AG Sessions Should Enhance Border Security by Improving Dismal Prosecution Rates

By Joseph J. Kolb on March 7, 2017

President Trump demonstrated his serious intent to address a problem that has been worsening for some years by signing of executive orders that officially authorized construction of a wall between the United States and Mexico, ceased the frustrating "catch and release" policy imposed on the Border Patrol by the Obama administration, and called for hiring more Border Patrol and ICE agents. For Trump's plan to work, his administration — in particular Attorney General Jeff Sessions — also needs to fix the problem of dismal prosecution rates of illegal aliens apprehended by Border Patrol.

As per agency guidelines, Border Patrol agents must apply at least one administrative consequence (penalty) to every apprehended illegal alien, but may apply more than one consequence, including using a mix of administrative, criminal, and programmatic consequences.

Contrary to what is often reported in the media and by politicians who oppose immigration enforcement, illegal entry is a crime (8 USC § 1325). On the first offense an alien may be charged with a misdemeanor and fined and/or imprisoned for up to six months. Subsequent violations may be charged as a felony, drawing a fine and/or imprisonment for up to two years.

A January 2017 Government Accountability Office report on the Border Patrol's need for better oversight in the application of post-apprehension consequences revealed that federal prosecution is a highly effective and efficient consequence for most case types, including aliens who have been apprehended for the first and second time, as well as more persistent illegal crossers, smugglers, and criminal aliens.

Despite this reasonable assessment, prosecutions along the southwest border in recent years by U.S. attorney offices, which must handle these cases, have been declining at a noticeable rate.

According to the U.S. Border Patrol, in FY 2015 only 23 percent of the 337,117 people they apprehended were prosecuted by the Department of Justice for illegal entry or narcotics trafficking. In FY 2016 that number dropped to a concerning 18 percent out of 415,816 apprehensions.

For instance, in FY 2015 only 6.1 percent of the 147,257 apprehensions were prosecuted in the Rio Grande Valley Sector of Texas. This was followed in FY 2016 with only 5 percent of 186,830 apprehensions.

The highest prosecution rate occurred in the Del Rio sector: 57 percent in 2015 and 60 percent in 2016; Tucson had a 48 percent rate in 2015, but dropped to 37 percent in 2016; followed by El Paso with 42 percent in 2015 and 26 percent in 2016. One possible explanation was the rise in other-than-Mexican (OTM) immigrants, the majority of whom were unaccompanied children (UACs) and family units from Central America, who came through Tucson and El Paso in 2016. In the Tucson sector in 2015 there were 14,481 OTM cases, which rose to 18,397 in 2016. In the El Paso sector, the increase was more profound. In 2015 there were 3,818 OTMs apprehended, compared to 11,974 in 2016.

Operation Streamline was launched in 2005 and imposed a "zero tolerance" policy for illegal crossings along certain sections of the border, leading to prosecution and detention for all those apprehended. While Streamline was criticized by immigrant advocates as herding migrants en masse into court without due process, it actually proved to be effective in preventing recidivism by persistent aliens (those with multiple attempts), smugglers, and criminal aliens.

So if prosecution works, why such low numbers? According to the GAO report, the U.S. Attorney's Office contends space and resource constraints greatly impact its ability to accept and prosecute cases, forcing Border Patrol agents to resort to other penalties. However, many in the Border Patrol are skeptical of this explanation and feel it is more of a political excuse.

The failure to prosecute quickly sends a message not only to Mexico but also El Salvador, Guatemala, and Honduras. Frustrated Border Patrol agents see the lack of prosecution as the United States essentially daring people not to try to enter the country illegally. This sense of impunity is borne out by an illegal crossing recidivism rate that hovers around 30 percent, according to the GAO report.

While the Trump administration's new policies are controversial to some, Chris Harris, an agent and officer of the National Border Patrol Council, which endorsed Trump, believes the previous policies were a failure. Harris saw the results firsthand, patrolling the line in the San Diego sector — which had a 7 percent prosecution rate in 2015 and 8 percent for FY 2016 — and strongly believes these numbers need to improve quickly.

To strengthen the message that will be sent by the wall, Trump and Sessions must affirm to prospective illegal aliens that if you are caught, especially smuggling narcotics or humans, you likely will be prosecuted. Ideally, Operation Streamline or a similar approach using rapid prosecution and disposition of cases should be reinstated.