Prosecution Thresholds


A 2005 Department of Justice (DOJ) internal inquiry revealed that thresholds for migrant prosecution varied widely across jurisdictions. The districts were asked to respond to a question: “Does the DOJ have a policy on the number of times an alien is apprehended before being prosecuted?” The Arizona district replied that prosecution is done on a case-to-case basis, but “almost certainly an alien would not be prosecuted on a first or second offense unless there were aggravating circumstances.” The South California district cited legal manuals to maintain that the DOJ “does not have a specific policy regarding the prosecution of illegal aliens” and that its district’s policies “are based on the premise that illegal aliens with the most serious criminal histories should be our priority for prosecution.” In the New Mexico district, prosecution is sought “after the tenth entry without inspection.” Another district, the identity of which is redacted, prosecutes after “seven or more prior occasions.”[1]

A director in the Executive Office for United States Attorneys summarized the results of the inquiry as follows: “Along the SWB [Southwest Border], offenders entering the country illegally but with no criminal record and no prior deportation are almost certainly going to be voluntarily removed (“VR’d”) numerous times before they are formally deported.” This is largely the result of “the lack of resources and bed space to detain and prosecute every illegal entry violator” and of the consequent inclination of investigative agencies and U.S. Attorneys to “spend their resources on the more serious offenses.” A Deputy Chief of Border Patrol made a similar point during his testimony to a House of Representatives subcommittee: in some areas the volume is “going to keep us from being able to prosecute the amount of smugglers that we need to. So there’s a direct correlation between the amount of people that the U.S. Attorney’s Offices can prosecute and the areas where we have effective border control.” In Puerto Rico, as one of my informants at the U.S. Attorney’s Office put it, “Technically, we could charge even the first entry, but obviously that would overwhelm our resources.” (Migrants are currently prosecuted on the second entry attempt.) In South Florida, given resource constraints, “prosecutions have focused on for-profit trips involving death or bodily injury.”[2]

The relation of prosecution thresholds and resources was altered radically with the establishment of “zero-tolerance zones” on the U.S.-Mexico border. The first initiative, Operation Streamline, began in December, 2005 in Border Patrol’s Del Rio Sector. Any migrant apprehended at the border, including Mexicans and first entry attempts, faces criminal charges and administrative sanctions. Migrants are imprisoned, prosecuted for the misdemeanor of improper entry (8 U.S.C. § 1325), and formally deported (as they are in Puerto Rico on the second entry attempt). The program was expanded to other sectors: in 2006 to Yuma, in 2007 to Laredo, and in 2008 to Tucson, El Paso, and Rio Grande. Prior to Streamline, the federal court’s Del Rio Division misdemeanor docket was approximately 2,700 cases per year; after Streamline it was in excess of 11,000.[3]

[1]The quoted passages are from U.S. Department of Justice, Executive Office for United States Attorneys, Memorandum from Natalie A. Voris, Associate Counsel to the Director, to William W. Mercer, Principal Associate Deputy Attorney General, no date (2005?). The document is linked here:

[2]The director’s summary passages are from U.S. Department of Justice, Executive Office for United States Attorneys, Memorandum from Michael A. Battle, Director, to Courtney Elwood, Deputy Chief of Staff and Counselor, et al. (November 22, 2005). The document is linked here:

The Border Patrol passage is from United States House of Representatives, “Pushing the Border Out on Alien Smuggling: New Tools and Intelligence Initiatives,” Hearing Before the Subcommittee on Immigration, Border Security, and Claims of the Committee on the Judiciary (Washington, D.C.: May 18, 2004), 29. The Florida passage is from Donald L. Brown, “Crooked Straits: Maritime Smuggling of Humans from Cuba to the United States,” University of Miami Inter-American Law Review 33/2-3 (2002): 286.

[3]Dennis Smith, “Program Streamlining Immigration Enforcement,” U.S. Customs and Border Protection’s Frontline (2010): 24-27. The ethical, constitutional, and practical concerns regarding these policies are summarized in “Amended Written Statement of Heather E. Williams, First Assistant Federal Public Defender, District of Arizona – Tucson, Before the United States House of Representatives, Subcommittee of Commercial and Administrative Law, Oversight Hearing on the Executive Office for United States Attorneys” (Washington, D.C.: Wednesday, June, 25, 2008). The Document is linked here: