The Biden administration is ramping up the use of criminal prosecutions to punish migrants arriving at the U.S. border, despite decades of evidence showing these prosecutions cause widespread harm and are ineffective toward the government’s stated goal of deterring future migration. Largely unused before the 1990s, these prosecutions are layered on top of the already punitive detention, surveillance, and expedited removal programs migrants face when attempting to enter or re-enter the U.S. without authorization.
Prior administrations have unleashed waves of prosecutions against migrants as part of a failed project to impose cruelty and suffering as a consequence for people seeking to enter the United States without prior permission. But these programs have failed to stop people from crossing the border, and instead have caused thousands of deaths, separated countless families, and undermined asylum rights.
Under the Biden administration, prosecutions for immigration violations are again on the rise. New Justice Department data released this month shows the Biden administration charged 1,496 people for unlawful entry (8 U.S.C. § 1325) and 6,965 for unlawful reentry (8 U.S.C. § 1326) in district courts in 2022. In April 2022 alone, CBP referred a record 2,015 individuals for criminal prosecution, the highest month since the start of the pandemic. The increased use of such prosecutions flies in the face of the administration’s commitments to racial equity and to a more humane approach to migration policy.
The devastating consequences of deterrence programs came into full view with the recent tragedy in San Antonio, Texas, where 53 migrants were found dead after attempting to enter the U.S. in the back of a tractor-trailer. Subsequent commentary from human rights experts emphasized the urgent need to shift away from programs that block lawful pathways to entry or push people toward dangerous terrain, emphasizing the deadly effect of failed deterrence tactics.
This commentary addresses some of the pressing concerns related to prosecutions for immigration violations. A renewed reliance on prosecutions will lead to wasted resources and severe abuses.
FACT 1: Immigration Prosecutions are Not Effective Toward the Stated Goal of Deterring Future Migration
Border patrol agents refer people for prosecutions as part of the government’s “consequence delivery” paradigm, which guides CBP’s options for punishing people apprehended at the border. The consequence delivery model was created to reinforce the existing “Prevention Through Deterrence” strategy, launched in 1994 to concentrate enforcement in parts of the southern border so that people migrating were corralled into what border patrol officials called “mortal danger.” The Consequence Delivery System program as it exists today was created by the Obama administration in 2011, adding layers of punishment to existing border fortifying measures. These policies are all designed with one goal in mind - punishing people for the act of migration with such cruelty that the harsh measures themselves will deter future migration. While ramping up prosecutions for immigration violations, the Biden administration is ignoring one key fact: criminal prosecutions and other so-called deterrence policies do not in fact deter migration.
Historic migration data tells us plainly that attempts to deter migration through prosecutions and other punitive measures are simply ineffective. As one scholar puts it, the “‘deterrence’ rationale” behind punitive border policies “has proven to be wholly erroneous and unsound.” The data is clear: deterrence-based policies operating in various iterations since 1994 have not resulted in a reduction of overall numbers of unauthorized migration.
In 2015, a collaborative of U.S. and Mexico-based researchers conducted the Migrant Border Crossing Study, in which 1,110 people recently deported to Mexico from five cities across the southern border were surveyed. The results, published in the Journal of Migration and Human Security, showed that “deterrence by arrest, incarceration and removal is largely ineffective.” The majority of respondents, in fact, expressed that they intended to return to the United States sometime in the future, despite having themselves endured the “consequence delivery” programs in effect at the border at that time.
Another study conducted in 2018 focused on southwest border migration data as correlated with the Obama administration’s use of family detention and the Trump administration’s family separation policy. Prosecuting people for immigration violations was the premise of the "Zero-Tolerance" program designed to separate families, and both family detention and family separation were presented by U.S. officials as justified deterrence tools. However, a series of models run by scholar Tom Wong found “no statistically significant relationship” between either the 2014 expansion of family detention or the 2017 Zero-Tolerance pilot and the “monthly number of U.S. Border Patrol apprehensions.” Even Trump administration officials acknowledged this fact, admitting internally during the height of family separation that it was not having the desired deterrent effect.
