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FOIA litigation sheds light on guidance behind migration-related prosecutions

Newly disclosed records obtained by NIJC through Freedom of Information Act (FOIA) litigation reveal that the Biden administration is resorting to harmful and widely discredited immigration enforcement programs that are based on a deterrence approach to border management. Internal documents obtained through FOIA confirm what advocates and immigrant communities have already observed: the Biden administration is abandoning the United States’ obligation to welcome refugees and asylum seekers and instead resorting to an intentionally cruel deterrent approach that is both inhumane and ineffective. At the heart of this approach is the Consequence Delivery System (CDS), a collection of border and immigration enforcement programs designed to deliver punishment on migrants who attempt to enter the U.S. without permission. Records show that the current administration has continued the spectrum of abusive enforcement practice, including pursuing migration-related prosecutions that are rooted in racism and discriminatory in practice.


What is the Consequence Delivery System? 

The Department of Homeland Security (DHS) Consequence Delivery System began in 2011, marking a shift from the proceeding deterrence strategy of the 1990s which relied on fortifying select parts of the border such that people migrating were forced into deadly natural terrain. Now, even those who do survive the treacherous journey through the deserts are actively criminalized and incarcerated with the goal of deterring future migration. The suite of punitive programs has included: expedited removals; mass prosecutions for unauthorized entry or reentry (under Operation Streamline or the Criminal Consequence Initiative); the Alien Transfer and Exit Program (ATEP, a program where DHS deports people to border regions in Mexico far from where they were apprehended); and interior enforcement measures such as Secure Communities. In effect, the CDS programs have served as part of the enforcement toolkit used to levy long lasting penalties on those who attempt to enter or return to the United States.

The records released through FOIA reveal how the Biden administration is utilizing enforcement programs designed to maximize punishment of migrants in the most cost-effective manner, without legal or human rights considerations. One “consequence-based cost analysis” document provides a guide for CBP agents on how to tally costs such as salaries, blankets and pillows for housing migrants, so these costs can be compared across the spectrum of enforcement options. These costs are then measured against “efficiency” figures associated with the various options, according to a CDS briefing document. Efficiency is 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.

The records lay bare glaring omissions in the DHS approach to measuring success when it comes to border crossings and arrests. The CDS guides fail to consider, for example, the rapid 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.

The documents further illuminate how, in spite of ongoing legal challenges over the racist roots and application of the laws used to prosecute people for their manner of entry, the Biden administration continues to rely on migration prosecutions as a central part of the CDS programs. Of concern, parallel to the Consequence Delivery System programs, CBP announced in July 2021 that it was launching its “Repeat Offender initiative,” under which single adults previously apprehended and deported are referred for criminal prosecution. The announcement of that initiative demonstrates that, rather than end Title 42 expulsions that have blocked people from access to the U.S. asylum system, the administration is choosing to punish more asylum seekers for unauthorized reentry.


Why should the Biden administration abandon the Consequence Delivery System? 

Deterrence-based measures embodied in CDS enforcement programs do not reduce migration, but instead add layers of punishment that disproportionately impacts people who have family in the United States. Experts have found that the deterrence approach consistently overlooks the fact that people seeking to enter or re-enter the United States have strong ties to the U.S. and that people's desire to be with their children and loved ones is stronger than their fear of any form of punishment. A 2015 U.S. Sentencing Commission report determined that nearly 50 percent of people sentenced for unauthorized reentry (8 U.S.C. § 1326) had at least one child living in the U.S. A survey conducted by NIJC with people facing migration-related  prosecutions found that more than 80 percent of the people interviewed had family members in the U.S. and indicated they were trying to rejoin them. Thirty-three percent said they had children in the U.S. with whom they were hoping to reunite. Such figures illustrate that people seeking to be with their family suffer the most from punitive enforcement policies.

A deterrence-based approach is also anathema to asylum and refugee protection. More than five years ago, the DHS Office of the Inspector General (OIG) found that CBP did not provide guidance to its agents to use when referring individuals for Operation Streamline criminal prosecutions in cases where they expressed fear of persecution or return to their home countries. The same OIG report raised questions about the practice of referring asylum seekers for criminal prosecution, noting the potential for violating U.S. treaty obligations.

The newly disclosed FOIA records reveal that, in response to the 2015 OIG recommendations, the CBP chief at the time sent a memo clarifying the processing procedures for credible fear. CBP chiefs sent subsequent memos instructing CBP to continue to remind agents of their obligation to refer people who claim a fear for a credible fear interview.  Still, the updated guidance 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.


What are the real-life consequences of migration-related prosecutions and the CDS?

The real-life consequences of these measures cannot be overstated. Last year, an asylum-seeking father named Edgar was prosecuted for unauthorized reentry and sent to prison for four months in the U.S. for his Section 1326 conviction. Because he was transferred from California to Texas to serve his time, his California immigration lawyer could no longer represent him. DHS officials convinced him to abandon his asylum claim, and he was deported to Tijuana, where he was murdered in September 2021. He left behind his partner and a baby daughter who was born three weeks prior to his death. NIJC shared Edgar’s story in comment to the Federal Register in January 2022 demonstrating how the Biden administration has perpetuated family separations with migration-related prosecutions and other inhumane immigration policies. 

Countless similar stories show how the reliance on harsh and punitive border enforcement measures results in widespread deaths of people attempting to enter the U.S. The Trump administration’s “Zero Tolerance” prosecution program was an iteration of the long-criticized deterrence approach to stanching migration at the southern border. The CDS programs have operated within the context of enhanced border militarization, including the massive expansion of frightening high-tech surveillance programs, which now include robot dogs. The expanded border enforcement and surveillance infrastructure has fueled profits of private companies to the detriment of migrants.

The newly disclosed records illustrate the pressing need to shift away from programs that seek to punish migrants, and de-prioritize and phase out such prosecutions as an essential step toward ending systemic injustices, protecting fundamental human rights, and preventing family separations.

Read the CDS records via NIJC’s Transparency Project