Photo: Johnny Hanson/Houston Chronicle
Attorney General Jeff Sessions on Friday ordered federal prosecutors along the southern border to adopt a “zero tolerance” policy and criminally charge all immigrants caught entering the country illegally.
The new policy would swell already overburdened federal dockets at the border and expands a controversial program known as Operation Streamline that started in Del Rio more than a decade ago. Though simply being here without authorization is a civil offense, improper entry is a federal misdemeanor.
Prosecuting migrants allows the government to detain them in federal prisons, where there is more capacity than immigrant detention centers, before deporting them after they have served their sentence. It also enables the administration to separate families, as children cannot be held in federal prison, necessitating their placement in foster care.
“The recent increase in aliens illegally crossing our Southwest Border requires an updated approach,” Sessions said in the memo.
Central American families and children make up the fastest-growing demographic of migrants at the border but are among the most difficult to quickly deport. A bipartisan 2008 law aimed at curbing human trafficking and a 20-year-old legal settlement protecting children in detention means most such families with children are usually released to await their immigration cases if asylum officers find that they have a credible fear of returning home.
President Donald Trump has said he wants to end such a practice of so-called “catch and release.”
The attorney general’s announcement comes after a week in which Trump has tweeted almost daily, criticizing what he has called “legal loopholes” that prevent the government from quickly deporting many immigrants.
“As ridiculous as it sounds, the laws of our country do not easily allow us to send those crossing our Southern Border back where they came from,” Trump said this week. “A whole big wasted procedure must take place.”
Bridget Cambria, a Pennsylvania immigration attorney who represents parents who have been separated from their children, said the procedures were set in place by Congress. Such zero-tolerance prosecutions of potential asylum-seekers would be disastrous, she said.
“Children will be taken from their parents. Mothers will lose babies. Fathers will lose their children. They will enter our foster system,” she said on Twitter. “Watch for this disaster to play out, and for the lawsuits to pile up.”
The American Civil Liberties Union has filed a class-action lawsuit accusing the administration of illegally separating hundreds of immigrant parents and children who are seeking asylum.
The Department of Homeland Security this week also released statistics showing that the number of families and children crossing the border, many of them fleeing gang violence in Central America, reached more than 13,000 in March.
About as many arrived during March 2014 in what was seen as a surge of Central American families crossing the southern border, spurring a federal crisis as President Barack Obama’s government struggled to house them all.
After Trump took office in January 2017, announcing a series of harsh immigration policies to deter migrants from coming, the number of such families dropped to record lows, about 1,200 in March of that year.
But they quickly began rising again and in recent months have almost reached Obama-era levels, even as the overall number of illegal crossings at the border are at record lows, with about 415,200 apprehensions last year.
Photo: Michael Ciaglo, Staff
Luis Jafeth Duran, 3, stands under a full moon minutes after he and his mother, Jenny Marisa Rodriguez, surrendered themselves to Hidalgo County constables after crossing the border into the United States at Anzalduas Park Tuesday, Nov. 15, 2016 in Mission. Rodriguez fled with Luis from Honduras after local gangs threatened to harm him if she didn’t give them information about her husband, who ran away when the gangs were pressuring him to join them. She hasn’t heard from her husband in a year. ( Michael Ciaglo / Houston Chronicle )
Luis Jafeth Duran, 3, stands under a full moon minutes after he and…
Zero-tolerance prosecutions of immigration crimes began under President George W. Bush, later expanding to six of the nine Border Patrol sectors on the southern border.
The sheer number of offenders charged with the misdemeanor means federal judges often have to see some 80 at a time. Since there is no real defense to the crime, they usually plead guilty in a fast-tracked mass hearing.
While the legality of such expedited hearings — a months-long federal process condensed into one — has been upheld by appellate courts, advocates say the proceedings deprive immigrants of due process.
In particular, they say it punishes asylum seekers in a violation of international treaties and can deny them an opportunity to make their claims for refugee status at all. The Department of Homeland Security’s own Office of Inspector General identified this as a problem in 2015.
Supporters of expanding immigration prosecutions say the prospect of prison time has contributed to historically low apprehensions at the border and deters migrants from trying to return. Border Patrol officials point to the agency’s own figures showing that the number of people attempting to cross the border again within a year fell from 29 percent in 2007 to 14 percent in 2014.
The Government Accountability Office, however, has found problems with the agency’s methodology, suggesting return rates basically remained unchanged when measuring over a more realistic time frame of three years and excluding immigrants who stayed in the United States in that period.
Photo: Marie D. De Jesus, Houston Chronicle
U.S Customs and Border Protection Operations Officer David Vera…
By 2013, U.S. Attorneys and federal judges along the border had largely moved away from such zero-tolerance prosecutions, frustrated by the time and expense they necessitated.
Detaining migrants on such charges alone costs some $1 billion a year, according to estimates by Grassroots Leadership, an advocacy group in Austin opposing incarceration.
By far the larger cost is the time, and resources, such a strategy expends.
The crime of illegal immigration now makes up almost half of all federal cases and 80 percent of the dockets in the Western and Southern Districts of Texas, which includes Houston, according to an analysis of federal data by the Transactional Records Access Clearinghouse, a data research group at Syracuse University.
Meanwhile, the second-most pursued offense by U.S. attorneys – going after drug-related offenses during the height of the nation’s opioid epidemic – made up just 14 percent of all new federal cases last spring, falling to its lowest level in a quarter of a century.