Connect

Raising the Risks of Illegal Entry: Prosecuting the Violators

By David Simcox Senior Advisor, Negative Population Growth

Can illegal border crossings be deterred if there are no consequences for the individual border violators themselves? NPG has long argued that stronger penalties such as fines and incarceration for unlawful entrants are critical to zero tolerance of illegal immigration.¹

For decades the U.S. Border Patrol has returned nearly all Mexican unlawful entrants to Mexico within 24 to 48 hours by a process called "voluntary departure." The captured border jumper signs a paper acknowledging he entered the U.S. unlawfully and agrees to return voluntarily to Mexico, in many cases only to make further attempts to enter unlawfully until he ultimately succeeds.

Even more ludicrous have been the fictitious penalties for non-Mexican illegal aliens (OTMs - "Other than Mexican."). Since OTMs can't get voluntary departure back to Mexico without Mexico's acceptance, they were charged by the Border Patrol, given notice to appear and then released into the general population. Less than 20 percent actually appeared. Individual OTMs have been reported to surrender themselves voluntarily to Border Patrolmen knowing that they would receive a toothless summons, released, and then be on their way to jobs in U.S. cities.

Now nearly all OTMs are detained and sent back under the "expedited removal" provision of the Immigration and Nationality Act (INA),² which avoids the sluggish removal (deportation or exclusion) proceedings in the immigration courts and cuts detention time by as much as two-thirds.

Despite a widely held belief among illegals and their U.S. supporters that illegal entry is not a crime, the INA does provide for prosecution of unlawful entrants under criminal misdemeanor charges, allowing fines and up to six months jail time.³ Until late 2005, it has been rarely used.

"Voluntary departure," has been the preferred method for the U.S. government because it avoids costly and protracted formal deportation proceedings that, it is argued, would have clogged the U.S. federal courts and overwhelmed U.S. Attorneys. Those relatively few violators formally deported can face felony charges of up to five years or more in jail if caught reentering, though supposedly overloaded U.S. Attorneys have been selective about prosecuting even these felonious violations.


Operation Streamline - Raising the Risks for Individual Violators

In late 2005, Homeland Security announced Operation Streamline, a pilot project in the Del Rio, Texas, Border Patrol sector, to prosecute all apprehended intruders under the "entry without inspection (EWI)" criminal misdemeanor provision of INA permitting prison sentences of up to six months. Early indications are that it has had a clear deterrent effect. In early 2008, after the new policy had been little more than one year in effect, Border Patrol officials reported apprehensions of EWI's in the Del Rio area down 46 percent.

Other major border patrol sectors for Yuma, Arizona, and Laredo, Texas, subsequently adopted Operation Streamline and reported similar or even larger declines in illegal alien arrests, as well as some reduction in crime in major border cities. The highly active El Paso, Texas, and El Centro, California, border sectors have exercised their option of staying out of the operation, providing an unfortunate safety valve for determined border jumpers.

But zero tolerance in prosecutions is at best a goal rather than a reality so far. Initially in the Del Rio sector, and subsequently in other sectors trying it, the policy was applied only to transgressors in certain high traffic portions of the border, though in Del Rio it is now applied to those sneaking in anywhere across the sector's 205 miles of border with Mexico. Violators claiming political asylum are excepted, as are families, minors and the aged and, in some cases, first-time non-criminal violators. Tucson, the largest sector on Arizona's border is joining Operation Streamline in 2008. But because of the large numbers of arrests in this sector, border officials will initially limit the number of prosecutions to 40 a day ⁴- out of daily average apprehensions of illegals of 1000 per day in 2007. The problem remains that immigration offenses occur wholesale, but they must be adjudicated retail.

Operation Streamline could be a major turnabout from the longstanding policy of tacit tolerance of illegal immigration. Early indications are that it is changing behavior of actual and prospective illegal immigrants when they see their actions have consequences. While optimistic about the statistics showing declining apprehensions, Border Patrol officials note that Operation Streamline is not the only factor in play. The build-up of the Border Patrol since 2000, tighter border surveillance after September 11, 2001, an economic slow-down in the U.S., and increased Federal and State pressures on illegal immigrants within the U.S. have been factors in the decline of apprehensions on the southern border from 1.6 million in 2000 to 1.1 million in 2006.

Critics of Streamline contend that more rigorous border control has persuaded many Mexican illegals in the U.S. not to make periodic returns home, but to remain here, reducing the total border crossings but not necessarily the total illegal population. There are also some signs that Operation Streamline's effectiveness is diverting some U.S.-bound illegals to sectors where it is not in effect. A future national assessment by Homeland Security is planned to sort out these variables and weigh the overall effectiveness of the operation.

