Because most immigration offenses are civil offenses, they have traditionally been handled administratively through the federal immigration court system, separate from the criminal justice system. The policies set forth under the DOJ memorandum would leverage existing statutory authority to prosecute immigration offenses as crimes, rather than handling them administratively. In carrying out these policies, the memorandum asks federal prosecutors to prioritize the following offenses:
The “Harboring” of Undocumented Immigrants
8 U.S.C. § 1324 (“[b]ringing in and harboring certain aliens”) and related offenses
The DOJ memorandum encourages federal prosecutors to bring federal criminal charges against those who knowingly bring in, transport or harbor undocumented individuals. The memorandum urges that prosecutors prioritize those who are “bringing in[,] . . . . “transporting or harboring three or more aliens” or cases involving aggregating circumstances. It also urges that charges under related offenses under 8 U.S.C. § 1327 (aiding or assisting entry) and § 1328 (importation of individuals for immoral purposes) also be brought, when appropriate.
Sessions’ statement explained that this priority is aimed at breaking up human trafficking and smuggling networks, including those that work with transnational gangs. The provision, along with the accompanying provisions referenced in the memorandum, can indeed serve as valuable tools for federal prosecutors when appropriately used to prosecute human traffickers.
However, neither the memorandum nor the language of § 1324 make an exception for those who interact with undocumented individuals while carrying out a public service or religious function. While some courts have attempted to interpret § 1324 narrowly to avoid charging individuals for routinely transporting undocumented persons in such a manner that does not further their unlawful presence, the law in this area is not entirely clear. Absent clarification by DOJ, the DOJ memorandum suggests that community and faith organizations – including churches and religious ministries – could potentially face criminal prosecution for “transporting” small groups of undocumented individuals in church-owned buses or vans or “harboring” them through providing basic services or assistance. This interpretation, which indicates there could be criminal liability for such organizations that regularly interact with undocumented parishioners or community members, is reason for concern.
Unlawful Entry and Reentry
8 U.S.C. § 1325 and 8 U.S.C. § 1326 (“[i]mproper entry by alien” and “[r]eentry of removed aliens”)
The DOJ memorandum encourages criminal prosecutions for unlawful entry (to be charged as a misdemeanor) and unlawful reentry (to be charged as a felony) in many circumstances. Sessions’ statement noted that reentry offenses particularly should be prioritized “where indicators of gang affiliation, a risk to public safety or criminal history are present.”
While entry and reentry offenses are already deemed to be criminal offenses under federal law, federal prosecutors are selective in bringing federal criminal charges, often reserving criminal charges to those who enter or reenter to carry out criminal offenses or otherwise pose threats to public safety, including situations involving gang affiliation, public safety risk and past criminal history. To the extent the memorandum focuses on those specific circumstances, it would not necessarily be a departure from past practices.
However, if expanded beyond those circumstances, the memorandum would mark a dramatic shift away from these sorts of threat-focused prosecutions and may undermine public safety. Given the reality of resource constraints – including limited detention space, limited personnel and limited funding in the criminal justice system – prosecutors are hard-pressed to charge each and every border crossing offense as a crime. Efforts to mandate or even encourage such an approach would unnecessarily create fear in immigrant communities while diverting precious resources away from more significant public safety threats.
Applied aggressively, this section of the memorandum, would effectively criminalize a large proportion of the undocumented community, the majority of whom enter the United States to reunite with family or seek work. Effectively criminalizing much of the undocumented population is likely to have adverse effects on public safety, sowing fear in immigrant communities and making immigrant victims and witnesses less likely to cooperate with local law enforcement.
Document Fraud and Identify Theft
18 U.S.C. § 1028A (“[a]ggravated identity theft”) & 18 U.S.C. § 1546 (“[f]raud and misuse of visas, permits, and other documents”)
According to Sessions, consistent with the DOJ memorandum, “prosecutors are directed to charge criminal aliens with document fraud and aggravated identity theft — the latter carrying a two-year mandatory minimum sentence.” While some criminal organizations, transnational gangs, and drug cartels do make use of identity theft and document fraud, the DOJ memorandum extends beyond that limited situation.
To be clear, prioritizing these offenses will result in criminally prosecuting people for working without papers. Because Congress has failed to enact immigration reform to bring needed order to our broken worker visas system, the reality is millions of undocumented individuals work without authorization. A subset of this population may provide false or incomplete information to an employer or may even make use of bad documentation in order to work. While such conduct is problematic and unlawful, it is important to differentiate between the working father who borrows his cousin’s social security number from a criminal organization that steals personal information from unwitting strangers. While it is uncertain how this section of the memorandum would be carried out, it creates the possibility that hardworking mothers and fathers with families will be targeted for criminal prosecution, with dramatic costs to the community and the economy.
Assaulting, Resisting, or Impeding Federal Law Enforcement Officers
18 U.S.C. § 111 (“[a]ssaulting, resisting, or impeding” officers)
The DOJ memorandum calls on federal prosecutors to make use of 18 U.S.C. § 111 “to the extent practicable” to prosecute individuals who assault, resist or impede federal law enforcement officers. In his statement, Sessions called this “a top priority” and noted that “If someone dares to assault one of our folks in the line of duty, they will do federal time for it.”
Additional Policies
In addition to prioritizing immigration offenses, the memorandum addresses the following policies:
- Sentencing Practices
The memorandum encourages federal prosecutors to seek judicial orders of removal consistent with federal statute (18 U.S.C. § 3553), representing an additional emphasis on removal and deportation of immigrants.
- Border Security Coordinators
The memorandum directs each U.S. Attorney’s Office to designate an Assistant U.S. Attorney as a “Border Security Coordinator.” This prosecutor’s role will be “to coordinate the criminal immigration enforcement response for their respective office.” This includes overseeing investigations and prosecutions of criminal immigration offenses, attending relevant trainings, providing advice and guidance to other prosecutors on these issues, and reporting relevant statistics relating to the offenses specified in the DOJ memorandum.