The U.S. government’s use of criminal sanctions against migrants has grown exponentially over recent decades as part of intentionally punitive, anti-immigrant policymaking. Prosecutions for entering and reentering the United States without authorization are rooted in xenophobia and white supremacist ideology, and have a discriminatory impact on communities of color. Data show that the laws continue to fall disproportionately on Latinx populations. For years, scholars and legal rights experts have worked to document the anti-immigrant origins of the almost-century-old laws used to prosecute people for entering or reentering the country without permission, and community groups have documented the systemic rights violations stemming from such prosecutions. In recent years, there has been a growing number of people challenging their prosecutions on the basis that the statutes were passed with discriminatory intent, and violate equal protections.
NIJC has filed a series of Freedom of Information Act (FOIA) requests in an effort to shed light on how prosecutions of migration offenses have been used by multiple administrations in an increasingly punitive manner. Newly released documents expose how migration prosecutions are used parallel to immigration enforcement measures, adding a unique dimension of criminal punishment on top of the already-severe immigration penalties that exist for attempting to enter or re-enter the United States without permission. Our ongoing research has been cited in legal challenges and adds to the body of evidence illustrating how criminal prosecutions, purportedly used as a deterrent immigration enforcement measure, are actually used to add layers of punishment to migrants who often have strong family ties in the U.S. and who may be coming to the U.S. in search of refugee protections. Our work aims to raise public awareness, pressure the administration to stop the use of such prosecutions, and advocate for Congress to repeal of the laws that criminalize the act of migration.
Read the newly released FIOA documents here:
1. June 2021: SDC Consequence Delivery System, U.S. Customs and Border Protection [10 pages, unredacted]
In June 2021, CBP issued a “Consequence Delivery System Guide,” for the San Diego Sector, to be utilized for the “processing of deportable aliens.” The document is meant to be used as a guide for Border Patrol agents to follow when deciding the most “effective” and “efficient” form of punishment to employ against people seeking entry into the U.S. The guide illustrates how CBP agents are instructed to use a combination of more than one consequence against migrants, and consider people they arrest as measurements of efficiency; which success measures based on how effective the program is at making people suffer enough “consequences” to keep them from returning. The options discussed in the guide do not consider measures that permit people to seek asylum or other forms of immigration relief, but instead include enforcement measures, such as: the Operation Against Smugglers Initiative on Safety and Security (OASISS), Notice to Appears (WA/NTA’s); Mexican Interior Repatriation Program (MIRP); Expedited Removal (ER); Alien Transfer and Exit Program (ATEP); standard prosecutions (STR PROS); QUICK; reinstatement; voluntary removal (VR); and Criminal Consequence Initiative (CCI) (formerly Operation Streamline).
The guide provides a chart for the number of times each option was used during the month, but the numbers do not correspond to individual apprehensions. The guide explains that individuals can be represented in multiple areas, for example, someone can be subject to expedited removal and ATEP.
For prior years, see San Diego Sector CDS Guide, FY 2017 - 2020 [8 pages, redacted].
2. June 17, 2021: Consequence Delivery System, FY 21 Cost Analysis, U.S. Customs and Border Protection [15 pages, unredacted]
This document provides an analysis of the fiscal costs of each Consequence Delivery System option for Fiscal Year 2021. The “rough order of magnitude workbook” discusses how each sector measures the costs resulting from personnel, facilities, services, housing and care, and transportation, and shows how each border sector fills out worksheets corresponding to each CDS program.
The document illustrates the cost benefit analysis approach beyond the CDS programs, and how they were designed to employ metrics of effectiveness and efficiency to the different forms of removal and other enforcement consequences that migrants face after being apprehended at the Southern border.
For prior years, see FY 2019 CDS Cost Analysis, dated April 27, 2018 [15 pages, unredacted].
3. June 9, 2021: Memo from Chief, Law Enforcement Operations Directorate U.S. Border Patrol, Referring and Documenting “Credible Fear” Claims in Expedited Removal, U.S. Customs and Border Protection [3 pages, redacted]
In June 2021, CBP Chief Manuel Padilla sent a memo to all Chief Patrol Agents to serve as a reminder that U.S. Border Patrol personnel “must refer individuals in custody who are processed for expedited removal and who claim fear of persecution, torture, or express an intent to apply for asylum to an asylum officer for a credible fear interview.” The memo describes how Border Patrol Agents are supposed to document in e3 (CBP’s internal enforcement tracking system) any claim of fear made by individuals in their custody. The last page is redacted under FOIA exemptions that apply to information considered law enforcement sensitive.
The updated guidance on processing people who claim fear has done little to protect those who express fear from being referred for prosecution. Even with guidance in place regarding the processing of people who express fear, Border Patrol agents regularly fail to ask the obligatory questions relating to fear-based claims, and refer people for criminal prosecutions in violation of national and international legal obligations to provide asylum protection to migrants seeking refuge.
4. March 2021: Consequence Delivery System (CDS): San Diego Sector Briefing, U.S. Customs and Border Protection [9 pages, redacted]
This March 2021 briefing document provides an overview of the San Diego Sector’s Consequence Delivery System results for the first quarter of Fiscal Year 2021, including performance measurements and post-apprehension indicators. The briefing claims “100% CDS implementation,” and provides figures on rates of recidivism. The document demonstrates how CBP agents are instructed to measure “efficiency” of each of the CDS programs, based primarily on “recidivism” rates, which are the percentages of cases where people who attempt to cross the border again after being subject to programs like criminal prosecutions and rapid deportations. Notably, the recidivism rates only show percentage shifts, and do not provide any statistically valid findings that account for other external factors that people consider when they decide to attempt to cross the border, such as children and family ties.
