Over the last two decades, the federal government increasingly has utilized the criminal legal system to punish people for immigration violations. Particularly on the Southwest border, federal officials have vigorously prosecuted migrants either for entering the United States without permission or for reentering the country without permission after a prior deportation or removal order (commonly referred to, respectively, as “illegal entry” — although the statutory term is “improper entry” — and “illegal re-entry” of people previously deported; or collectively as “entry-related offenses”). Tens of thousands of migrants and asylum seekers are subjected to criminal prosecution for these crimes every year, in addition to the civil consequences they face under immigration law. Prosecutions for entry-related offenses reached an all-time high of 106,312 in Fiscal Year (FY) 2019, near the end of the first Trump administration, before plummeting to 14,297 in FY 2021 after the government began in March 2020 rapidly expelling most people crossing the border rather than referring them for prosecution. With the start of Trump’s second term in office, prosecutions for criminal violations of immigration law have risen significantly and expanded to new categories of offenses which have largely gone unprosecuted for generations.
The government’s approach to charging migrants with entry-related offenses imposes heavy costs on both the migrants themselves and the federal government. The prosecution of individuals fleeing persecution or torture harms family members with whom the individual traveled and was apprehended and can lead to family separation.
With high conviction rates for these federal offenses, many migrants are subjected to mandatory incarceration in federal prison for months or longer. For these individuals, a conviction can impede current and future attempts to migrate lawfully or obtain asylum. For the federal government, such prosecutions are an extremely costly use of law-enforcement resources and have no demonstrated deterrent effect on future migration.
This overview provides basic information about entry-related offenses, including the significant costs incurred by the government conducting these prosecutions, the individuals who are subjected to them, and how the government’s rationale for carrying them out is not supported by the data.
Crimes for Which Migrants are Prosecuted
Physical presence in the United States without proper authorization is a civil violation, rather than a criminal offense; as the Supreme Court itself has observed, “as a general matter, it is not a crime for a removable [noncitizen] to remain present in the United States.” This means that the Department of Homeland Security (DHS) can place a person in removal (deportation) proceedings and can require payment of a fine, but the federal government cannot charge the person with a criminal offense unless they are apprehended while in the act of entering without permission, have previously been ordered deported and reentered in violation of that deportation order, or have been ordered deported and willfully failed to depart. Likewise, a person who enters the United States lawfully and stays longer than permitted may be put in removal proceedings but cannot face federal criminal charges based solely on this civil infraction.
You can read the full article at the American Immigration Council.