The Trump administration has decided to refer every person caught crossing the border illegally for federal prosecution, a policy that could result in the separation of far more parents from their children at the border.
The move would also mean that even if immigrants caught at the border illegally have valid asylum claims, they could still end up with federal criminal convictions on their record regardless of whether a judge eventually finds they have a right to live and stay in the US.
Homeland Security Secretary Kirstjen Nielsen officially enacted the policy on Friday, according to a Department of Homeland Security official speaking on condition of anonymity. It corresponds with a Department of Justice “zero-tolerance policy” for illegal border crossings, under which Attorney General Jeff Sessions has ordered federal prosecutors to pursue criminal charges against all referrals for illegally crossing the border, as possible.
Sessions announced the change and reiterated his agency’s policy at an appearance in Arizona on Monday.
“So, if you cross the border unlawfully, even a first offense, we’re going to prosecute you,” Sessions told a gathering of the Association of State Criminal Investigative Agencies. “If you’re smuggling a child, we’re going to prosecute you, and that child will be separated from you, probably, as required by law. If you don’t want your child to be separated, then don’t bring them across the border illegally.”
In Sessions’ prepared remarks, he pledged his department would take up as many of the referrals from DHS “as humanly possible.”
The policy would not apply to asylum seekers who come to an official port of entry to the US without paperwork – those individuals would only be placed into immigration proceedings.
But by referring immigrants caught illegally crossing for criminal charges, the move means adults coming across the border with children will be separated from those children as they await their criminal proceedings.
In one recent example of how the policy works, a woman who is suspected by the Justice Department of being part of the migrant caravan that was caught in a group north of the border was charged with illegal entry to the US and separated from the four young children who were with her. Her lawyers have fought back, accusing the Justice Department of discriminating against her for being Central American.
It has long been a misdemeanor federal offense to be caught illegally entering the US, punishable by up to six months in prison, but the administration has not always referred everyone caught for prosecution. Those apprehended were swiftly put into immigration proceedings and, unless they met the threshold to pursue a valid asylum claim, can be quickly deported from the country.
The current DHS plan makes no special arrangements for those who claim asylum when apprehended. While they will be allowed to pursue their claims and could eventually be found to have a legitimate right to live in the US, they could still already have a conviction for illegal entry.