Congress Should Reject More Family Separations & Mass Incarceration

The Trump administration has prioritized and drastically increased the use of federal prosecutions for immigration-related offenses, including for simply entering the United States or reentering after removal without permission. Prosecutions for such offenses are layered on top of the punitive civil immigration detention and deportation processes, add barriers to asylum access, and are rooted in racist laws plagued with due process and fairness concerns. Under the first Trump administration, these prosecutions were behind the family separation crisis and filled prisons to the enrichment of private prison contractors.

Now, Congress is proposing legislation that would drastically fuel mass incarceration by increasing penalties for those charged for unauthorized entry (8 U.S.C. § 1325) and reentry (8 U.S.C. § 1326) into the United States. The “Stop Illegal Entry Act” of 2025 expands on a bill (called Kate’s Law, or “Stop Illegal Reentry Act”) that has been introduced several times over the years since 2015 as part of a cynical effort to exploit personal tragedies to demonize immigrant communities.

Congress has also used the budget reconciliation process to funnel billions of dollars towards the increase in immigration related prosecutions. The massive reconciliation bill signed into law on July 4th includes funds to supercharge immigration enforcement, including: $3.3 billion to the Department of Justice that can be used to prosecute and imprison people charged with immigration related prosecutions, $5 billion for the Bureau of Prisons (BOP) for imprisoning more people sentenced with immigration offenses, over $11 billion for Customs and Border Protection (CBP) that could go towards referring people for immigration prosecutions, on top of the $45 billion for further expansion of immigration detention, including family detention. The bill also includes a hateful provision mandating the jailing of immigrant children together with their parent(s), if the parent is charged with the misdemeanor offense of unauthorized entry.

This policy brief addresses how the proposed “Stop Illegal Entry Act” threatens to line the pockets of the private prison industry with enormous cost to taxpayers. Combined with the influx of billions for border militarization and enforcement, we could see a rapid increase in prosecutions that have had a deadly and costly impact over the years.

We urge members of Congress to oppose the “Stop Illegal Entry Act,” and take measures to conduct strict oversight and restrict efforts to increase prosecutions that overwhelm the courts, violate the rights of asylum seekers, and fuel rights abuses by Immigration and Customs Enforcement (ICE) agents.

What Congress is proposing

The “Stop Illegal Entry Act” would steeply increase the maximum sentences that can be imposed for the offenses of unauthorized entry and reentry. It also imposes mandatory minimums for unauthorized entry and reentry for people with certain past criminal convictions, including a sentencing range of 5 years to life for unauthorized entry with a subsequent conviction of an offense punishable by more than a year, and a sentencing range of 10 years to life for unauthorized reentry with a past conviction for a felony or aggravated felony.

It is important to note that “aggravated felony” is a term of art under immigration law that covers dozens of offenses and need not be “aggravated” nor a “felony” and for which the person already completed their sentence. There are also a wide array of offenses that are considered felonies within the United States, including many offenses which are so minor that they typically do not otherwise trigger immigration consequences. The bill would impose an expansive system of double punishment on immigrants; for example, a person denied admission based on broad security grounds who tried to re-enter to be with their family could be subject to a mandatory ten-year sentence. 

Immigration prosecutions overwhelm the courts, waste taxpayer funds, and enrich private prisons.

The renewed focus on immigration prosecutions will further waste taxpayer dollars and siphon government resources from other programs. Immigration violations are already over-prosecuted and harshly punished — in fiscal year 2024 alone, federal prosecutors charged 29,773 persons with entry-related crimes. The number of people prosecuted for unlawful entry and reentry has soared to 40,594 in the first nine months of fiscal year 2025. Increasing the number of prosecutions and enhancing penalties will inundate federal courts and exacerbate mass incarceration with huge costs.

Prosecutions for immigration-related offenses already are a drain on federal courts, making up around 38 percent of all federal prosecutions in district court, more than any other category of federal crimes. The Trump administration has already ordered a major shift in Justice Department resources toward immigration-related prosecutions. A January 21st memo ordered the U.S. Attorney’s Offices to pursue more charges for immigration-related offenses, diverting staff and resources dedicated to narcotics and violent crime prevention. Deputy Attorney General Todd Blanche also issued a March 6th memo surging resources to border districts and ordering AUSA’s to “continue to charge more” 8 U.S.C. §§ 1325 and 1326 cases. The same memo incentivizes federal prosecutors to target local law enforcement, states, and advocacy groups who support and protect immigrant rights (under the bracket of attacks on “sanctuary” jurisdictions), building on Attorney General Pam Bondi’s February 5th memo.

ICE and CPB agents already refer nearly all immigration-related prosecutions, and 97 percent of people charged with immigration related offenses plead guilty instead of taking their case to trial. Guilty pleas are largely agreed to out of necessity for people who seek to shorten their time in pre-trial custody, decrease the likelihood of a long prison term, and pursue their asylum claims or other protection.

