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US: Prosecuting Migrants is Hurting Families

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Immigration Reform Should End Costly, Misguided Criminal Cases

(Washington, DC) – The skyrocketing criminal prosecutions of migrants for illegally entering or reentering the United States carry huge human and financial costs, Human Rights Watch said in a report released today. Imprisoning migrants with minor or no criminal records before deporting them often affects people seeking to reunite with their families in the US or fleeing persecution.

The 82-page report,  Turning Migrants Into Criminals: The Harmful Impact of US Border Prosecutions,”  documents the negative impact of illegal entry and reentry prosecutions, which have increased 1,400 and 300 percent, respectively, over the past 10 years and now outnumber prosecutions for all other federal crimes. Over 80,000 people were convicted of these crimes in 2012, many in rapid-fire mass prosecutions that violate due process rights. Many are separated from their US families, and a large number end up in costly and overcrowded federal prisons, some for months or years.

“The US government is turning migrants into criminals by prosecuting many who could just be deported,” said Grace Meng, US researcher at Human Rights Watch and author of the report. “Many of these migrants aren’t threats to public safety, but people trying to be with their families.”

The Senate immigration reform bill, proposed by the bipartisan “Gang of Eight,” calls for an additional US$250 million for increased prosecutions of these cases in Tucson, Arizona, and increasing the maximum penalties for many categories of people charged with illegal entry and reentry. The US government should instead end unnecessary prosecutions for illegal entry or reentry.

The report is based on a thorough analysis of US government data and interviews with more than 180 people, including migrants and their families, lawyers, prosecutors, and judges. 

The rapid growth in federal prosecutions of immigration offenses is part of a larger trend in which criminal law enforcement resources have been brought to bear on immigration enforcement, traditionally considered a civil matter. Illegal entry – entering the country without authorization – is a misdemeanor. Illegal reentry – reentering after deportation – is a felony. 

The US government claims these prosecutions are necessary to keep dangerous criminals from entering the United States and to deter illegal immigration. But the immigration prosecutions are not meeting their purported goals.

Instead, many of those targeted for prosecution are non-citizens with minor or no criminal histories. In 2011, 27 percent of those prosecuted for entry crimes had no prior felony convictions, and only 27 percent had criminal convictions considered “most serious” by the US Sentencing Commission, such as a conviction for a crime of violence or a firearms offense. A decade earlier, in 2002, 42 percent had criminal histories considered “most serious” and 17 percent had no prior felony convictions.

Texas Magistrate Judge Felix Recio told Human Rights Watch that the US government has created a “felony class” of non­citizens: “Where there’s no criminal history, no immigration history, the criminalization of these defendants is something that’s very difficult [for me].” Defense attorneys noted that even among people with more serious records, many have very old convictions and have lived law-abiding lives for years.

Moreover, many of those who enter or reenter the US unlawfully do so for reasons completely unrelated to conventional notions of criminal activity, such as the desire to reunite with family or because they are fleeing violence and persecution abroad. US District Judge Robert Brack, who estimated he has sentenced over 11,000 people for illegal reentry, stated, “For 10 years now, I’ve been presiding over a process that destroys families every day and several times each day.”

Yet rather than evaluating whether these prosecutions are meeting their intended goals, the US government seems intent on doing more of the same. Recent data from the US Department of Justice indicates that in the first six months of fiscal year 2013, immigration prosecutions were up 10 percent.

 Increasing immigration prosecutions would be counterproductive and wasteful. The volume of border prosecutions has overwhelmed federal courts along the southwest border, leading the US federal criminal justice system to adopt short-cuts, including rapid-fire group trials that imperil the due process rights of defendants charged with illegal entry or reentry.

Immigration prosecutions draw resources away from organized crime and other issues that more seriously affect border security, Terry Goddard, a former Arizona attorney general, told Human Rights Watch. Illegal entry offenders sentenced under the federal sentencing guideline serve an average of 19 months in federal prison. Immigration offenders now make up 30 percent of people entering the federal prison system, which increasingly contracts with private prison companies to hold non-citizens convicted of these offenses.

Human Rights Watch said the Senate bill takes an important step by barring criminal prosecution of asylum seekers and by allowing some people who have been deported to apply for legal status, but it bars most people deported for non-immigration criminal convictions, however how old or minor their offense.

The United States has a clear interest in regulating the entry and stay of migrants in its territory, but the mass immigration prosecutions of illegal entry and reentry often infringe upon other rights. Human Rights Watch urged the US government to impose only civil penalties on people caught crossing the border illegally and to include in comprehensive immigration reform clear avenues for people who have been deported to apply to return to the US legally.

“If the Obama administration and Congress are serious about reforming immigration to protect families, they should give all people who have been deported and separated from their families a chance to prove they can contribute to society,” Meng said. “Otherwise, the government is doomed to continue spending millions prosecuting and incarcerating people with strong ties to the US.”