The document raises questions regarding CBP’s approach to measuring success when it comes to border crossings and arrests. The CDS guides fail to consider, for example, the rapid mass expulsion of migrants through the Title 42 program without any legal process, which has resulted in massive increases in repeat border crossings and as a result inflated apprehension statistics. CBP also apparently continued to measure CDS success as the sector level based on recidivism rates, even after a Government Accountability Office (GAO) review found in 2017 that flaws in the methodology used to calculate annual recidivism rates for the Southwest border limited its usefulness in assessing CDS effectiveness.
For prior years, see San Diego Sector briefings from FY 2017 - 2020 [153 pages, redacted].
5. May 9, 2018: Memo from Chief Patrol Agent, San Diego Sector, Zero Tolerance RE: Implementation of Phased Prosecutorial Priorities, U.S. Customs and Border Protection [2 pages, redacted]
One month after Attorney General Sessions issued the Zero-Tolerance memo, CBP Chief Rodney S. Scott issued a memo instructing San Diego personnel to refer all amenable adults who violate 8 USC Section 1325 for criminal prosecution; including adults traveling with children. Effective immediately, the San Diego Sector was ordered to phase-in the new priorities to prosecute “all illegal entry apprehensions in the sector.” While implementing the phased plan of “100 percent prosecution of all amedable subjects,” personnel were told to continue processing and presenting 8 USC Section 1324 and Section 1326 cases as well.
6. August 27, 2017: Memo from Chief, Law Enforcement Operations Directorate U.S. Border Patrol, Processing Reminder for Claims of Fear, U.S. Customs and Border Protection [2 pages, redacted]
In August 2017, CBP Chief Carla Provost issued a memo reminding all Patrol Agents and Directorate Chiefs that the Border Patrol’s policies affecting asylum procedures had not changed, and were still based on laws that allow people to seek asylum. The memo explains that ensuring that claims of fear processing procedures are adhered to is essential to maintaining individual’s rights while also ensuring the credibility and integrity of the Consequence Delivery System and the Expedited Removal processes.
7. Fiscal Year 2017: Consequence Delivery System Guide, Multi-sector, U.S. Customs and Border Protection, [18 pages, redacted]
This 18 page document is a Consequence Delivery System guide for multiple Southwest Border Patrol sectors. The guide describes how the CDS is to be implemented for the processing of “deportable aliens” and includes an evaluation process with six stages of evaluation processes. The document shows that the program considered most effective and efficient varied significantly between the different border sectors, with many of the sectors finding that migration prosecutions were not the most effective and efficient “consequence” imposed on people arrested by Border Patrol.
8. September 30, 2015: Memorandum from U.S. Border Patrol Chief Michael J. Fisher, Clarification of Processing Procedures for Credible Fear, U.S. Customs and Border Protection [8 pages, redacted]
In response to the 2015 OIG recommendations, the CBP Chief at the time sent a memo clarifying the processing procedures for credible fear, with a “Credible Fear Processing Procedures Guide.” The guidance indicates that CBP agents are required to document all relevant information pertaining to credible fear claims, but are permitted to prosecute and remove individuals “through the most effective means possible.”
9. November 26, 2014: Memorandum from U.S. Border Patrol Chief Michael J. Fisher, Muster Module about Credible Fear Determination, U.S. Customs and Border Protection [3 pages, redacted]
In November 2014, CBP Chief Michael J. Fisher sent a memo to all division chiefs with an attached “Muster Module” on how to address credible fear determinations. The memo explains that the documents were developed to remind Border Patrol agents of their responsibility to ask credible fear questions during the processing, as well as at the time of arrest. The module describes the questions that Border Patrol are supposed to ask people they arrest to ensure that people fleeing persecution are not denied their right to seek protection.
The following FOIA requests to the Department of Justice Office of the U.S. Attorneys remain pending:
1. Guidance on 8 U.S.C. § 1325 prosecutions
- All policy guidance, briefing papers, meeting minutes, background reports, and email correspondence developed by the U.S. Attorney’s Office on the Southwest Border (i.e., District of Arizona, District of New Mexico, Southern District of California, Southern District of Texas, and Western District of Texas) in response to the U.S. Attorney General’s April 6, 2018 memo directing each U.S. Attorney’s Office to adopt a “zero-tolerance” policy, in consultation with DHS, for all offenses referred for prosecution under section 1325(a).
2. Data on Operation Streamline
- Records relating to the decision by the Justice Department to restart Operation Streamline prosecutions in San Diego in July 2018, for the first time since 2005;
- Legal guidance followed or developed by U.S. Attorney’s Office in the Southwest District implementing Operation Streamline prosecutions
- Data on 1325 & 1326 prosecutions carried out as part of Operation Streamline since 2016, broken down by jurisdiction and date;
- Data to support the claim that “Operation Streamline” prosecution initiatives have led to a decrease in illegal activities in the Southwest Border districts.
3. Guidelines on 8 U.S.C. § 1325 prosecutions
- All guidelines for prosecutions of violations of 8 U.S.C. § 1325 (improper entry) developed by the U.S. Attorney’s Office on the Southwest Border (i.e., District of Arizona, District of New Mexico, Southern District of California, Southern District of Texas, and Western District of Texas) in coordination with the U.S. Department of Homeland Security and other appropriate agencies, as mandated by the U.S. Attorney General on April 11, 2017, to deter first-time improper entrants.