U.S. immigration law criminalizes immigrants, refugees, and asylum seekers through a series of unjust laws and increasingly harsh penalties imposed not only on those entering the United States in the hopes of a better life, but on those members of the community without citizenship who have also endured mistreatment and racial profiling in the criminal legal system. The punishment for these crimes includes incarceration and deportation, both of which tear communities and families apart. The Trump administration’s abuses have exposed serious injustices long embedded in U.S. immigration and criminal legal systems.
NIJC has represented people caught in these legal traps for many years, and is committed to decriminalizing immigration by working in partnership with immigrant and civil rights advocates and directly impacted communities to end prosecutions for entry and reentry into the United States, and ensure that all members of the community have access to due process and equal justice.
The United States’ federal immigration law criminalizes immigrants in numerous and varied ways, including:
- Immigration laws enacted in 1996 create double-punishment for immigrants with criminal records
- Sections 1325 and 1326 of the U.S. Code make it a federal crime to enter or reenter the U.S. without authorization
Such laws have fueled the mass incarceration of communities of color, torn families apart, and caused severe harm to communities by subjecting thousands of people to detention and deportation.
Ending Unjust Double-Punishment:
Regardless of status, immigrants are frequently unjustly and doubly penalized in their interactions with the criminal legal system. An ever-growing patchwork of laws impose harsh penalties on immigrants who have been involved in the criminal legal system, including the possibility of detention without the opportunity to seek bond and automatic deportation to dangerous or unfamiliar countries. When combined with discriminatory, racist policing practices that target communities of color, these laws put immigrant communities at constant risk of detention, deportation and family separation.
NIJC client Fernando, for example, was convicted on drug possession charges and served 3 months of jail time. Instead of allowing him to reunite with his family after his incarceration, ICE officials waited for Fernando’s release and immediately put him into deportation proceedings. It took another year of separation from his family, four times as long as his sentence, for Fernando to be released from detention and reunite with his family.
Immigration laws that criminalize migration and unfairly punish those who have interacted with the criminal legal system separate families and shatter communities at every stage in the immigration process. Many of the family separations that continue to occur at the border are children removed from parents accused of criminal activity, with little to no requirements on the government to even provide justifications for the separations. Farther from the border, laws that incentivize harsher punishments for non-citizens, including deportation, regularly separate families by sending mothers and fathers into permanent exile.
Sections 1325 and 1326 of Title 8 of the U.S. Code make it a federal crime to enter or reenter the United States after a deportation or removal order without proper authorization. These laws are harmful, costly, and discriminatory in their origin and application. The laws stem from a dark period of xenophobic history when lawmakers influenced by eugenicists sought to criminalize the act of migration in the 1920s. The Trump administration has weaponized these laws to demonize immigrants and tear families and communities apart.
Migration-related offenses are the most prosecuted federal crimes in the country. These prosecutions are conducted in mass hearings that are a mockery of due process. The Justice Department bragged that it prosecuted more people for immigration offenses in FY 2019 than the last 25 years: 25,426 with felony illegal re-entry; and 80,866 with misdemeanor improper entry into the country.
The Executive Branch has broad authority to decide how federal immigration law and federal criminal codes are enforced. In Fiscal Year 2018, the Department of Justice charged 85 percent more immigrants with unlawful entry than the year prior, and increased felony reentry prosecutions by over 38 percent. As long as they remain on the books, laws that criminalize migration will fuel the unjust incarceration of immigrants and leave children permanently scarred by the trauma of separation.
The government wastes vast resources on federal criminal prosecution and incarceration of immigrants. U.S. Marshals have reported to Congress that significant costs are associated with zero tolerance implementation of migration related prosecutions, with court operations increasingly costly and immigrants languishing for longer and longer periods in U.S. Marshals custody. The incarceration costs alone for improper entry and re-entry prosecutions have cost taxpayers more than $7 billion over the last decade. Most of that spending went to powerful private prison companies.
Migration related prosecutions are also used to make felons out of long-time U.S. community members for merely violating immigration laws. NIJC client James came to the United States as a child with his parents, and lived here for 20 years. After a traffic stop, he was turned over to ICE, who coerced him into signing a voluntary return to Mexico, where he became a victim of cartel violence. When James tried to return to safety and the life he had known in the U.S., he was charged with unlawful entry under 8 U.S.C. § 1325.
- NIJC Commentary, “Decriminalizing Migration: Challenging The Abusive Practice Of Migrant Prosecutions” (December 2019)
- NIJC Policy Brief, “Decriminalizing Migration: Ending Prosecutions for Border Crossing Violations” (July 2019)
- NIJC Policy Brief, “Policy Brief | The U.S. Government’s Systemic Separation Of Immigrant Families” (October 2018)
- NIJC Transparency Project
- New Way Forward Section-by-Section analysis (November 2019)
- New Way Forward One-Pager (June 2019)
- New Way Forward legislation & list of co-sponsors (December 2019)
- Immigrant Justice Network: New Way Forward Campaign & Stories
- The New Way Forward Act would roll back harmful immigration laws that have led to racial profiling and disproportionately resulted in the incarceration, deportation, and destruction of families of color and immigrant communities. This Act proposes to:
- Limit deportations for convictions that result from enforcement that disproportionately targets communities of color
- Move away from “mandatory” deportation and detention, and instead allow immigration judges to consider a person’s individual circumstances during deportation proceedings—such as their contributions to their community, time they have already served, and changes in behavior
- Ban for-profit immigration jails and end federal prison sentences for those convicted under 8 U.S.C. § 1325 and 1326 prosecutions
- Repeal the provisions of the federal immigration law that criminalize irregular border crossing and reentry (8 U.S.C. § 1325 and 1326)
- Allow independent federal judges to review certain decisions of immigration judges that immigration laws passed in 1996 removed from judicial oversight
- End 287(g) agreements and all mandatory collaboration between local police and ICE agents in deportations and detentions