The U.S. government has never successfully made a valid evidence-based case that immigration prosecutions or any CDS program work as a deterrent. In 2015, the DHS Office of the Inspector General (OIG) determined that Border Patrol was not accurately measuring the effect of mass prosecutions as a deterrence measure. In January 2017, the Government Accountability Office (GAO) reported that weaknesses in CBP’s methodology for calculating recidivism rates limited its usefulness in assessing CDS’ effectiveness.
We know from our work with immigrant communities that punitive border policies do not deter people who are fleeing violence or seeking to reunite with their families, populations making up the vast majority of those facing prosecution. In 2020, NIJC conducted a survey of people facing immigration-related prosecutions and found that more than 80 percent of those interviewed had family members in the U.S. with whom they were trying to reunite. Thirty-three percent were trying to reunite with their children. These findings are consistent with previous studies, including the 2015 Migrant Border Crossing Study discussed above and a 2015 U.S. Sentencing Commission report which determined that nearly 50 percent of people sentenced for unlawful reentry had at least one child living in the U.S.
FACT 2: Punishing Migrants with Prosecutions has Deadly Consequences
Regardless of whether prosecutions and other punitive border programs effectively deter migrants, they inevitably and tragically cause countless deaths and untold human suffering.
For long-time observers, the July 2022 deaths in San Antonio were part of a trend of misguided immigration policies. For years, human rights organizations have warned about the rights violations resulting from deterrence oriented border enforcement, including immigration prosecutions. Immigration detention and prosecutions have been used, according to experts, to intentionally make people “suffer, as an example to others who might consider pursuing a similar path.” Under this inhumane reasoning, the capacity for inflicting pain on migrants has no limits.
Migration scholars Geoffrey Alan Boyce and Samuel Norton Chambers explain as follows:
…[T] architecture of deterrence is designed to fail in one direction only: toward more remote and difficult routes of travel. As a result, the government assumes that a growing proportion of migrants will perish; but it is hoped and intended that these deaths, alongside an increase in other kinds of hardship and difficulty associated with the journey north, will ultimately carry a deterrent effect… [O]ur findings lend support to the conclusion of numerous international investigators and human rights bodies, that the United States government bears ultimate moral, legal, and practical responsibility for these deaths.
The Trump administration’s Zero-Tolerance program revealed to a stunned American and global public the dark consequences of immigration prosecutions. Trump administration advisors devised the family separation program so that border patrol agents could tear children from their parents to send them to be prosecuted in order to scare would-be asylum seekers from seeking safety in the U.S. Recently disclosed documents show that Trump administration officials, including current Immigration and Customs Enforcement (ICE) Acting Director Tae Johnson, sought to slow reunifications of parents with their children to inflict more trauma and maximize the desired deterrent effect. The Biden administration rescinded the Trump administration’s Zero-Tolerance directive, and CBP issued a memo instructing CBP officers to not separate families for unlawful entry prosecutions. However, the policy has exceptions, carving out circumstances in which CBP can still separate families, including when parents are referred for unlawful reentry prosecutions.
Increasing the use of prosecutions against migrants risks fueling more separations, suffering and death. Such prosecutions obstruct the right to asylum, deny due process protections, and lead to dehumanizing and racist treatment. In a comment filed in January 2022, NIJC discussed the horrific abuses resulting from such prosecutions, including the September 2021 death of an asylum-seeking father named Edgar, who was prosecuted for unauthorized reentry and murdered in Tijuana, after he served four months in prison in the U.S. for the conviction.
FACT 3: The Laws Used to Prosecute Migrants Were Passed with Racist Intent and are Discriminatory in Application
The laws used today to prosecute people for entering and reentering the United States without permission were explicitly passed to further racist and white supremacist ideology. Enacted at the height of the eugenics movement, the “Undesirable Aliens Act of 1929” was conceived, drafted, and enacted by white supremacists who sought to exclude what they viewed as the “Mexican race.”
