To reduce illegal entries, DHS must deter migrants from coming illegally, and the two best deterrents Congress has given the department to deter illegal entrants (aside from removal) are detention — which is mandated for all arriving aliens encountered at the borders and ports — and prosecution under section 275 of the Immigration and Nationality Act (INA) for “improper entry”. The main reason for the migrant surge that commenced shortly after President Biden took office is his refusal to comply with Congress’ detention mandate, as a federal judge held last March, but now DOJ’s “Prosecuting Immigration Crimes Report” (PICR) details the extent to which migrant prosecutions have declined in the past five years, as well.
PICR. In its latest iterations, the PICR is little more than a compilation of data prepared by DOJ’s Office of United States Attorneys, showing the number of aliens who have been prosecuted for various immigration-related offenses by court and nationality.
That’s a shame, because the August 2019 version of the PICR was a robust narrative that not only fleshed out the raw data and put it into context, but also offered examples of some of the most serious offenders implicated in immigration crimes.
For example, there was this, out of the U.S. District Court for the Middle District of Florida:
Ramon Lopez-Alvarado, an undocumented alien from Mexico, was sentenced to 14 years in prison for illegal reentry into the United States and failure to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA). Lopez-Alvarado pled guilty to failing to register as a sex offender and a jury found him guilty of illegal reentry. Lopez-Alvarado had previously been removed from the United States on three occasions after being convicted of committing lewd acts on a child and failing to register as a sex offender. When Lopez-Alvarado illegally returned to the United States, he again failed to register as required by SORNA. [Emphasis added.]
Or this, from the U.S. District Court for the Eastern District of Virginia:
Luis Bonilla-Hernandez, of El Salvador who was illegally in the United States, was sentenced to over two years in prison for running an illegal commercial sex business that catered to the Hispanic community in Northern Virginia. For over three years, Bonilla-Hernandez and co-conspirator, Eliazar Duran Mota, ran the illegal business out of their homes in Sterling and Herndon. ... Each week, Bonilla-Hernandez and Duran Mota would obtain a woman to work for a week at a time. ... After a woman worked for a week, Bonilla Hernandez and Duran Mota would switch out their “inventory” by obtaining a new woman from Union Station to work throughout Northern Virginia. [Emphasis added.]
In any event, the August 2019 PICR reveals that in every month in FY 2018 and FY 2019, thousands of aliens were charged with improper entry and related offenses, including marriage fraud, a felony under section 275(c) of the INA.
For example, in the month of January 2019 alone, 8,593 defendants were charged with misdemeanor illegal entry under section 275 before federal magistrates, and charges against an additional 1,740 more serious offenders were filed in various federal district courts.
Keep those figures in mind as I explain what happened next.
FY 2020 PICR. The narratives were gone by the time that the FY 2020 PICR was issued, and the number of aliens charged with misdemeanor illegal entry (for an initial offense; subsequent illegal entries are felonies) dropped, slightly at first and then precipitously.
For example, in the month of January 2020, 4,895 defendants faced charges before federal magistrates under section 275 of the INA, a figure that dropped to 671 three months later (in April) before declining to just 11 that August.
There were a variety of reasons for that decline, at least three of which were Covid-19-related. The first was that the initial CDC Title 42 order, directing the expulsion of illegal entrants to prevent the introduction and spread of the disease, was issued on March 20, 2020.
As a direct consequence, the number of aliens apprehended entering illegally at the Southwest border plummeted, dropping from more than 30,000 that March to fewer than 16,200 a month later. At that point, there just weren’t as many aliens available to prosecute.
The pandemic also prompted DOJ to restrict detention and confinement space to limit contact among defendants, and so the department accepted fewer aliens for prosecution. Further, with expulsion under Title 42 as a much quicker option, agents referred fewer cases to the U.S. attorneys offices to be charged.
And, speaking of quicker options, more than 20,000 illegal migrants in FY 2020 were returned back across the border to await their asylum hearings under the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. Those aliens were not subject to prosecution, but they weren’t allowed to live or work here for years waiting for their cases to finish, either.
FY 2021 PICR. Prosecutions remained low throughout the pandemic, and never resumed at the scale they had been at previously.
In FY 2021, just 261 illegal migrants in total faced charges before federal magistrates for misdemeanor entry, 48 between the months of October 2020 and January 2021 (the end of Trump’s term), and the other 213 in the remaining eight months of that fiscal year under Biden.
FY 2022 PICR. Border Patrol agents apprehended more than 2.2 million illegal migrants at the Southwest border in FY 2022, and yet the PICR for that fiscal year reveals that just 3,172 of them — .14 percent of the total — were subject to prosecution for illegal entry under section 275.
By contrast, in FY 2022, 2,238 migrants were apprehended entering across the Northern border, and the PICR for that fiscal year reveals that 264 of them were prosecuted for entering improperly (244 in the U.S. District Court for the Northern District of New York, 15 in federal district court in Vermont, four in North Dakota, and one in the Western District of Washington), a prosecution rate of 11.8 percent.
In other words, an alien was more than 84 times as likely to be prosecuted for entering illegally from Canada as from Mexico in FY 2022. If you are looking for rhyme or reason, keep looking.
FY 2023. In FY 2023, Border Patrol agents at the Southwest border apprehended nearly 2.046 million aliens who entered illegally, and on May 11 that year, Title 42 ended.
Despite both of those facts, however, while misdemeanor section 275 prosecutions increased slightly, they did not rise by much. Last fiscal year, just 4,963 aliens faced prosecution before magistrates for misdemeanor illegal entry, and almost all of them (4,385) were in Arizona. Compare that to the nearly 231,000 aliens who crossed over the border illegally into California, just a single one of whom was subject to prosecution.
