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The criminalization of immigrants has wasted billions of taxpayer dollars, dehumanized vulnerable migrants, and ballooned already-overcrowded jails and prisons. Still, much of the details relating to entry and reentry prosecutions are shrouded in secrecy, leaving the public and lawmakers in the dark as to the full extent of the associated harms. NIJC has filed a series of FOIA requests in an effort to expose how prosecutions of migration offenses are part of the practice of targeting communities of color under the façade of maintaining law and order. We intend to use the information to support efforts to end migration related prosecutions and decriminalize migration.

NIJC pending FOIA requests regarding criminalization of immigrants:

Department of Homeland Security (DHS)

1. 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

2.  DHS guidance on immigration prosecutions

  • Policy guidance (including handbooks or other guidance) used by DHS to determine when to refer an individual for federal prosecution for unauthorized border crossing (illegal entry 8 U.S.C. § 1325 or illegal re-entry under 8 U.S.C. § 1326.

Department of Justice (Office of the U.S. Attorneys)

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

 

U.S. Marshals

1. Guidelines on 8 U.S.C. § 1325 prosecutions

  • Guidance followed by the U.S. Marshals Service regarding the treatment of detainees referred for prosecution for violations of 8 U.S.C. § 1325 (illegal entry) or 8 U.S.C. § 1326 (illegal reentry) including training documents on using waist and ankle shackling;
  • Records on conditions at facilities used to hold individuals referred for prosecutions for immigration offenses as part of Operation Streamline (including inspections, incident reports, and other records);
  • Guidelines on prosecutions of violations of 8 U.S.C. § 1325 developed by the U.S. Attorney’s Office on the Southwest Border used by the U.S. Marshals Service, developed in response to the U.S. Attorney General’s April 11, 2017, memo on Criminal Immigration Enforcement;
  • Guidelines on prosecutions of violations of 8 U.S.C. § 1325 developed by the U.S. Attorney’s Office on the Southwest Border used by the U.S. Marshals Service, following the U.S. Attorney General’s April 6, 2018 “Zero-Tolerance” memo.

2. Federal Prison Detention – expenses and contracts 

  • Budget justification records relating to the 2019 Emergency Humanitarian Assistance and Security at the Southern Border Act of 2019 which supplemented Marshals’ budget with an additional $155 million for Federal Prison Detention.
  • Budget justification records relating to the U.S. Marshals 2019 anomaly request for the Federal Prisoner Detention account with a rate for operations of $1.9 billion for necessary activities to sustain the average daily prisoner population.
  • Contracts between Marshals, private companies, county jails, and other agencies regarding the allocation of Marshals resources for FY 2019-2020.

 

U.S. Customs and Border Enforcement (CBP)

1. CBP Guidance on Operation Streamline 

  • Legal guidance for referrals, plea agreements, and sentencing guidelines used by CBP Prosecutions Units or Enforcement Officers as part of Operation Streamline.
  • Communications relating to the decision to restart Operation Streamline prosecutions in San Diego in July 2018, for the first time since 2005.
  • Policy guidance used by CBP Prosecutions Units or Enforcement Officers when making referrals for 8 U.S.C. 1325 prosecutions for individuals who expresses fear of persecution or return to their home country.
  • Guidance used to determine when U.S. attorneys from CBP Prosecutions Units or Enforcement officers are assigned to prosecute Operation Streamline or 8 U.S.C. § 1325 or 8 U.S.C. § 1326 cases.

2. Guidance on CBP referrals for 8 U.S.C. § 1325 prosecutions

  • Policy guidance, memos, background reports, field manuals, and email correspondence developed or transmitted by CBP Patrol Agents or Enforcement Officers on the Southwest Border 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).

3. CBP guidance on immigration prosecutions

  • The November 6, 2017 Border Patrol memo, cited in the 2018 GAO report on Unaccompanied Children, which stated that the District of New Mexico, Acting U.S. Attorney removed all restrictions imposed on referrals from Border Patrol’s El Paso Sector, which had previously been limited to 25 referrals for 8 U.S.C. § 1325 misdemeanor cases per month and 150 referrals for 8 U.S.C. § 1326(a)(1) felony cases per month.

4. CBP guidance on immigration prosecutions

  • Policy guidance (including handbooks or other guidance) used by CBP to determine when to refer an individual for federal prosecution for unauthorized border crossing (illegal entry 8 U.S.C. § 1325 or illegal re-entry under 8 U.S.C. § 1326). 

5. Resources/Impact of Zero-Tolerance Policy

  • Records relating to the shift in resources required to increase prosecutions for illegal entry (U.S.C. § 1325) as a result of the April 2018 “Zero Tolerance Policy,” and the impact the shift in resources had on Border Patrol’s ability to screen possible fraudulent claims of parentage.