Since the first Democratic presidential debates at the end of June, candidates, pundits and former government officials have discussed whether provisions of law that turn unauthorized border crossing into the federal crime of “improper entry” – in addition to a civil immigration law violation – should be repealed.

The chair of the Republican National Committee characterized the proposal as a call for open borders. Some Obama administration officials have also argued against such proposals. Juliette Kayyem, a Department of Homeland Security (DHS) official during the Obama administration, asserted that Section 1325 was needed to protect borders and deport people. Sarah Saldaña, director of Immigration and Customs Enforcement (ICE) during the Obama administration, urged the law should stay on the books as a “tool” in the “tool box.” Former DHS Secretary Jeh Johnson argued that decriminalizing unauthorized entry was tantamount to a declaration that our borders are open.

Much of the debate has unfortunately failed to make clear that, even without these criminal laws on the books, the border would still be guarded by Customs and Border Patrol (CBP) agents, drones, fencing and (some) wall, and people who cross the border without authorization would still be subject to the administrative system Congress created to address violations of U.S. immigration law. For example, they would still be taken into Border Patrol custody, put into the administrative deportation system’s proceedings, deported if they are not ruled eligible for asylum or other relief, and in the meantime held – often unnecessarily – in ICE detention facilities for weeks, months or longer. Other laws would still criminalize smuggling, trafficking and a wide range of other criminal conduct should a person who crossed the border have committed such crimes.

Also absent from much of the debate has been information on how laws that criminalize entry and reentry actually work in practice and how they have been used to punish asylum seekers and migrants in violation of due process and U.S. refugee treaty prohibitions – long before the Trump administration’s zero tolerance/family separation fiasco, and continuing to this day.

Over the last three years, researchers at Human Rights First have conducted extensive research and observed countless entry and re-entry prosecutions in Arizona, California, New Mexico and Texas. These prosecutions, as we have detailed in a series of reports, violate U.S. refugee treaty obligations, impinge on due process, separate children from their parents, waste government funds, and divert prosecutorial resources from serious criminal and security threats.

The laws’ history and use

Given the roots of these criminal law provisions, their unjust impacts should be no surprise. Their champion, Sen. Coleman Livingstone Blease, of South Carolina, was a pro-lynching white supremacist. In 1929, he proposed legislation to make entering the United States without first obtaining immigration authorization a misdemeanor (i.e., illegal entry) and returning to the United States after deportation a felony (i.e., illegal reentry).

These prosecutions were relatively low until the Bush administration launched “Operation Streamline,” an initiative between DHS and the Justice Department (DOJ) to prosecute hundreds of border crossers a day through fast-track mass hearings. Operation Streamline reached its zenith in 2008, operating in eight federal district courts along the southwest border. Criminal prosecutions for immigration offenses doubled from nearly 40,000 in 2007, to 80,000 in 2008, rising to nearly 98,000 in 2013 under the Obama administration.

During his first week in office, President Donald Trump signed an executive order calling on DOJ to make the criminal prosecution of immigration offenses a “high priority.” Over the next year, prosecutions rose sharply, with more asylum seekers and initial entrants targeted. Reports started to trickle out from the media, Human Rights First and others that children had been taken from their parents in some cases.

In April 2018, the Trump administration announced its zero tolerance policy, making clear that asylum seekers would be prosecuted for crossing the border, and children would be taken from their families through these prosecutions. In the wake of the administration’s announcement, federal criminal prosecutions of asylum seekers and migrants along the southwest border escalated sharply, and over 3,000 children were taken from parents who were subjected to these prosecutions. (The purposeful effort – by Customs and Border Protection (CBP) under the Trump administration – to block asylum seekers from, and reduce asylum claims at, official border ports of entry, led – as CBP knew it would – to increases in unauthorized crossings.) About 94,000 asylum seekers and migrants were subjected to these prosecutions last year, according to government data analyzed by Syracuse University’s Transactional Records Access Clearinghouse (TRAC).