Do the math, and you’ll see that the prosecution rate for illegal entry at the Southwest border in FY 2023 was a mere .24 percent. Meanwhile, on the Northern border, agents nabbed 10,021 illegal migrants, and prosecuted 243 of them for illegal entry — a prosecution rate of 2.4 percent.
Thus, Northern border prosecutions declined in FY 2023, but they were still running 10 times what they were down south, but more importantly, even as the threat of expulsion under Title 42 for entering illegally ended, prosecution as a deterrent was not expanded at either border to take its place.
FY 2024. The PICR for FY 2024 is current through the end of December, and in those three months, agents made more than 629,000 apprehensions at the Southwest border.
According to the PICR, however, just 1,253 of those apprehensions resulted in a prosecution for improper entry (a prosecution rate of less .2 percent), and again nearly all of those prosecutions (1,080) were in Arizona.
SB 4. On December 18, Gov. Greg Abbott (R) signed Senate Bill 4 (SB 4), which — among other things — makes it a state misdemeanor offense for an alien to illegally enter the state “directly from a foreign nation at any location other than a lawful port of entry”.
Given there’s only one “foreign nation” an illegal entrant could cross into Texas from without going through a port of entry, the focus of that provision is on migrants crossing the Rio Grande illegally from Mexico into the Lone Star State.
Ten days later, Brian M. Boynton, DOJ’s principal assistant deputy attorney general, sent Abbott a letter threatening to sue the state unless it “agree[d] to refrain from enforcing” SB 4.
Texas didn’t back down, and on January 3, DOJ filed a complaint in federal court in Austin, Texas, asking the court to declare that SB 4 violates the U.S. Constitution, and to both preliminarily and permanently enjoin it.
The case is captioned U.S. v. Texas, and Biden’s DOJ has fought to keep the state from enforcing SB 4 all the way to the Supreme Court (which would have allowed the law to take effect, briefly) and back to the U.S. Court of Appeals for the Fifth Circuit (which opted to block it while it considers the state’s appeal from a lower court injunction).
In its filings before the High Court, the state contended that SB 4 is consistent with Congress’ border-enforcement scheme, noting that the state law “makes it a crime for an individual to violate federal law” under section 275(a) of the INA, “by crossing into Texas at any location other than a lawful port of entry”.
The state also referenced the federal provision in explaining that “Congress wants everyone to present themselves at lawful ports of entry and has made it a federal crime for them to enter or exit anywhere else” — which is the essential purpose and goal of SB 4.
The Why of Biden’s Nonenforcement. Attached to that brief was a copy of a November 2022 letter Abbott sent to President Biden, in which the governor complained:
The U.S. Constitution won ratification by promising the States, in Article IV, § 4, that the federal government “shall protect each of them against Invasion.” By refusing to enforce the immigration laws enacted by Congress, including [section 275(a)(1) of the INA’s] criminal prohibition against aliens entering the United States between authorized ports of entry, your Administration has made clear that it will not honor that guarantee.
As the foregoing demonstrates, DOJ’s own PIRC reveals that the Biden administration has failed to utilize a law that criminalizes illegal entry into the United States anywhere near as vigorously as its predecessor did, even while migration at the Southwest border has surged — essentially proving Abbott’s point. Unfortunately, the most recent PIRCs never explain why section 275 prosecutions have declined under the current administration.
And not surprisingly, the administration has failed to otherwise offer any reasons for not prosecuting more illegal migrants for improper entry, but I can offer some educated guesses.
First is the fact that Biden’s DHS long ago ditched the migrant deterrence strategies every prior administration had implemented to instead allow all aliens who enter this country — legally or otherwise — to apply for asylum, regardless of the deleterious impacts such polices inflict on our immigration system.
Simply put, because Biden’s DHS presumes that every alien who crosses the border illegally is an “asylum seeker”, it refuses to punish the vast majority of them even though there’s no “asylum exception” in section 275 of the INA (there is one in SB 4).
Second, Border Patrol agents are so overwhelmed rounding up, transporting, processing, and (usually) releasing illegal entrants that they lack the resources to refer more than a handful of them for criminal prosecution.
The White House blames Congress for not giving it additional border resources, but in reality, the DHS secretary has broad authority to “reprogram” other departmental funding for border enforcement. He simply refuses to do so.
That all of this is “penny-wise but pound-foolish” should be blatantly obvious, given that it creates a vicious circle of nonenforcement driven by resource constraints that saps even more resources, resulting in more illegal migration, even fewer prosecutions, and less deterrence.
Third, as I have explained in the past, the Biden administration believes the immigration laws themselves are “inequitable” (if not expressly discriminatory), and for that reason tips the scales in migrants’ favor through its heavy-handed use of “prosecutorial discretion”.
Note that at least one federal district court judge has held that section 276 of the INA — a companion provision to section 275, which makes it a felony for aliens to reenter illegally after being ordered removed — has a “disparate impact on Latinx individuals” and “racist origins and was also motivated by discriminatory intent”, and was therefore unconstitutional.
The Court of Appeals for the Ninth Circuit ultimately reversed that finding, but there are undoubtedly many Biden immigration-policy advisors who concur with the lower court’s logic, not only with respect to section 276 of the INA but section 275, too.
Unless and until the Biden administration reverses course and begins deterring foreign nationals from entering the United States illegally, the chaos at the Southwest border will continue. It can start by detaining illegal migrants and prosecuting them for improper entry under section 275 of the INA, which up to this point, it’s largely failed to do.