On May 7, 2018, the Department of Justice (DOJ) implemented a zero tolerance policy toward illegal border crossing both to discourage illegal migration into the United States and reduce the burden of processing asylum claims that Administration officials contend are often fraudulent. The stated goal of the policy is to prosecute all of the prosecutions referred to the DOJ “to the extent practicable.” With limited resources, no Administration has been able to prosecute 100% of the illegal crossings.
Prior Administrations focused on individuals, and did not prosecute families. The current Administration reversed this, ignoring individuals and prosecuting families. Criminally prosecuting adults for illegal border crossing requires detaining them in federal facilities, where children are not permitted.
A 2015 court settlement requires that separated children must be removed from immigration detention centers within 20 days. Since the parents are still in custody, due to huge backlog of cases, the children are turned over to Health and Human Services (HHS) for care. The Administration had no effective system for tracking and reconnecting the parents and children.
Facts You Should Know
- Family arrests increased from 11,000 in Fiscal Year (FY) 2012 to 68,560 in the first nine months of FY 2018. In FY 2019 the U.S. Customs and Border Patrol apprehended more than 474,000 minor children and adults traveling as families and about 76,000 unaccompanied children along our Southwest border.
- The national origin of the families has shifted from Mexico to mostly Central America.
- Physical presence in the United States without proper authorization is a civil violation, not a criminal offense. The US Department of Homeland Security (DHS) can deport individuals, but cannot charge them with a criminal offense based solely on a civilian infraction.
- Per Title 8 of the US Code it is a crime to enter or re-enter the United States:
- Without proper inspection at a port of entry or when one makes false statements while entering or attempting to enter. A first offense is a misdemeanor with by a fine, up to six months in prison or both.
- After having been deported, ordered removed, or denied admission. This crime is punishable as a felony with a maximum sentence of two years in prison. Higher penalties apply, if the person was previously removed.
- The US Department of Homeland Security estimates that in FY 2020 detention will cost taxpayers approximately $130 per bed for those in adult detention, $269 per bed for those in family detention and over $2.5 billion total for the year.
There are alternatives that are more humane and cost-effective than detention.