Trump Administration Executing “Zero Tolerance” Policy for Illegal Entry at the Southern Border

Under the Zero tolerance policy AG Jeff Sessions has directed the U.S. Attorney’s Offices along the border to refer for prosecution all noncitizens entering the U.S. unlawfully.

** LEGAL UPDATE **

In April 2018 Attorney General Jeff Sessions announced a new “zero tolerance” policy for illegal entry into the U.S. at the southern border. Under the policy, Sessions directed the U.S. Attorney’s Offices along the border “to the extent practicable, and in consultation with [the Department of Homeland Security]” to refer for prosecution all noncitizens entering the U.S. unlawfully.

While it is unlikely that the Department of Justice will be able to prosecute all violators, the number of prosecutions for illegal entry has already significantly increased since the announcement and will likely remain high for the foreseeable future. Sessions announced that additional prosecutors will be sent to the border to handle the heavier case load.

Penalties for Unlawful Entry and Unlawful Reentry into the United States

Penalties for the first unauthorized entry into the United States (a misdemeanor) can include a fine and up to a six-month jail sentence, and a second violation (a felony) can carry a fine and up to a two-year sentence, although offenders usually serve much less time. Those who reenter the U.S. unlawfully with criminal records can face sentences of between ten and 20 years in federal prison.

After serving their criminal sentences violators are transferred to Immigration and Customs Enforcement (ICE) for removal (deportation).

The new “zero tolerance” policy will have the largest effect on people illegally entering for the first time with no criminal history, as they were not usually referred to the Department of Justice for prosecution in the past. Many of the people in this group are individuals and families seeking asylum and other humanitarian protections in the United States.

“Zero Tolerance” Has Led to Separation of Families Seeking Asylum and Other Humanitarian Protections

Sessions’s “zero tolerance” policy has already had serious effects on families crossing the southern border to seek asylum and other humanitarian protections in the United States. Under the new policy, adults who are prosecuted for illegal entry are being separated their minor children while they face trial and serve their sentences.

In the first two weeks of the policy alone, more than 600 parents were reportedly criminally prosecuted for illegal entry and separated from their minor children.

The children who are separated from their parents at the border are being treated as if they arrived at the border alone and designated by the U.S. government as “unaccompanied alien children” or “UACs.” As UACs the children are transferred to the custody of Health and Human Services, Office of Refugee Resettlement (ORR). The children are sent to temporary shelters while ORR seeks a sponsor or caregiver to release them to. The children separated from their parents are expected to spend a significant amount of time in ORR shelters as their caregivers are await trial and serve sentences for illegal entry and then are transferred to ICE custody.

Seeking Asylum in the U.S. After Prosecution for Illegal Entry

A misdemeanor conviction for illegal entry is not a bar to seeking asylum in the U.S. and after being released from criminal custody asylum seekers may still request a credible fear interview and seek protection in the United States.

Challenges to the "Zero Tolerance" Policy

The policy of separating family units seeking asylum at the border is now being challenged in federal court in a class-action lawsuit brought by the American Civil Liberties Union (ACLU). However, a decision has yet to be made about the legality of the policy. In June, the United Nations human rights office called for the end to the family separation policy and stated that it "amounts to arbitrary and unlawful interference in family life, and is a serious violation of the rights of the child."

Effective date: April, 2018