Prosecuting Immigration Crimes in the Interior

By Dan Cadman, March 10, 2017

My colleague Joseph Kolb has written a valuable blog post on how important it is to use prosecution of immigration crimes as one tool in the arsenal to combat illegal immigration to the United States.

In his post, he discusses the Border Patrol's "consequence delivery system" (CDS) — a mapped-out table of ways to ensure that illegal immigration at the border is met with timely and appropriate consequences, one of which is to promptly prosecute offenders.

That system was the subject of political meddling during the prior administration, which sought to mitigate away many of the consequences in its desire to render the tidal wave of illegal immigration by unaccompanied minors and whole families both benign and invisible to the public eye. For example, under the Obama administration the "most effective/efficient consequence" for family unit apprehensions was deemed to be issuance of a notice to appear (NTA) at an undetermined date in the future at an immigration court — even though with backlogs of over 500,000 cases, in practical terms this ensured that family units were assured of remaining in the United States up to three years or even longer while awaiting their hearing, even though statistics clearly show that the rate of absconders in such units is extraordinarily high. By contrast, in the Obama version of the CDS, voluntary return for family units, was deemed least desirable/effective. (See figure 3 in this Government Accountability Office report.) In other words, the CDS was manipulated to stand logic on its head even as the flow of alien minors and family units continued across our southern border in the tens of thousands for several years.

It was objection to politicization of the CDS that resulted in the present Border Patrol chief (who was then a deputy) being passed over and sidelined by the Obama White House in favor of an outsider, a former FBI agent who had no relevant experience supervising a uniformed patrol presence or of overseeing border security work. With the election and inauguration of the current president, the FBI retiree was pushed out and the sidelined deputy was promoted and is now chief. I am sure that under his leadership and with his experience, we will see the CDS modified to include emphasis on the kind of border-related criminal prosecutions mentioned by Kolb, such as illegal entry into the United States (see 8 U.S.C. Sec. 1325).

The fly in the ointment where that particular crime is concerned is that it only applies in the immediate border environment, and can't be charged in the interior of the country. That's because, unlike its counterpart crime, illegal reentry into the United States after removal (8 U.S.C. Sec. 1326), simple illegal entry has been held by the courts not to be a "continuing violation". In other words, once you've managed to successfully evade capture in the immediate border region, you're home free where prosecution for this crime is concerned. If you crossed the border without inspection and got into the interior successfully, you can't claim you have not committed a crime because clearly and patently you have. But on the other hand, because of judicial interpretation of the law, you've gotten away with it and can't be prosecuted.

I take it as a given that prosecution of immigration crimes in the interior is as important as it is at the border; in some ways more so, since presumably the government shouldn't want anyone to feel they've gotten one over on the legal system just because they can no longer be prosecuted for illegal entry and since it isn't a crime to overstay your visa (it should be since about half of the aliens illegally in the United States came on visas and just remained).

So exactly what kind of crimes should immigration agents in the interior be focusing on? Certainly they should be referring for prosecution any alien who illegally reenters the United States after being removed under the statute I mentioned earlier; they often do, but some U.S. Attorney's offices in the past have had a blanket policy of declining to prosecute unless it was the aliens' second or third reentry after removal — this is one area in which Attorney General Sessions can have a salutary effect on immigration enforcement by issuing appropriate directives to his prosecutors' offices.

We can also anticipate, in addition to a change in the CDS for treatment of family units, that some of the illegal alien parents who pay smugglers to move their children across the border (thus promoting a horrific trade in the most vulnerable members of any society) will in the future be presented for prosecution for those acts. (See 8 U.S.C. Sec. 1324.) This was made clear in a recent policy memorandum issued by Department of Homeland Security secretary Kelly (see sections L and M in that memo). Again, the attorney general can have a beneficial impact by assuring that, if the case is solid, it will be accepted.

There are a couple of other ways in which the new attorney general can provide a major boost to the effectiveness of immigration enforcement and deterrence.

Judicial Orders of Removal. The Immigration and Nationality Act (INA) provides a statutory basis for "judicial orders of removal." These are orders of removal that sidestep the often lengthy and convoluted immigration hearing process because the orders of removal are pronounced against aliens who are deportable, or will be upon conviction, by the presiding judge in a federal criminal trial. The provision can be found at 8 U.S.C. 1228(c) (Be aware, however, that by legislative error, there are actually two completely unrelated 8 U.S.C. 1228(c) provisions that have never been re-numerated, so you have to be sure you're looking at the right one). This provision simply isn't taken advantage of often, even though it would save tremendous time, money, and effort if routinely sought by U.S. Attorney's offices (e.g., in drug trafficking or weapons cases or the like). Such orders can be structured so as to lay dormant until any period of incarceration is served, after which it's a simple matter of prisoner transfer to ICE, procurement of travel documents, and deportation; no immigration court, no appeals, no relief, etc. This will likely not become the norm, though, unless directed by Sessions.

Prosecution for Willful Failure to Depart or to Comply with Conditions of Release. Right now, there are hundreds of thousands of aliens who either flee from immigration court after being released on recognizance or bail, or who fail to depart when ordered to do so. In any other portion of the federal or state justice systems, such a figure would stir national outrage. The INA provides that aliens who willfully fail or refuse to depart — or, equally important, who willfully fail or refuse to comply with conditions of release — have committed a criminal offense. (See 8 U.S.C.1253.) As with judicial orders of removal, this provision is almost never used. Surely among the 800,000 or so alien fugitives floating about the streets of America, there are some prime candidates for "willful failure" prosecutions; especially those released under alternative-to-detention (ATD) programs who then abscond.

It's worth noting that the immigration courts are part of the Department of Justice (DOJ). Aliens who flee or refuse to comply with orders of removal or release are showing contempt for those courts and judges, and at the same time rendering due process in removal cases meaningless if they are permitted to get away with it. Enforcing compliance with orders of the immigration judges, through prosecution when necessary and appropriate is, or should be, a shared responsibility between DOJ and DHS.