WOLA: Advocacy for Human Rights in the Americas

(AP Photo/Hans-Maximo Musielik)

15 May 2018 | Commentary

Jailing All Border Crossers and Separating Families Would Break U.S. Courts, Ports, and Prisons. (It’s Cruel, Too.)

The Trump administration’s new “zero tolerance” approach may separate thousands of young children from their migrant parents at the U.S.-Mexico border. Parents who cross the border “improperly,” as the law defines it, will be tried as criminals, and their children treated as unaccompanied minors and placed with guardians. If this happens all along the border, years from now U.S. schoolchildren will study this period as a shameful chapter in America’s history. Oscar-winning movies will portray the victims and their pain. Thousands will ask themselves why they didn’t do more to stop it.

This is the opposite of an effective approach. Rather than split up families and lock people up, a better strategy would build up the U.S. government’s capacity to handle the causes and effects of a historic humanitarian crisis in Central America, where unchecked criminal violence is expelling tens of thousands each year. It would invest in faster adjudication of asylum claims with due process, and in addressing the root causes of the violence. It would also recognize that, minus Central American children and families, the number of undocumented people trying to cross the border today is the fewest in 48 years. That calls for modest, smart adjustments to border security, not radical proposals like building walls or tearing apart families.

Instead, the Trump administration is embarking on a course of action that could cause the federal government’s courts, ports of entry, and prisons to collapse. The administration intends to send to federal courts—and maybe to federal prisons—100 percent of people caught crossing the U.S.-Mexico border at any site other than the 45 official land ports of entry. Under Section 1325 of Title 8, U.S. Code (“Improper entry by alien”), it would prosecute even border crossers who came seeking asylum or other humanitarian protection.*

Since the Bush administration launched “Operation Streamline” in 2005, dozens of people who crossed the border outside ports of entry have been tried and imprisoned en masse every day, mainly in Arizona and Texas. Now, the Trump administration expects to start “streamlining” everybody, even parents with children.

It is already increasing these prosecutions. Between October 1 and April 19, the Homeland Security Department referred about 30,000 apprehended migrants for prosecution under Section 1325, up from 18,642 in all of fiscal 2017. But even the current level is about one-fifth of all apprehended adult border-crossers, so reaching the new stated goal of 100 percent would mean Operation Streamline on steroids: a staggering increase in federal prosecutions.

*The policy now taking shape would initiate 100-percent enforcement of Title 8, Section 1325 of the U.S. Code, a law that has been on the books since 1952. It says that any non-citizen who crosses the border into the United States “at any time or place other than as designated by immigration officers” has committed a misdemeanor punishable, upon the first offense, by up to six months in prison or a fine of at least $5,000.

1. Breaking the Prison System

This would mean locking up hundreds of thousands more people each year. Today, the entire federal prison population is 183,755 inmates. Of that population, 12,115 are incarcerated for immigration offenses. U.S. Marshals Service holds about 80,000 more each year for immigration offenses, normally for 90 days or less, often in privately run facilities.

Now imagine if that number were loaded up with all border crossers. 303,916 people crossed the border improperly, or “entered without inspection,” in 2017. Perhaps 220,000 were adults. Criminally prosecuting and incarcerating them would nearly double the entire federal prison population plus the number in U.S. Marshals custody.

This would be a historic increase and a shock to the federal criminal justice system. The cost of imprisoning each would be, at 2017 rates, $99.45 per day in federal prison and $89.33 per day in U.S. Marshals custody, not counting all of the facilities that would have to be built and people who would have to be hired to deal with the increase.

That would cost billions of additional dollars, and break the U.S. federal prison system. But it is exactly what the Trump administration’s Justice Department intends to do. Attorney-General Jeff Sessions said it on May 7.

[T]he Department of Homeland Security is now referring 100 percent of illegal Southwest Border crossings to the Department of Justice for prosecution.  And the Department of Justice will take up those cases.
I have put in place a “zero tolerance” policy for illegal entry on our Southwest border.  If you cross this border unlawfully, then we will prosecute you. It’s that simple.
…If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.

