In recent years, the federal government has turned increasingly to the criminal prosecution of immigrants for crimes related to their immigration status. Historically, immigration has been considered a matter of civil law, and some immigration-related offenses, such as being present in the United States without authorization, or overstaying a visa, remain civil offenses today, meaning that violators can be deported or fined, but not criminally prosecuted for engaging in such behavior.
However, other immigration-related behaviors are defined as federal crimes, and in recent years, the government has increasingly sought to prosecute such cases. The two most common offenses are illegal entry (8 U.S.C. § 1325), a misdemeanor, and illegal reentry (8 U.S.C. § 1326), a felony. In recent years, immigration crimes have been the most frequent federally-prosecuted offenses in the United States, representing over half of all federal prosecutions.
In 2017, former Attorney General Jeff Sessions called for more federal prosecution for immigration offenses, placing particular emphasis on jurisdictions along the Southern border. In 2018, mandatory prosecution of all unauthorized entrants crossing the Southern border became the cornerstone of his “zero tolerance” policy. And prosecutors appear to be responding to his call: according to the latest data on federal prosecution of immigration violations in 2018, made available by Syracuse University’s Transactional Records Clearinghouse (TRAC), federal prosecution for immigration-related violations has increased 62.3% since the past fiscal year. Yet these are nationwide figures; with much of the attention focused on the Southern border, what is happening here in Washington state?
In the Eastern district of Washington, the latest data made available by TRAC shows that so far, 2018 rates of criminal prosecution for immigration violations are up 15.9% from FY2017 levels, though lower than they were ten years ago. In the Western district of Washington, data is not available for 2018.
To look beyond the numbers, into the specifics of actual prosecutions, UWCHR researcher Cristina Gamundi gathered federal cases from the state of Washington using the Public Access to Court Electronic Records, or PACER database. A search was conducted for all federal cases relating to the violation of federal statutes 8 U.S.C. §1325 and 8 U.S.C. §1326, from January 1, 2016 to June 31, 2018 in the federal district courts of Western and Eastern Washington. This time period was chosen to provide researchers a comprehensive collection of cases, and further allowed the examination of trends over various years and presidential administrations. We reviewed the resulting 357 case complaints and logged the following details: case name, date, county, relevant statute, previous convictions, and a summary of what occured when law enforcement came into contact with the individual.
Why does this matter?
The federal government justifies its draconian enforcement programs on public safety grounds. Yet numerous national studies of federal prosecution have found that as the number of prosecutions increased, the number of people prosecuted whose only crimes were related to immigration itself increased, too.
At the Center for Human Rights, we are currently working on an quantitative study of these trends in Washington state, but our initial analysis of §1325 and §1326 prosecutions in 2016-2018 uncovered numerous cases of Washington residents being federally prosecuted as a result of consequences cascading from what was an initially minor offense. In these cases, families are separated, communities disrupted, and federal tax dollars lavished on prosecution, incarceration, and deportation, with no apparent public safety benefit.
Below, we highlight three illustrations of this broader trend:
Case 1 – Deported following a State Patrol traffic stop
For example, on June 3, 2017, agricultural worker Ernesto García (we have used pseudonyms for the individuals involved in these cases) was driving from Othello to Mattawa with his daughter and mother-in-law in a truck borrowed from his boss. He was pulled over by Washington State Patrol Officer LaFave, who initially noticed the truck had no front license plate. Mr. García gave a fake name to the officer; he later admitted to lying about his name, saying he was scared because his driver’s license was expired. He was arrested and booked into Grant County Jail for driving with an expired driver’s license and giving false statements to a public official. Because records indicated Mr. García had been previously deported in 2004, he was prosecuted in federal district court under 8 U.S.C. § 1326, leaving behind his family members. Case records do not indicate that Mr. García had any criminal record outside of immigration-related offenses.
Case 2 – Deported following an upside-down trip permit, work program notification to ICE
On February 21, 2017, Juan Rodriguez was pulled over in a traffic stop Vancouver, WA, because a deputy noticed his recently-purchased car was displaying its trip permit upside down. When charges of Trip Permit Violation were filed against him in Clark County District Court, he came to the attention of deportation officers working out of the ICE office in Portland, OR, who realized Mr. Rodríguez had previously been deported in 2013. On April 19, 2017, ICE officers showed up at the Clark County courthouse to attend Mr. Rodríguez’s hearing on charges of Trip Permit Violation; they reported seeing him there, but he suddenly left before the hearing began, likely because he feared being detained.
