Racist immigration prosecutions block asylum access and separate families

The Biden administration announced today plans to increase its reliance on criminal prosecutions for immigration violations. This announcement is part of a misguided and chilling trend of the Biden administration adding new restrictions to asylum and prioritizing enforcement-only measures to punish immigrants seeking safety in the United States instead of pursuing humane border solutions. Officials implementing this directive will be doing so in the face of clear evidence showing immigration prosecutions result in family separation, are racist in inception and application, significantly restrict access to asylum, and are ineffective as a form of migration management.

Today’s announcement, which is one part of a larger directive which includes efforts to disrupt smuggling-related activities, also instructs U.S. Attorneys to work with the Department of Homeland Security to criminally prosecute more people arriving at the border who are referred by border officials for immigration offenses. Although the directive is vaguely worded, it suggests an increase in prosecutions for federal offenses known as Sections 1325 (“unauthorized entry”) and 1326 (“unauthorized reentry”) of Chapter 8 of the U.S. Code. 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. When the government refers parents or guardians for criminal prosecution, it leaves children they are traveling with alone in the civil immigration system, a process the prior  administration weaponized to separate and traumatize thousands of immigrant families.

“Relying on criminal prosecutions for immigration violations is a decades-old misguided strategy that causes lasting harm to immigrants and their communities,” said Jesse Franzblau, senior policy analyst at NIJC. “It is unconscionable that the Biden administration is signaling a return to a policy that tore thousands of children from their parents, and incarcerated thousands of immigrants, while lining the pockets of private prison companies. The administration should be shifting resources toward humane and logical solutions, focusing on processing and social services rather than measures that only cause harm and devastation at the border.”

NIJC has worked for years documenting rights violations resulting from criminal prosecutions for unlawful entry and reentry, and represented hundreds of families separated as a result of the prior family separation program. Although the Biden administration created a Task Force on Family Reunification and ended the Trump-era “zero-tolerance policy” that fueled the highest number of family separations, this administration has also already ramped up the use of criminal prosecutions to punish migrants. The Biden policies defy decades of evidence showing these prosecutions cause widespread harm, lead to racial and ethnic discrimination, and do not actually deter people who are fleeing violence and persecution from seeing safety in the United States.

The renewed focus on immigration prosecutions will waste taxpayer dollars and siphon government resources from other programs, while layering new suffering on harms people experienced when they arrive to seek safety at the U.S.-Mexico border. The Biden administration should prioritize policies that facilitate processing and humanitarian needs, not wasteful and harmful punitive policies.

History of migrant prosecutions in the U.S.

Migrant prosecutions separate families. Today’s announcement raises alarm that the agencies responsible for family separation could again be instructed to carry out prosecutions in a way that leads to the separation of families. In 2017, Attorney General Jeff Sessions issued a memo to all federal prosecutors directing them to prioritize the criminal prosecution of certain immigration-related offenses. In 2018, the infamous “zero-tolerance” memo instructed U.S Attorneys to adopt a policy to prosecute all Department of Homeland Security (DHS) referrals of section 1325(a) violations, to the extent practicable. The result has been well documented: thousands of children were systematically separated from their parents, who were sent to U.S. Marshals custody to face criminal charges.

The statutes used to prosecute migrants for unauthorized entry are racist in origin and application. The laws used to prosecute unauthorized entry and reentry were originally designed in the early 20th century by lawmakers who were openly seeking to advance eugenics and segregationist policies. Today, the application of the laws continues this racist legacy, as prosecutions are almost exclusively brought against individuals from Latin America. Recently, Senator Dick Durbin (D-IL) called for an investigation into whether the Justice Department is or has been targeting migrants for prosecution based on their religion, national origin, or any other protected characteristic.

Migrant prosecutions do not deter migration. The government’s own studies, along with non-governmental experts, have long dispelled the myth that immigration prosecutions deter migration. One 2018 study found no statistically significant relationship between the 2017 pilot of the zero-tolerance family separation policy, which relied on criminal prosecution of immigrant parents, and the number of U.S. Border Patrol apprehensions at the border. Another 2018 study found no evidence that mass criminal prosecution and incarceration of immigrants had any deterrent effect on migration. A June 2023 article in The Atlantic magazine detailed how deterrence policies have failed to reduce unauthorized migration or improve processing at the U.S. border.

Additional NIJC Resources:

• Explainer: “The Ongoing Harms of Trump-Era Mississippi Raids and Immigration Prosecutions” (co-authored with the Immigrant Alliance for Justice and Equity, National Day Laborer Organizing Network, and the National Immigration Project) (January 2024)
• Commentary: “Five Ways That Immigration Prosecutions Are Ineffective and Deadly” (July 2022)
• Fact Sheet: “Immigration Prosecutions by the Numbers” (co-authored with the 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” (December 2022)
• Complaint filed with the DHS Office of Civil Rights and Civil Liberties (CRCL) documenting how immigration prosecutions violate asylum rights (December 2020)
• Report: "A Legacy of Injustice: The U.S. Criminalization of Migration” (July 2020)