2. Breaking Land Ports of Entry

That last part is important. The directors of ICE, CBP, and USCIS sent an April 23 memo to Homeland Security Secretary Kirstjen Nielsen, obtained by the Washington Post, calling on the Department to start detaining and prosecuting all parents crossing the border with children between ports of entry.

Monday’s memo urged Nielsen to refer for prosecution “100 percent” of the adults held at the border, “including those initially arriving or apprehended with minors.”
Such a policy would mean separating parents and children, because the parents would be placed in criminal detention, where children cannot be held.

This is a stark change. Until now, when parents with children crossed the border as “entries without inspection” and requested asylum, the family was most often kept together. (Between October and December, the Washington Post reported, 20,000 of the 30,000 migrants who sought asylum did so by entering without inspection.) ICE paroles most families into the United States to await their eventual asylum hearings, often with a monitoring device.

The proposed change would instead arrest and criminally prosecute parents while taking their kids away. Families could continue with their asylum processes, but only while parents concurrently pay criminal penalties—including possible imprisonment—for violating Section 1325.

This would not happen, though, to asylum-seeking families who present themselves at one of the 45 official land ports of entry along the U.S.-Mexico border. That is where it is perfectly legal to declare that one fears to return to one’s home country, and to petition for protection.

There are a variety of reasons why most asylum-seeking families haven’t crossed at the ports of entry. Many simply don’t know that seeking asylum requires them to enter that way, so they cross the Rio Grande or a land border and seek out Border Patrol agents once they are on U.S. soil. Some are steered away from the ports by drug trafficking organizations on the Mexican side of the border, who force their smugglers to cross them elsewhere in order to tie up Border Patrol personnel. And some are discouraged by interactions at the ports of entry themselves, where officers for a time were illegally turning people away.

The land ports of entry along the border are easily overwhelmed by asylum-seekers. They are staffed by blue-uniformed officers of CBP’s Office of Field Operations, not green-uniformed Border Patrol agents. This agency is badly understaffed, and grew much more slowly than Border Patrol over the past 15 years. A recent CBP analysis found a shortfall of over 2,500 officers, about 10 percent of the nationwide force; their union says it is 3,700. “CBP officers are being routinely asked to work back-to-back eight-hour shifts to make up for the staffing shortfalls,” the Washington Post reported in January.

Charged with interviewing or inspecting every person, vehicle, and cargo conveyance that crosses the border, and with trying to detect smuggled drugs, port of entry personnel struggle to process individuals and families who show up requesting asylum.

In fiscal year 2017, ports of entry at the U.S.-Mexico border received 111,275 non-citizens without visas or proper documentation, including 7,246 unaccompanied children, 29,375 members of family units, 15,410 citizens of Cuba, and 9,206 citizens of Haiti. Many of these 111,275 were asking for asylum or other humanitarian protection, and CBP officers at the ports of entry had to process each and refer them for credible fear interviews. The pace has been similar during the first seven months of fiscal year 2018, with 63,556 people arriving at the ports without proper documentation, many requesting asylum.

This is at the edge of what port of entry personnel are able to process. At San Ysidro between Tijuana and San Diego, the busiest land port of entry in the Western Hemisphere, CBP could only process 75 to 100 people per day in late 2016, when the port received a surge of Haitians seeking humanitarian parole in the United States. Officers there were backlogged again in May 2018 as over 200 Central American asylum-seekers requested protection after traveling through Mexico on the much-covered migrant “caravan.” The caravan participants added to the regular flow of hundreds of Mexicans and nationals from other countries who request asylum at this port of entry.

Here is what this workload looks like at the ports of entry:

Once the new Trump policy goes into effect, word will spread quickly among asylum-seeking migrants and their smugglers that it is no longer safe to cross the border anywhere and ask Border Patrol agents for protection: they could end up in federal prison. Instead, they will all likely go to the already stretched ports of entry.