In August 2021, a federal District Court judge in Nevada issued a landmark decision in a case called U.S. v. Carrillo-Lopez finding that Section 1326 (the unlawful reentry statute) is unconstitutional, as it was passed with racial malice and is applied in a discriminatory manner. Indeed, an analysis of the U.S. Justice Department data on charges brought under 8 U.S.C. § § 1325 and 1326 in recent years shows that the laws continue to fall disproportionately on Latinx populations. Further, an examination of U.S. Sentencing Commission data illustrates the disparate conviction and sentencing rate for Latinx individuals, which is compounded as individuals convicted of Section 1326 receive disproportionately harsher sentences and punitive terms in Bureau of Prisons (BOP) facilities.
In this case and others challenging migrant prosecutions on the grounds of racial equity, NIJC, along with the National Immigration Project of the NLG (NIPNLG), and 22 legal advocacy and rights organizations, filed a friend-of-the-court brief, telling the stories of 13 people subjected to migrant prosecutions in recent years and the harms they endured.
FACT 4: Migration-related Prosecutions Waste and Divert Resources
Prior to the COVID-19 pandemic, immigration-related prosecutions made up around 60 percent of all criminal prosecutions in federal courts. Referrals for unlawful entry prosecutions dropped sharply with the advent of Title 42 expulsions, but the Biden administration continued to rely on unlawful reentry prosecutions, charging 20,507 people in district courts with unauthorized re-entry under Section 1326 from January 2021 through June 2022. Now, the renewed focus on immigration prosecutions will further waste taxpayer dollars and siphon government resources from other priorities.
Increasing the reliance on prosecutions for migration-related offenses has devastating human as well as financial costs. The price tag of mass incarcerations, on top of appointed public defenders, judicial resources and administrative court costs, has for years been estimated at millions of dollars per month. While there is no precise accounting for total costs, between detention costs and money for defense attorneys, prosecutors, and additional immigration and court personnel, the cost of migrant prosecutions was estimated in 2012 to exceed a billion dollars per year.
Judges and attorneys along the border maintain that the heavy emphasis on prosecuting entry-related offenses expends precious resources that otherwise would be devoted to prosecuting other cases. U.S. Attorneys warned in 2018 during the height of family separation about the fiscal burden associated with prioritizing the prosecutions of misdemeanor unlawful entry cases, warning that more serious cases all “take a back seat to these lesser, weaker misdemeanor cases.” The Government Accountability Office (GAO) found in 2019 that agencies were forced to divert significant resources to support the prosecution priorities implemented by the Trump administration in 2017 and 2018, including personnel and physical space.
FACT 5: The U.S. Must Adopt a Humane Approach to Border Processing
A broad spectrum of U.S. civil, human, and immigrant rights groups have long called for an end to immigration prosecutions. In November 2020, a coalition of more than 100 organizations working on criminal justice reform called on the Biden administration to suspend criminal prosecutions for unlawful entry and reentry. NIJC also joined more than 160 civil society organizations in February 2021 calling on President Biden to uphold past commitments to end mass prosecutions for immigration-related offenses that deny individuals their right to a fair hearing and due process. Removing the threat of criminal penalties for unlawful entry and reentry would result in far fewer people subjected to the criminal justice system, would dramatically reduce the burden on criminal courts and federal prosecutors, and would mitigate harm inflicted on immigrant communities.
Migration-related prosecutions are unnecessary, ineffective toward the stated goal of deterrence, and cause great suffering including family separation. In anticipation of the end of the Title 42 expulsion policy, the United States has the legal and moral obligation to adopt humanitarian border processing measures, not cruel enforcement practices rooted in the failed strategy of deterrence.
The laws used to prosecute entry and reentry violations were enacted with a white supremacist animus nearly a century ago, and continue to have a discriminatory impact on Black and Latinx communities. Committing to de-prioritizing such prosecutions is an essential step toward ending systemic injustices, reducing mass incarceration, and protecting fundamental human rights.
Jesse Franzblau is a policy analyst at NIJC.