozen defendants or over 100, and the stages of a federal criminal court case that normally take months are truncated into a single day, sometimes less. And while all defendants are appointed a defense lawyer, the amount of time they spend with their attorney before they plead guilty may be as little as 5 to 10 minutes.
But even outside of Operation Streamline, prosecutors have created a “Fast-Track” early disposition program that results in tremendous pressure on defendants to accept the government’s offer of a plea agreement and waive important rights.
A September 2012 report estimated incarceration costs alone for those sentenced for illegal entry and reentry reached $1 billion in 2011. Other costs relating to criminal prosecution—including criminal defense attorneys, prosecutors, and more—add to the high financial costs. The current level of prosecutions is so straining the federal courts that in 2011, the chief judge of the US District of Arizona declared a judicial emergency.Individuals serving sentences for illegal entry and reentry are an important source of the burgeoning federal prison population.
Human Rights Watch acknowledges that all sovereign states have a legitimate interest in regulating entry into their territories, and particularly in deterring the illegal entry or reentry of persons who pose a threat to public safety. But the prosecutions of illegal entry offenses happening today are overbroad, especially when one considers that immigration authorities already have the power to deport unauthorized immigrants and that the prosecutions are reaching people who do not belong in prison. Prosecutions are thus draining resources that could go to efforts to increase public safety and create a more secure, efficient, and humane immigration system.
Human Rights Watch strongly supports immigration reform for many reasons. However, the immigration reform plan proposed by the Senate’s “Gang of Eight” would increase immigration prosecutions, specifically in the Tucson, Arizona sector, to as many as 210 a day from the current 70 a day. And it would substantially raise the maximum penalties for illegal entry and for certain categories of people convicted of illegal reentry.
It also includes a provision that would allow some people who have been deported to apply for legalization if they have an immediate family member who is a US citizen or permanent resident, or would otherwise be eligible because they came to the US as a child. But the provision does not go far enough, as it generally excludes people with criminal convictions no matter how minor or old the offense. These people will continue to be barred from living with their families in the US, and if they try to reenter illegally, they could face prosecution and increased time in prison.
The US government should amend the immigration law to better protect immigrants’ rights to family unity and to seek asylum, as well as to due process. Among other steps, the US government should:
- consider ending the penalization of illegal entry and reentry as crimes, and instead treat them just as violations of civil law with ensuing civil penalties;
- cease authorizing, funding, or expanding Operation Streamline and similar programs that facilitate mass prosecutions and undercut due process rights of those charged with illegal entry offenses;
- enact national guidelines for the exercise of prosecutorial discretion in cases in which defendants in immigration cases have extenuating circumstances, such as ties to US citizen or permanent resident family members or fear of violence and persecution;
- revise sentencing guidelines to ensure that the most serious sentences are imposed on those with recent convictions for serious, violent felonies; and
- allow non-citizens whose deportations under existing law bar them from returning to the United States to apply for waivers of these bars based on evidence of strong ties to US citizen or permanent resident family members.
Current US policy fails to adequately protect the internationally recognized right to family unity. On the contrary, the US immigration system is increasingly splitting families through deportation and then subjecting deported family members to potentially lengthy prison terms for trying to reunite with loved ones.
As noted above, the procedural shortcuts necessitated by the breadth and scope of criminal prosecutions for illegal entry and reentry—such as the rapid-fire group trials in Operation Streamline—imperil the due process rights of immigration defendants.
The focus on criminal prosecutions also means that asylum seekers fleeing persecution can face serious obstacles to obtaining refugee protection and can be punished for seeking asylum, in violation of international refugee law.