Misused to penalize asylum seekers

But long before – and since – the peak of the zero tolerance fiasco, these laws have been used –under multiple administrations – to subject refugees seeking asylum to penalties in violation of the 1951 Convention Relating to the Status of Refugees (“Refugee Convention”) and its Protocol. The Refugee Convention, drafted in the wake of World War II, protects refugees from return to persecution and prohibits states from penalizing them for illegal entry or presence. The United States helped lead efforts to draft the Convention and ratified its Protocol, legally binding itself to the Convention’s provisions.

Article 31(1) specifically forbids States from penalizing refugees for illegal entry or presence in most cases. Asylum seekers who transit through another country are protected by Article 31—unless they have received asylum elsewhere. The prohibition on penalties applies to asylum seekers who are present after crossing a border without authorization, including those who are detained or apprehended before they are reasonably able to make a claim for asylum.

In 2015, under the Obama administration, the DHS Office of Inspector General (OIG) raised concerns about CBP’s practice of referring asylum seekers for criminal prosecution, noting U.S. treaty obligations to refrain from penalizing refugees for their manner of entry or presence. The U.S. Commission on International Religious Freedom flagged similar concerns in a 2016 report on the treatment of asylum seekers in expedited removal.

Human Rights First’s researchers have observed countless prosecutions of asylum seekers who, despite crossing into the United States to seek asylum were referred by DHS for prosecution instead of being referred to a credible fear screening interview (which determines whether asylum seekers will be immediately deported under expedited removal or allowed to have their asylum requests considered by an immigration judge) or the immigration court removal process (where they can file an asylum application). In violation of Article 31, DHS continues to refer asylum seekers for criminal prosecutions, while federal prosecutors routinely fail to drop charges or stay prosecutions involving asylum seekers, and federal judges and magistrates proceed with convictions.

For instance, in one case, a Mexican asylum seeker who had been severely persecuted due to his sexual orientation was referred by CBP for criminal prosecution, and DOJ lawyers threatened to increase the recommended criminal sentence if he refused to waive his right to seek asylum. The Houston Chronicle reported that Border Patrol referred a mother and father, who were fleeing government threats in Venezuela, for criminal prosecution for illegal entry and separated them from their 15-year-old daughter. A Honduran woman who fled death threats called U.S. authorities after she safely crossed the border but was referred for criminal prosecution and convicted of illegal entry in a group hearing in December 2017 even though she told U.S. border officers she wanted to seek asylum. Just last month, Human Rights First court monitors saw many Cuban asylum seekers criminally prosecuted for improper entry.

A 2017 Human Rights First survey of defense attorneys indicated that—even before the zero-tolerance policy went into effect—a significant portion of illegal entry and reentry clients were asylum seekers. Of the defense attorneys who practice along the southern border, 48 percent indicated that more than half of their clients were asylum seekers, and 66.7 percent indicated that asylum seekers made up more than 25 percent of their caseloads.

A due process disaster

These prosecutions have not only been used to improperly punish asylum seekers, but the en masse fast-track prosecutions for illegal entry and reentry violate due process and other constitutional protections. In most courts, Operation Streamline, which became part of the “Criminal Consequence Initiative (CCI)” in 2016, combines each defendant’s initial appearance, preliminary hearing, plea, and sentencing into one hearing that can last less than one minute. A 2010 analysis concluded that streamline prosecutions violate the Constitution and result in “assembly-line justice” that deprives migrants of procedural due process.

In multiple reports, Human Rights First has described how the speed of the trial, their en masse nature – 70 to 90 people at a time, during some of our researchers’ courtroom observations – the lack of sufficient time to consult counsel in many cases, and insufficient efforts to overcome language barriers undermine the right to a fair trial and to effective counsel. One attorney handling these cases described the process to Human Rights First as follows: “Clients merely answer ‘yes’ or ‘no’ one after the other almost like parrots repeating one after the other without meaningful understanding.”

