The administration’s “zero-tolerance” criminal immigration enforcement policy resulted in the separation of immigrant families, which led to a powerful public outcry and the president halting family separation in favor of detaining families together.
Under zero tolerance, adults who illegally enter the United States, with or without children, must be referred for prosecution. Because children arriving with their parents cannot be held in jails or prisons with them, they are processed as unaccompanied minors. This can mean detention for children who are separated from their parents.
This situation is the result of many years of tightening the federal immigration system through criminal case processing. Families entering the country without authorization are now targeted by federal criminal law, whereas they had once been handled primarily by the civil immigration system. The narrowing of this criminal-civil gap over many years has paved the way to the current administration’s zero-tolerance policy and the family separation crisis.
How America has prosecuted immigration activity
Current immigration enforcement practices have been in place since at least the mid-1990s, but these practices were ramped up during the early 2000s. This strengthening included increased funding and hiring for immigration agencies, collective case processing and prosecutions along the Southwest border, and shifts from voluntary returns to formal deportations (or removals) that involve both civil and criminal consequences for reentry.
Operation Streamline, a prosecution initiative that went into effect in 2005, involves the mass charging of individuals for illegal entry offenses. This, along with early disposition programs, has expanded the capacity to criminally prosecute low-level immigration offenses through group hearings that involve quick guilty pleas.
Increased use of deportation also allows for more punitive civil and criminal sanctions upon return to the country. Unlike administrative “voluntary returns” to one’s home country, formal deportations make it difficult to obtain legal status in the future and can result in felony charges upon reentry. This is because prior deportations can be used to charge a person with the more serious “illegal reentry” offense under 8 U.S.C. § 1326.
Such heightened enforcement strategies for illegal immigration have led to a surge in the number of arrests and prosecutions of noncitizens, who are mostly in the federal justice system for first-time border crossing violations. Although the number of federal cases prosecuted annually has started to decline, immigration continues to represent large shares of these cases. At the same time, apprehensions of people who illegally enter the US have decreased.
The zero-tolerance policy took tough enforcement to a new level
Though tougher enforcement has historically been aimed at deterring and removing criminal immigrants from entering or remaining in the country, the administration’s zero-tolerance policy affects a larger number of noncitizens and broadens the classification of “criminal” through greater prosecution of misdemeanor violations. Specifically, this policy requires that charges be brought in all cases for the first “illegal entry” offense (8 U.S.C. § 1325).
This requirement affects Customs and Border Protection’s discretion to process or refer cases solely for civil or administrative processing, which is how many of these cases were previously handled. Thus, a larger number of immigrants will likely be prosecuted, convicted, and deported for first-time entry offenses.
This requirement also resulted in the family separation crisis, despite any explicit policy on separating immigrant parents from children. Notably, one piece of criteria the Department of Homeland Security used to determine when to separate families was whether the parent or guardian had been referred for criminal prosecution. This tied civil immigration matters involving migrant families to criminal prosecution.
Zero tolerance doesn’t mean effectiveness
Zero-tolerance policies, such as those that aggressively target misdemeanors, strain justice system resources and fill prisons with people who pose no public safety risk. They also lead to collateral consequences for the individuals and families swept up by these enforcement strategies, which have little evidence of deterring immigration or increasing security. Moreover, the use of alternatives, such as supervised release, can reduce the financial and human costs of detaining immigration violators.