U.S. to Prosecute Parents Entering Illegally with Children

An unpopular but necessary step

By Andrew R. Arthur on May 8, 2018

Under a new policy, the U.S. government will be prosecuting aliens who enter illegally, including aliens traveling with children. While this is a seemingly harsh action, it is crucially needed to stem the flow of aliens traveling in family units who are making the perilous journey to enter the United States illegally.

As the Wall Street Journal describes it:

The Trump administration plans to step up the prosecution of parents who cross the U.S. border illegally with their children, separating more families in hopes of deterring such crossings, officials said.

. . .

Under the new policy, adults will still be able to apply for asylum, but they may be detained while their cases are considered. Children will be treated as if they had arrived in the U.S. without an adult. Unaccompanied children from countries other than Mexico and Canada are placed with family or in shelters while their cases are considered by immigration courts, a process that can take years.

Under current policy, many families are released whole while their asylum cases are processed.

Section 275 of the Immigration and Nationality Act provides criminal penalties for those who enter, or reenter, the United States illegally. First time illegal entrants face a fine and a misdemeanor penalty of up to six months in jail, while illegal reentrants face a fine and a felony two-year sentence. There are no exceptions in the INA to prosecution for adult aliens who are traveling with children.

In April 2017, according to U.S. Customs and Border Protection (CBP), 1,118 aliens traveling in family units were apprehended by the Border Patrol. By last month, one year later, that number had increased to 9,647, a more than eight-fold increase, according to CBP.

Detention and prosecution of aliens entering illegally is key to deterring other aliens from doing the same in the future. As I explained in a recent Backgrounder on the loopholes that continue to promote "catch and release" along the Southwest border despite the president's best efforts to end that practice:

Prosecuting aliens under section 275(a) of the INA, particularly if those convicted receive significant sentences, will make it less likely that foreign nationals will attempt illegal entry into the United States. Logic dictates that the higher the penalty (including jail time) imposed for a criminal violation, the less likely that the criminal will attempt the offense. This is especially true in immigration, where convictions make it less likely that an alien will receive discretionary relief, and where the vast majority of aliens are coming to the United States to work. If they are detained and convicted (and subsequently deported), they will have spent money on smuggling fees that they will not be able to recoup by working in the United States.

The population of aliens entering illegally has changed dramatically in recent years. According to the Department of Homeland Security (DHS), prior to 2011, 90 percent of all arriving aliens were single adult males, while today some 40 percent of arriving aliens are families and children. While there is significant crime and disorder in the countries from which most of those aliens come, the loopholes that I described in that Backgrounder have encouraged that shift.

DHS reported in February that more than 167,000 aliens in family units were apprehended by CBP between FY 2016 and the date of that publication, nearly all of whom were released into the interior of the United States "because of judicially-imposed constraints on" the authority of U.S. Immigration and Customs Enforcement (ICE) "to detain the entire family units as a result of recent rulings in the Flores consent decree litigation." As I explained in the Backgrounder, the Flores agreement, "which was originally signed in 1997, has now been read to create a presumption in favor of the release of all alien minors, even those alien minors who arrive with their parents."

This policy change is a significant (and likely unpopular) step for DHS to take, but it is absolutely crucial not only to reducing the flow of parents and their children (or their purported children) entering the United States illegally, but also to protecting those foreign nationals from the predations of alien smugglers.

ICE detailed the dangers those aliens face at the hands of smugglers in a release last updated in January 2018:

While smugglers most often transport adult males, the number of women, children and family units seeking transport has increased dramatically in recent years. They often find themselves at risk for assault and abuse such as rape, beatings, kidnapping and robbery. Smugglers regularly overcrowd living and sleeping accommodations, and withhold food and water. In addition, individuals who are smuggled may be forced into human trafficking situations upon their arrival in the U.S. or their families may be extorted. Even knowing these dangers, the majority of people who travel with a smuggling organization do so voluntarily.

Immigration advocates often argue that aliens understand the dangers posed by smugglers, but deem those dangers less formidable then the risks of remaining in their home countries. Respectfully, the real danger posed by any individual smuggler is comparable to the danger associated with driving across standing water on a roadway in a deluge: only apparent when it is too late.

Holding out the prospect to foreign nationals who are considering entering the United States illegally of release into the interior simply encourages more of those foreign nationals to undertake this risky journey. No one in the federal government wants to separate parents from their children for no reason at all. Given the prospects of a surge on the scale of that seen in 2014 and 2016, when large numbers of alien minors and family units converged en masse on the border, and the perilous nature of the journey that would bring them to that border, there really is no other choice.

One final point about this policy change bears emphasizing. It was apparently initiated in response to an April 23, 2018, memorandum first reported on by the Washington Post. The paper reported:

The nation's top immigration and border officials are urging Homeland Security Secretary Kirstjen Nielsen to detain and prosecute all parents caught crossing the Mexican border illegally with their children, a stark change in policy that would result in the separation of families that until now have mostly been kept together.

According to the Post, that memorandum was signed by Acting Director of ICE Thomas Homan, Director of USCIS L. Francis Cissna, and CBP Commissioner Kevin K. McAleenan. Although each of them was nominated to their positions by President Trump, the three are career professionals, with a total of more than 50 years,of non-political service between them.

This policy change is not, therefore, some anti-immigrant screed by a policy purist; instead, the new prosecution policy was apparently recommended by three of the most experienced professionals in the field of immigration.

Although this change in policy may seem harsh, the alternatives are much, much worse.