In a three-page April 11, 2017, memorandum, Attorney General Jeff Sessions called for increased criminal prosecution of noncitizens. Living up to his pro-prosecution, anti-immigrant reputation, Sessions’ memo directs federal prosecutors to prioritize bringing criminal charges to “further reduce illegality.”

Although federal prosecution for unlawful entry, re-entry, and similar offenses is already at an all-time high and constitutes more than half of all federal criminal charges, Sessions’ directives threaten to dramatically increase the number of criminal prosecutions for immigration violations. When implemented, it will affect both undocumented border crossers and immigrants already in the United States.

As detailed in the memo, federal prosecutors are instructed to prioritize prosecutions under six specified federal statutes, which address offenses related to: (1) harboring and transporting, (2) unlawful entry and (3) reentry, (4) identity theft, (5) document fraud, and (6) interfering with or resisting an officer. Each of these statutory provisions is described below.

8 USC § 1324

Under this provision, smuggling, harboring and transporting are all subject to criminal prosecution. Criminal liability under 8 USC § 1324 requires that the person know or have reckless disregard of the fact that he or she is: (1) bringing an undocumented person into the United States through a place other than a designated port-of-entry, (2) transporting an undocumented person within the United States, (3) harboring within the United States in a building, or (4) encouraging or inducing someone to come to, enter, or reside in the United States. The mens rea, or state of mind, element of 8 USC § 1324 forces federal prosecutors to prove not only the acts above, but also that the person knew or had reckless disregard for whether or not the person is undocumented.

Expanded federal prosecution under this section has the potential to ensnare U.S. citizens and those with lawful status who fall within the broad definition of transporting and harboring. For example, criminal charges of harboring have been applied to employers who knew about an employee’s undocumented status and took steps to help the employee remain undetected. They have also been brought against individuals for transporting and shielding undocumented people in a sanctuary context. Also note that criminal prosecution under 8 USC § 1324 is the vehicle for implementing the February 20, 2017, Department of Homeland Security memo that references targeting parents and family members of unaccompanied children who pay smugglers to bring their children into the United States.

8 USC § 1325

This statute imposes criminal penalties against those who enter or attempt to enter the United States without inspection or by misrepresentation. First offenses are misdemeanors punishable by a maximum of six months’ incarceration and a fine, and up to two years of incarceration for a subsequent offense. The statute also imposes criminal penalties for marriage fraud and for knowingly establishing a commercial enterprise to evade any provision of the immigration laws, both of which are punishable by up to five years of incarceration. Currently, 8 USC § 1325 charges of unlawful entry constitute the most frequent charge in federal prosecutions of immigration offenses. As reported by the Transactional Records Clearinghouse, known as TRAC, 35,367 federal charges were brought under this section in Fiscal Year 2016.

The Sessions memo calls for increased felony prosecutions of unlawful entry under 1325, and focuses on those who have two or more prior misdemeanor improper entry convictions, or one or more improper entry misdemeanor convictions with aggravating circumstances. As described in the memo, these circumstances include having a felony criminal history, gang membership or affiliation, multiple prior voluntary returns, prior removal, or deportation or exclusion. The memo also directs prosecutors to consider felony prosecution charges under this section in marriage fraud cases.

For undocumented people to be convicted of one or more misdemeanors, thus laying the ground for felony prosecution, Sessions asks that federal prosecutors in border states work with DHS to create guidelines for these prosecutions by April 24, 2017, which was less than two weeks from the issuance of the memo.

8 USC § 1326

Under 8 USC § 1326, undocumented people who illegally re-enter the United States after an order of removal are subject to federal prosecution. The memo directs all federal prosecutors in all districts to consider 1326 charges against those who have reentered the United States unlawfully, and it prioritizes them:

• an aggravated felony conviction
• any prior criminal history indicating a danger to the public safety
• one or more civil immigration or criminal violations
• has an affiliation with or who are members of a gang, or
• any other aggravating circumstances in their record.

Danger to the public safety and aggravating circumstances are not defined. Danger to the public safety is a broad term, open for interpretation. Borrowing from 8 USC § 1325, aggravating circumstances can be felony criminal history, gang membership or affiliation, multiple prior voluntary returns, prior removal, deportation or exclusion, or other non-exhaustive aggravating circumstances.

Section 1326 is already widely used, and, per TRAC, was the basis of 28,930 federal charges in FY 2016. Enhanced federal prosecution for unlawful reentry after removal threatens to affect thousands more people who have re-entered the United States after a prior removal order or after overstaying an order of voluntary departure and then departing the United States. Most people who are subject to reinstatement of removal under INA § 241(a)(5), for example, would also be subject to criminal prosecution under this provision.  In FY 2013, for example, nearly 40 percent of all removals were due to reinstatement.

18 USC §§ 1028A and 1546

The Sessions memo also targets for federal prosecution those who have engaged in aggravated identity theft in violation of 18 USC § 1028A, or fraud or misuse of immigration documents in violation of 18 USC § 1546. Aggravated identify theft is described as the knowing transfer, possession, or use, without lawful authority, of another’s identification in relation to 11 different actions listed in the statute. These include falsely and willfully representing oneself to be a citizen of the United States; false statements, including misrepresentation of identification, in connection with a firearm; making a false statement in application and use of a passport; forgery or false use of passport; and fraud and misuse of visas, permits, and other documents.

Prosecutions under this section could potentially affect any immigrant who has worked with fake documents. In the Postville, Iowa, meat-packing plant raid in 2011, for example, more than 300 Guatemalan workers were charged with and pleaded guilty to violations of 1546(a) for working with false employment documents.

18 USC § 111

This statutory provision makes it a felony to assault, resist, impede or interfere with an officer in the performance of his or her official duties. While Sessions emphasized assault in his remarks, resisting and impeding enforcement of the law is also part of the statute.

In addition to a call for increased federal prosecutions, the Sessions memo directs prosecutors to seek judicial orders of removal, as authorized by INA § 238(c), in connection with the sentencing component of any federal prosecution for the listed offenses. Per the memo, each federal district was also required to designate a Border Security Coordinator by April 18, 2017. This person will be responsible for investigating and prosecuting these offenses, providing legal advice to assistant U.S. attorneys, and maintaining and reporting prosecution statistics related to these offenses. Those coordinators will work with Immigration and Customs Enforcement, Customs and Border Protection, U.S. Citizenship and Immigration Services, and other law enforcement offices “deemed necessary to accomplish the criminal immigration enforcement goal,” and share information, initiate training programs, and coordinate specific immigration enforcement activities.

CLINIC will continue to monitor developments related to implementation of the Sessions memo and increased federal prosecutions on immigration-related charges. Meanwhile, the prospect of increased criminal prosecutions adds another level of importance to know-your-rights presentations. It emphasizes the need to alert your client community to invoke their right to maintain silence and not provide information that can support criminal charges or the initiation of removal proceedings or reinstatement of removal.