Attorney General Jeff Sessions went to the border city of Nogales, Ariz., last week to announce new instructions to federal prosecutors: bring more—a lot more—criminal cases against illegal border crossers and immigrants in the country without papers.
Summoning fiery rhetoric from his years in the Senate as a warrior for tough immigration enforcement, Sessions said he was ready to take the fight to “criminal aliens and the coyotes and the document-forgers” who he warned are seeking “to overthrow our system of lawful immigration.” Referring to the border nearby, he said: “It is here, on this sliver of land, where we first take our stand.”
But the border region is not where Sessions’ marching orders are likely to have their greatest impact. His three-page memorandum went out to federal prosecutors in all 94 districts in the country, urging them to give higher priority to immigration crimes to achieve “consistent and vigorous enforcement.”
Sessions is determined to harness Justice Department resources to back up the work of immigration and border agents, who are under the Department of Homeland Security. To put some punch behind his guidelines, the attorney general gave every top prosecutor, including those located in states far from any border, until April 18 to name a high-level attorney in their office as a “Border Security Coordinator.” That job entails making sure new cases are brought and reporting “routinely” to the Justice Department and the public on their progress.
Cities and towns in Nevada, Kansas, Kentucky and other states distant from Mexico could see the sharp shift in federal law enforcement operations and courts that happened several years ago along the southwest border. Based on prosecutions from border districts alone, immigration crimes are already the single biggest category of cases on the federal docket nationwide.
In February, those crimes were 46 percent of all new federal cases, while narcotics cases, the next largest category, were 14 percent, according to an analysis based on official data by the Transactional Records Access Clearinghouse at Syracuse University. Immigration crimes have held the number one position in the federal courts for at least five years, TRAC reports.
The rise of immigration on the federal docket dates back to 2005, when prosecutors began teaming up with border agents to bring federal charges against every person caught crossing the border illegally in certain sectors along the line. It started small in the town of Del Rio, Texas. But within a few years the program, known as Operation Streamline, was applied in places along the length of the border.
It resulted in sharp declines in illegal crossings in areas where it was applied to every migrant detained. But soon immigration cases overwhelmed the border courts, as civil rights groups protested the program’s fast-track procedures. More recently, the Obama administration cut back the program.
Sessions proposes to revive and expand the basic idea. “It’s taking a program that was developed just for use at the border and spreading it out across the whole country,” said Juliet Stumpf, a professor at Lewis & Clark Law School who focuses on the overlap between criminal law and immigration. “Now it will impact settled communities that are well integrated into the United States.”
Until now, prosecutors mainly brought federal cases against migrants who were caught in the act of entering illegally, generally charging the lowest level of the offense, a misdemeanor. Sessions is encouraging prosecutors to bring more serious felony charges against repeat border crossers wherever they find them in the country, and to bring more cases against foreigners who come back after being formally deported, which is a felony.
More felonies means that, rather than a brief detention and expulsion back across the border, more immigrants will be pumped into overburdened criminal courts and costly federal prisons before being deported.
The attorney general also wants prosecutors to make wider use of harboring laws. In the last few years, prosecutors have brought an increasing number of harboring cases against smugglers when they were arrested with their human cargo sneaking across the border or in clandestine safehouses. Sessions is asking for more cases applying provisions that outlaw “transporting or harboring” of any groups of undocumented immigrants. Lawyers worry those provisions are vague and overly broad.
“It could be any individual they find driving somebody who is illegally in the United States,” said Raed Gonzalez, an immigration lawyer in Houston, Texas. “It could be the U.S. citizen with a husband and two sons who are undocumented. It could be the uncle with three undocumented nephews.”
The attorney general is also asking prosecutors to add federal identity theft charges in cases of foreigners who have been working with fake social security numbers or stolen identity documents. One charge carries a mandatory two-year minimum sentence. Almost all immigrants working illegally have used some form of false identification.
In years past prosecutors sometimes wielded the threat of a harsh identity theft conviction to pressure immigrants to plead guilty to lesser charges – most notably after a raid in 2008 at a meatpacking plant in Postville, Iowa. The goal was to keep costs down by giving immigrants a relatively short time in federal prison, followed by speedy deportations. In a 2009 decision the Supreme Court narrowed the meaning of the statute, finding that the identity theft charge could apply only if the immigrant clearly knew the documents belonged to another real person. Since then prosecutors evoked those charges less frequently. If the attorney general has his way, they will start doing it again.
On Thursday, Sessions joined in the fanfare announcing the arrests of 15 people accused of bringing heroin from Mexico to Rhode Island, including three brothers from the Dominican Republic: Hector, Claudio and Juan Valdez. All three had been previously deported, officials said. Sessions noted the counts for illegal re-entry among the lengthy lists of their charges, saying the brothers were exactly the type of immigrant criminals he intends to convict and eventually deport. But Sessions’ policies are likely to reach well beyond hardcore criminals.
The attorney general will have considerable latitude to appoint prosecutors who embrace his immigration priorities. In what was described as a routine housecleaning at the start of a new administration, in March Sessions asked all the United States attorneys appointed by President Obama to resign. He is currently selecting new ones.
But some incoming prosecutors may wait to see if Sessions will supply additional funds and people to bring border enforcement into the interior. Along the border, prosecutors found their offices stretched thin as they tried to keep up with immigration cases and also pursue narcotics traffickers and murderous gang members who were plying a burgeoning international opioid trade.
“In immigration you have to prioritize, and right now they have too many priorities,” said Gonzalez, the lawyer in Houston. “In the end everybody who came in illegally you now suspect of being in violation of criminal laws. Everybody is a priority now.”
Correction: An earlier version of this article placed Raed Gonzalez's law practice in Austin. It is in Houston.