Illegal entry and reentry prosecutions overwhelmingly impact Hispanic individuals at an alarmingly high rate. Of the more than 700 cases Human Rights First observed in advance of its January 2018 report, all but seven prosecuted individuals were Hispanic. In fiscal year 2016, 99 percent of individuals convicted of illegal reentry were Hispanic.

International human rights authorities have repeatedly raised concerns about the criminalization of migrants. For example, the U.N. Special Rapporteur on the human rights of migrants stressed that “irregular entry or stay should never be considered criminal offences,” and the U.N. Working Group on Arbitrary Detention concluded that “criminalizing illegal entry…exceeds the legitimate interest of States to control and regulate irregular immigration and leads to unnecessary detention.”

Resource diversion

Last year, immigration prosecutions amounted to 57 percent of the federal criminal docket, according to government data collected by TRAC. These criminal prosecutions have long raised concerns about the de-prioritization of other prosecutions, including serious or violent felonies. A 2010 study concluded that Operation Streamline “diverts crucial law enforcement resources away from fighting violent crime along the border, [and] fails to effectively reduce undocumented immigration.” The Vera Institute pointed out that some federal judges and prosecutors had expressed concern that Operation Streamline diverted law enforcement and judicial attention away from the activities of violent organized gangs or drug cartels and toward the prosecution of low-level entry crimes.

In June 2018, 70 former U.S. Attorneys—who had served under both Democratic and Republican administrations— issued an open letter objecting to the Trump administration’s zero tolerance prosecutions and family separations. They explained that “It is a simple matter of fact that the time a Department attorney spends prosecuting misdemeanor illegal entry cases, may be time he or she does not spend investigating more significant crimes like a terrorist plot, a child human trafficking organization, an international drug cartel or a corrupt public official.” While focused on zero tolerance prosecutions, rather than the criminal provision’s existence, they noted that “firearms cases, violent crime cases, financial fraud cases, and cases involving public safety on Indian reservations all take a back seat to these lesser, weaker misdemeanor cases.”

Proponents of these criminal prosecutions claim they are needed to deter border crossings. But the DHS Inspector General found, in its 2015 report, that CBP was unable to demonstrate that Border Patrol referrals of apprehended migrants for prosecution by U.S. Attorney’s Offices actually deterred unauthorized migration. In a June 2018 analysis of government data, the Vera Institute of Justice concluded that “contrary to DHS’s premise, there is no evidence to support the conclusion that Operation Streamline succeeded in deterring unauthorized border crossings, nor that it had any effect whatsoever on immigrants’ decisions to come to the United States.” The Vera Institute also cited an analysis conducted by academic researchers that had “found no evidence of a deterrent effect in any [Border Patrol] sector.”

Far from being a critical “tool” in a toolbox, these laws are blunt weapons that have been wielded for years – in violation of due process and U.S. treaty commitments. They subject migrants and asylum seekers to criminal detention, family separation, criminal prosecutions and criminal jail time. As a result of its research, Human Rights First urged the Trump administration to end its criminal prosecution policy and for Congress to repeal the relevant provisions in sections 1325 and 1326 of U.S. Code, at the very least substantially amending them. We pointed out that immigration law violations should be handled through the civil administrative system that Congress created to address cases of asylum seekers and migrants in the United States without legal status – a system that currently includes CBP, ICE, USCIS and the DOJ’s immigration removal proceedings.

To be sure, the Trump administration is also using other means to separate some families, and there are crucial steps that Congress and a next administration must take to restore order and uphold U.S. refugee law at the border. Human Rights First and other groups have urged restoring orderly asylum processing at ports of entry, launching a long overdue case management system, and upgrading the asylum and immigration court adjudication systems to provide fair, non-politicized, and timely decisions, in addition to tackling the abuses pushing people to flee their countries and supporting efforts to expand refugee protection in other countries.

While the political and messaging debate will no doubt rage on, serious policy discussions about the statutes criminalizing irregular entry and their potential repeal must look at the long history of their use to violate due process and U.S. treaty commitments, and examine the harms of criminalizing refugees and migrants rather than handling their cases through immediate referrals into the civil immigration system.

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