On April 24, 2018, Mr. Rodríguez pled guilty to trip permit violation, and was sentenced in Clark County District Court to two days of partial confinement on “work program” and 24 months of probation. On May 7, 2018, deportation officers Jordan Vossler and Mark Aguirre showed up at the Mabry Work Crew Center in Vancouver after receiving information from the work program that it was Mr. Rodríguez’s last day. He was taken into ICE custody and federal charges were filed against him on May 24; on June 21, 2018, he was sentenced to serve two months and a week in federal prison for the crime of illegal reentry. Following his release from federal prison at the end of July, he was sent to the Northwest Detention Center in Tacoma, from where he was presumably deported.
Case 3 – State and local law enforcement data helps ICE make a “Wanted” poster for an immigrant
According to sworn testimony in federal court, in May 2016 a Grant County sheriff’s deputy told deportation officer Jaimie Waite that Francisco Sánchez had “come up” in a drug investigation, although he was not the target of the investigation, nor was he charged with any crime. The deportation officer Waite then accessed a Washington State Department of Licensing database for more information about Mr. Sánchez. He discovered a recent vehicle registered to his name, so went to the address listed, where he “made contact with a known associate,” who confirmed that he had recently seen Mr. Sánchez in Moses Lake.
The deportation officer then made a full-page “wanted” poster featuring Mr. Sánchez’s photograph imposed over the words “Wanted for Removal from the United States,” and circulated it to law enforcement contacts in Grant County. Mr. Sánchez was then located, prosecuted for illegal re-entry and sentenced to federal prison. Court records associated with this case reveal no other criminal history outside of illegal re-entry, but communications between ICE and local law enforcement describe him as a “criminal alien.” While local, state, and federal resources were spent to hunt him down, detain him, and imprison him, it is unclear what public safety benefits are achieved by doing so.
Prosecuting re-entry as a federal crime legitimates the targeting of immigrants
Today, policies that separate families, subject noncitizens to second class justice, and deny due process protections are justified based on the supposed criminality of immigrants. This is not only found in the ethnonationalist rhetoric of Donald Trump, but also reflected in purportedly immigrant-friendly initiatives like Governor Inslee’s Executive Order 17.10, which constrains Washington state agencies from collaborating with civil—but not criminal—immigration enforcement. Indeed, politicians from both the Democratic and Republican parties have presided over the growing criminalization of immigrant communities for well over a decade now.
Yet the cases described above suggest that far too often, people who represent no realistic threat to public safety are being rendered criminal by our government. This comes at incalculable cost to immigrant families and communities across our state, and at an as-yet-uncalculated cost to federal taxpayers, whose dollars fund investigation, prosecution, incarceration, and deportation yet who reap no appreciable public safety benefit. This is all based on the false premise that “Consistent and vigorous enforcement of key laws will disrupt organizations and deter unlawful conduct,” as former Attorney General Sessions asserted in his April 2017 memo calling for increased federal prosecutions of entry-related offenses.
Yet the high level of criminal prosecutions and incarceration in federal prison has been going on for decades, and there is no evidence that it is deterring repeated reentry, let alone other crimes. Indeed, many of those facing prosecution in Washington have multiple previous deportations. When we criminalize people with longstanding ties to their families and communities, we don’t disincentivize their return, we merely drive it underground; in fact, this may strengthen criminal networks and leave people fearful of coming in contact with law enforcement.
Above all, a human rights perspective must question the fairness of cases like those highlighted here, where infractions as minor as an upside-down trip permit posted in a rear-view window lead to incarceration and deportation. When ICE officers stake out courthouses, leading immigrants to flee their hearings, and diversionary programs aimed at reducing incarceration actually funnel immigrants into federal prison, all without any appreciable public safety benefit, our local institutions have become complicit in a costly, cruel, and unnecessary regime of targeting immigrants under the guise of “law and order.” We will continue our investigations of these patterns, and their human rights implications, in future research.