The average sentence for all individuals sentenced for unauthorized reentry is around 12 months, and 98 percent of people sentenced receive prison time. Introducing 5- and 10-year mandatory minimums for people charged with entry or reentry offenses would result in defendants facing this charge having no incentive to take a plea deal. People facing these charges would instead go to trial. The impact of such a result on federal court dockets would be hard to overstate, particularly in border districts where Section 1326 cases comprise over half their total caseload. The estimated total cost of imprisonment of a person sentenced to the 20-year maximum for unlawful reentry is $853,440. These costs are borne by U.S. taxpayers and stand to grow exponentially if the “Stop Illegal Entry Act” passes.

If enacted, this bill would also overwhelm the Federal Bureau of Prisons, which already fails to provide humane conditions amidst chronic shortages of staff and resources. The U.S. Sentencing Commission estimated in 2017 that the “Stopping Illegal Reentry Act” would expand the federal prison population by nearly 60,000 prisoners over five years, a nearly 40 percent increase from the current population. The Justice Department estimated the annual cost of federal imprisonment in the United States was above $42,000 per person in FY 2022.

The costs of passage of this bill to U.S. taxpayers would be monumental, and would be a huge boost to the private prison industry, including to companies with ties to cabinet-level officials that spend millions lobbying Congress. Notably, Attorney General Pam Bondi is a former lobbyist for the private prison company GEO Group, which donated over a million dollars alone to Trump’s reelection. The CEO of the other major private prison company CoreCivic has said publicly he expects to see the “most significant growth” in his company’s history over the next several years. With the Trump administration lifting the Biden-era ban on private prison contracts, these companies are looking to cash in on both new privately operated prisons as well as new ICE detention contracts.

Increasing immigration prosecutions violate asylum and children’s rights, while fueling ICE’s terror campaign.

Immigration-related prosecutions have been used to separate families and violate the United States’ national and international legal obligations to provide asylum protection to migrants seeking refuge. When the government refers parents or guardians for criminal prosecution, it leaves the children they are traveling with alone in the civil immigration system — a process the first Trump administration used to separate and traumatize thousands of immigrant families. With a new prioritization for such prosecutions, bolstering funding for Sections 1325 and 1326 referrals and prosecutions would mean more criminalization and imprisonment of asylum seekers in violation of international legal obligations.

Increasing the prioritization of immigration-related prosecutions will also fuel ICE targeting of long time community members. In the first weeks following the Trump administration’s renewed prioritization of immigration prosecutions, for example, there were already ICE arrests of people flagged for potential unlawful reentry prosecution. This follows a pattern of ICE practice of carrying out surveillance and targeting people across the country to refer them for unlawful reentry charges. While the numbers show that the majority of Section 1326 charges occur at the border, a significant number of cases impact people who have been in the U.S. for years well after they re-entered the country. From FY 2024 to 2025, the Justice Department charged 6,394 out of the 40,877 total people with Section 1326 in non- Southern border districts throughout the interior of the country. Such prosecutions take up significant resources — over 28 percent of Delaware’s caseload in FY 2024, for example, consisted of Section 1326 prosecutions.

ICE also relies on Section 1326 cases to investigate workplaces and carry out raids. During the 2019 Mississippi raids, among the largest in U.S. history, for example, ICE arrested 680 poultry workers and referred dozens of them for Section 1326 prosecution. Workers targeted in that raid won a lawsuit over rampant sexual harassment and racial discrimination, but continued to be impacted by the Section 1326 charges long after the raids took place.

Congress should not give the Trump administration more ammunition for mass incarcerations and ICE abductions.

Prosecutions for immigration offenses are layered on top of the punitive civil immigration detention and deportation processes, add barriers to asylum access, and are rooted in racist laws plagued with due process and fairness concerns. Increasing the scope and severity of immigration-related prosecutions is bad policy in every sense, ballooning the U.S. prison population solely for corporate profit and political gain. Congress should reject any efforts to waste precious public dollars or enhance penalties for such prosecutions and ensure government resources are going towards communities in need and not mass incarceration.

For more information, contact: Jesse Franzblau, senior policy analyst, National Immigrant Justice Center; Nithya Nathan-Pineau, policy attorney & strategist, Immigrant Legal Resource Center; Ann Garcia, senior staff attorney, National Immigration Project.

Additional Resources:

Commentary: “NIJC condemns new federal push to further criminalize migration at the border” (National Immigrant Justice Center) (May 2024)

Fact Sheet: “How Mandatory Minimums Perpetuate Mass Incarceration and What to Do About It” (Sentencing Project) (February 2024)

Explainer: “The Ongoing Harms of Trump-Era Mississippi Raids and Immigration Prosecutions” (Immigrant Alliance for Justice and Equity, National Day Laborer Organizing Network, National Immigration Project, and the National Immigrant Justice Center) (January 2024)

Commentary: “Five Ways That Immigration Prosecutions Are Ineffective and Deadly” (National Immigrant Justice Center) (July 2022)

Fact Sheet: “Immigration Prosecutions by the Numbers” (National Immigrant Justice Center & National Immigration Project) (November 2022)

Press Release: “Federal Court to Examine the Racist Origins of a Law the Biden Administration Plans to Use to Block Migrants at the Border” (National Immigrant Justice Center) (December 2022)

Report: “Rooted in Racism: The Human Impact of Migrant Prosecutions” (National Immigration Project) (December 2021)

Report: “A Legacy of Injustice: The U.S. Criminalization of Migration” (National Immigrant Justice Center) (July 2020)