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Alicia’s comments above suggest, many are not likely to be deterred by the threat of prison:
people seeking to join their children or other loved ones are not likely to simply give up.
Meanwhile, the costs of the increased prosecutions are significant and growing. The costs
include an estimated $1 billion annually in incarceration costs alone and lasting damage
to the lives of migrants and their family members, tens of thousands of whom are US
citizens or permanent residents.
This report is based on analyses of publicly available data from the US Sentencing
Commission and other agencies, as well as 191 interviews with individuals charged with
illegal entry or reentry, their families, other unauthorized migrants who have repeatedly
entered the United States, criminal defense attorneys, immigration attorneys, prosecutors,
judges, and representatives of humanitarian and advocacy organizations. In many cases,
we corroborated details of individuals’ accounts with publicly available court records. This
report was also informed by meetings with officials in the US Customs and Border
Protection agency, and in two divisions within the US Department of Justice: the Civil
Rights Division and the Executive Office of Immigration Review.
For years, federal prosecutors have claimed that prosecutorial resources for felony illegal
reentry are focused on unauthorized migrants who pose a threat to public safety. In the
past, a majority of people charged with felony immigration crimes indeed had a prior
conviction for a serious felony. Data from the US Sentencing Commission reveals, however,
that the criminal histories of defendants sentenced to federal prison under the “illegal
entry offense” guideline has shifted dramatically over the past decade. In 2002, 42
percent had criminal convictions considered most serious by the Commission—such as a
conviction for a crime of violence or a firearms offense—while only 17 percent had no prior
felony convictions. By 2011, the proportion of defendants with convictions considered
most serious had dropped to 27 percent, while the proportion of defendants with no prior
felony convictions had increased to 27 percent.
The lack of selectivity in prosecution is exacerbated by the ways in which conviction for
misdemeanor illegal entry and subsequent deportation can become a predicate for felony
illegal reentry charges. Illegal entry and reentry prosecutions have grown along the US-
Mexico border as part of US Border Patrol strategy to deter illegal immigration. Once
convicted of illegal entry, including through a mass-prosecution program like Operation
Streamline, a migrant who attempts to reenter the US illegally is more likely to be
3 HUMAN RIGHTS WATCH | MAY 2013