What would that look like? Here’s how the workload chart would grow if we add, for illustration’s sake, all unaccompanied migrants and family-unit members whom Border Patrol apprehended between the ports of entry during those years. This is an inexact measure (for instance, Mexican kids and families tend to get sent back immediately), but it gives a general idea of the protection demand that the ports of entry might have to deal with:

If personnel at the land ports of entry are struggling to process 100,000-150,000 largely protection-seeking people per year, imagine what will happen if that number rises to 200,000-300,000. The ports could collapse under the demand. In particular, CBP officers would be left with far fewer person-hours with which to detect heroin, synthetic opioids, methamphetamine, and cocaine, the majority of which pass through the official crossings.

The effect would spill southward into Mexican border towns, as long lines of migrants wait their turns, for days or weeks, at the ports’ pedestrian entrances. The strain on social services in Mexico would be huge. Tijuana is the border city with the most capacity to offer migrants temporary shelter, as it has several mostly church-run shelters. But these fill up quickly, and other border towns have far less infrastructure.

Mexican border towns like Tijuana, Nuevo Laredo, and Reynosa, meanwhile, are experiencing some of the highest levels of violence in the country. Concentrating Central American families and other asylum seekers there poses a risk to their safety. It  could further strengthen the criminal groups operating on the Mexican side of the border, who would more easily detect the migrants and target them for extortion, robbery, kidnapping, and forced recruitment. Routing protection-seeking families to the ports of entry will cause chaos, both at the ports and inside Mexico.

3. Breaking the Federal Courts

Hundreds of thousands of new prosecutions would also overwhelm the federal court system, especially in border states. Already, more than half of prosecutions in the federal system are for immigration-related offenses. Immigration cases totaled about 7,030 in March, out of a total docket of 13,083 new prosecutions. That month, if the Homeland Security Department had referred for prosecution every adult migrant caught between the ports of entry, it would have increased prosecutions by about 22,000 more individuals, ballooning the federal docket by about 270 percent.

We are hearing that something like that may be happening. A journalist who works in Texas’s busy Rio Grande Valley sector tells WOLA that federal courts there were reviewing 50 to 60 improper entry cases per day in March, are now nearly up to 150, and are being told to expect 300 per day by August. In Arizona, where 81 percent of federal prison sentences last year involved improper entry and courts are processing about 75 migrants per day, District Judge Raner Collins warned, “we don’t have the staff” to handle more. “We don’t have the personnel. We don’t have the room to be able to do anything more than we’re doing right now with regards to these type of cases.” A district judge in southern California notified defense lawyers that the U.S. Attorney there “expects to file 20 illegal entry cases each day beginning on May 7, a far higher number than last year. …Obviously, this increase in caseload will have an impact.”

The Justice Department is transferring 35 prosecutors to border states to deal with the anticipated jump in caseloads. But there is no similar increase in judges or public defenders. As dockets lengthen, detained migrants may spend months awaiting trial, increasing their suffering and incurring great cost to U.S. taxpayers.

A slowed-down federal court system would mean longer waits for trial for everyone, including U.S. citizens, accused of committing federal crimes. Throwing more resources at “improper entrants” will mean fewer resources for prosecuting far more serious federal crimes like drug trafficking, human trafficking, money laundering, or arms trafficking. A federal criminal system buckling under the burden of hundreds of thousands of border-crossers will be unequipped to deal with the criminal structures behind the United States’ opioid epidemic.

“To the Extent Practicable”

There’s a reason why Title 8, Section 1325 has never been enforced to the letter. It’s not just cruel to children and families: it doesn’t scale. Because of this, in fact, the Justice Department policy statement gives itself a bit of wiggle room, calling for full prosecution of border crossers “to the extent practicable.”

In reality, the Trump administration is unlikely ever to get near 100%. Jeff Sessions and other Trump officials will find that any significant increase over what they’re doing now will break the courts, ports, and prisons. They will have to pull back from this untenable goal. That would take pressure off overburdened U.S. institutions. But it would be small consolation to the thousands of families who may be separated in the coming months.