Even supportive officials acknowledge the increased burden on federal courts, U.S. attorneys and detention facilities in those sectors involved. Even though Operation Streamline was in effect for only part of fiscal year 2006, and in fewer sectors, U.S. federal magistrates in Texas, Arizona and New Mexico dealt with more than 30,000 immigration misdemeanors cases.⁵ While this workload is rising, there is optimism that the deterrent effect of more frequent prosecutions will eventually drive down illegal entries and reduce the need for future prosecutions. Those formally convicted of violations are also formally removed from the country, making them ineligible to return for up to ten years.

Another advantage in the policy is that U.S. magistrates, rather than fully-empowered federal judges requiring laborious Senate confirmation, can preside at trials for immigration misdemeanors. Most cases so far have been handled with guilty pleas or bench trials, with sentences considerably less than the six-month maximum, reducing the need for juries and public defenders. The Department of Homeland Security has lent some lawyers to these hard-pressed jurisdictions. Not surprisingly, immigration advocates such as the American Civil Liberties Union, have complained of "denial of due process."

More federal judges will still be needed to conduct felony trials for those immigrants sentenced and removed who subsequently re-entered the U.S. Between 2002 and 2006 cases of felonious re-entry handled by the Federal judiciary rose from 8,400 yearly to 11,800, but the increase is believed to be still well below the potential number of such cases now in the U.S.⁶ The federal courts' immigration burden does not include the approximately 300,000 deportation and exclusion cases handled each year by the administrative law judges of the Justice Department's Executive Office of Immigration Review (EOIR).

Conclusion: making up for past laxity - The U.S. government is now in a serious resources bind to apply the law against the massive numbers of illegal border crossers and visa overstayers lured here by decades of federal acquiescence toward illegal immigration. Not surprisingly, federal courts and U.S. Attorneys over time in the past got Washington's message that immigration law enforcement was just not that important. The serious enforcement which Washington now claims to want will require formidable investments of time, attention and resources.

NPG believes, first of all, that those costs must be accepted -- now and indefinitely into the future. World population pressures on U.S. borders are likely to grow briskly for the foreseeable future. Where possible, the extra needed resources should be paid for through more and larger fines and forfeitures against non-compliant employers of illegals, smugglers, document forgers, and the illegal aliens themselves.

A major bipartisan bill now in the House, the Save Act of 2007, responds to the serious resource needs. It provides for the appointment of 13 additional permanent federal judges and two temporary ones in federal court districts on or near the southwest border. The same bill provides for 8,000 additional beds for detained illegal aliens through construction or contracts with private facilities and authorizes 8000 additional border patrol agents. The bill deserves the support of all concerned about immigration-fed population growth.

Some of the best deterrents and sanctions against unlawful migrants are already on the statute books and require no more haggling in Congress. We urge determined efforts to apply them strictly and persistently. They include:

"Expedited removal" provisions of INA. These laws circumvent the overloaded immigration courts and confer broad and versatile powers for immigration enforcement on the executive branch. But they have been applied sparingly and timidly since their 1996 enactment. Full use of them would permit the summary removal of hundreds of thousands of illegal aliens, from Mexico and other countries, with far shorter detention periods than now required Penalties for employers that knowingly hire illegal aliens remain on the statute books. But during the Clinton administration and, until recently in the Bush administration, they have been little used. Prosecutions increased modestly during 2007, but they need to be expanded ten-fold to be a credible deterrent to employers and those they hire and to ensure jobs for U.S. workers in a depressed economy. Rarely used is a law providing that aliens residing illegally in the U.S. for more than six months are barred from re-entry for six months up to ten years. As many as 2.5 million aliens could have been barred under this provision in its first four years on the books, but only about 12 thousand actually were.7

Investment now in the detention space, courts and the attendant legal apparatus would be an investment in lower law enforcement costs down the road and would cost considerably less than the future social and environmental costs of mass illegal immigration.

1. Zero Tolerance for Illegal Immigration: An Urgent Policy Need. NPG Position Paper, May 2006 2. 8 US Code 1225 (b)(1)(A)(iii) 3. 8 US Code 1324 4. Arthur Rotstein, Program to Prosecute Illegal Immigrants Set to Expand in Arizona, Assoociated Press, January 12, 2008 5. www.uscourts.gov/judbus2006/appendicies/d2c.pdf 6. www.uscourts.gov, cited above 7. NumbersUSA: Immigration Laws the Administration is NOT Enforcing, 2007