On April 6, 2018 Attorney General Geoffrey Sessions issued a memorandum to prosecutors along the Southwest border, with the subject line “Zero-Tolerance for Offenses Under 8 U.S.C. §1325(a).” Sessions explained that on April 11, 2018 Federal Prosecutors would receive an additional memo entitled "Renewed Commitment to Criminal Immigration Enforcement." He directed all United States Attorney’s offices along the Southwest border to work with the Department of Homeland Security to prosecute offenses under 8 U.S.C. §1325(a), which states that any noncitizen who attempts or enters the United States at a place not designated by immigration officers, or eludes examination by an immigration officer, or uses false documents or misleading representation, or willful concealment of material fact, will be either fined or imprisoned. Essentially, “zero-tolerance” criminalizes unauthorized entry into the United States.
This zero-tolerance policy supersedes any existing immigration policy and if any additional resources were needed to implement the policy, then those affected offices could request more funding.
Sessions’ “zero-tolerance” policy was years in the making. In December 2005, under the Bush administration, Border Patrol agents began enforcing “operation streamline.” Under this policy, along certain points on the Southwest border, noncitizens who were caught violating 8 USCS § 1325 (a), entering or reentering the United States without authorization, were immediately referred to the Department of Justice (DOJ) for criminal prosecution.
Prior to operation streamline, the sanction for entry without inspection was deportation, which is a civil sanction. Once a noncitizen finds themselves deported they are barred from re-entering the United States for five years. However, operation streamline now imposed a criminal sanction, the criminal charge of Entry Without Inspection (EWI), in addition to the civil sanction, rendering this noncitizen a criminal immigrant. Criminal implications are detrimental to noncitizens because a criminal charge could completely bar a noncitizen from any future visa applications.
Now in the hands of the criminal justice system, these noncitizens are booked and processed, “counseled by the Federal Public Defender’s office, prosecuted by the United States Attorney’s Office (USAO), adjudicated by the federal bench, and imprisoned by the Bureau of Prisons, all before they are deported.”
Because of the influx of cases, courts along the Southwest border began to “streamline” illegal entry cases. All of these noncitizen’s cases were essentially combined and abbreviated in order to expedite deportation. The streamlining of these cases raised serious due process concerns. A typical streamlined case began with a federal public defender arriving two or three hours before the case to meet their 30-60 clients for the day. Attorney client meetings were conducted in groups of about five to eight individuals. The judge then proceeded to hear these cases in groups and make decisions for groups of noncitizens at a time.
At the border, Border Patrol officers have discretion in what actions to take. They can release, deport, or criminally charge the noncitizen. One option is voluntary return, which only applies to contiguous countries, such as Mexico, this typically results in processing and return to the border in about a day. The second option is expedited removal, which takes about one month. The noncitizen is detained while they await an expedited removal process. The third option is to charge the noncitizen with the criminal charge of Entry Without Inspection (EWI), these noncitizens are detained at a federal detention center while they wait to be arraigned. Mothers with children under the age of fourteen were exempt from Operation Streamline. Once a group of noncitizens is sentenced to time served, they are returned to the Custody of Customs and Border Enforcement and those who are given time served that exceeds what they served while awaiting their court date are sent to the Federal Bureau of Prisons.
Those traveling with family members were detained in facilities meant for children and adults and after twenty days, released with ankle monitors to await their court date. This changed slightly under the Obama administration where families were detained together before a court order ruled this was not acceptable.
Repercussions of zero-tolerance
This administrations’ zero-tolerance policy created an influx of noncitizens who were being charged criminally. Because parents were receiving criminal charges, they were forcibly separated from the children they were traveling with.