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.