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  1. TRAC Report: "Zero Tolerance" at the Border: Rhetoric vs. Reality.

    Note. The immigration court backlog crisis that Trump inherited from Obama is preventing him from implementing his enforcement policies. It would be a disaster for him with his base if the Dems weren't making everyone think that he is deporting a lot of people. He is particularly grateful in that regard to Roger. Roger has talked up Trump's enforcement program to the point where citizens are worrying about being arrested and thrown out of the country.

    He wants Roger to stop by for a drink the next time he is in DC.

    The latest available case-by-case records for May 2018 reveal a total of 9,216 new federal prosecutions were brought as a result of referrals from Customs and Border Protection (CBP) in the five federal judicial districts along the southwest border. May numbers were up 11.1 percent from the 8,298 such prosecutions recorded during April, and up 44.7 percent over March figures. This increase follows Attorney General Jeff Sessions' April 6, 2018 announcement, of a "zero-tolerance policy" for those who "illegally cross over our border."

    While the policy has resulted in an increase in criminal prosecutions, the so-called "zero-tolerance" as implemented continued to fall far short of the reality on the ground. During May southwest border apprehensions continued to dwarf the number of criminal prosecutions. In May 2018, CBP reported that the Border Patrol apprehended 40,338 individuals along the southwest border trying to illegally enter the country. And this does not count individuals at ports-of-entry who were found seeking to unlawfully enter using fraudulent documents, or individuals caught at ports-of-entry illegally smuggling individuals, drugs, or cargo.

    Figure 1: Criminal Immigration Prosecutions
    over the last 20 years

    In May 2018, a generous estimate indicates criminal prosecutions were still at most only 32 percent of total Border Patrol apprehensions. See Figure 1. This estimate eliminates apprehensions of children who presumably weren't subject to the zero-tolerance prosecution policy, and also excludes arrests at ports of entry. Including either or both of these groups would result in criminal prosecutions numbers representing an even smaller proportion of total CBP apprehensions.

    These prosecution counts are based upon government case-by-case records on each prosecution referred by CBP to U.S. Attorney offices[1]. Obtained as the result of successful litigation brought by the co-directors of the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, these detailed records were analyzed by TRAC to gauge progress on the implementation of the Administration's zero-tolerance policy. Estimated Border Patrol apprehensions that exclude children (those under 18 who were apprehended as part of a family unit or unaccompanied) use Border Patrol records also obtained by TRAC with the age of each person who was taken into custody[2]. For additional results, see last month's TRAC report on southwest border prosecutions.

    Zero-Tolerance and Family Separations

    Family separations, the Administration stated, was the inevitable consequence of prosecuting everyone caught illegally entering this country. As the press widely reported, "[t]he Justice Department can't prosecute children along with their parents, so the natural result of the zero-tolerance policy has been a sharp rise in family separations. Nearly 2,000 immigrant children were separated from parents during six weeks in April and May, according to the Department of Homeland Security."[3]

    However, since less than a third of adults apprehended illegally crossing the border were actually referred for prosecution, the stated justification does not explain why this Administration chose to prosecute parents with children over prosecuting adults without children who were also apprehended in even larger numbers. As shown in Table 1, the total number of adults apprehended without children during May 2018 was 24,465. This is much larger than the 9,216 adults that the administration chose to prosecute that month.

    Table 1. Border Patrol Apprehensions of Adults vs. Criminal Prosecutions

    Southwest Border Apr 2018 May 2018
    Criminal Prosecutions:

    Referred by CBP 8,298 9,216
    Border Patrol Apprehensions:

    Adults without Children 24,299 24,465
    Adults with Children 4,536 4,458

    Thus, the so-called zero-tolerance policy didn't as a practical matter eliminate prosecutorial discretion. Since less than one out of three adults were actually prosecuted, CBP personnel had to choose which individuals among those apprehended to refer to federal prosecutors[4]. The Administration has not explained its rationale for prosecuting parents with children when that left so many other adults without children who were not being referred for prosecution.

    Nor does the zero-tolerance policy explain why so many adults also had their children taken from them who were not prosecuted. For more background, see TRAC's report on the latest case-by-case Border Patrol data.

    Where Along the Southwest Border Were Prosecutions in May Concentrated?

    While CBP criminal prosecutions increased in all five federal judicial districts long the southwest border in April, trends diverged during May. The most prosecutions during May (3,996) occurred in the Southern District of Texas - with double the number (1,959) that had occurred during April. The Southern District of California also recorded an increase. That district had the lowest number in April among the five border districts, but climbed past New Mexico's prosecution numbers in May.

    In contrast, the number of recorded prosecutions actually fell in the Western District of Texas in May. During April, that district had recorded the largest number among the five districts with 2,767 prosecutions. Prosecutions during May in West Texas fell to 2,308. As shown in Table 2, May totals were also somewhat lower in Arizona and New Mexico than April prosecution numbers.

    Federal prosecutors also reported prosecutions within districts by the specific border community where they were stationed. Trends in each of these specific border areas within the five districts along the southwest border are shown in Table 3.

    In May, among these border areas, prosecutions from CBP referrals were highest in McAllen, Texas in the Southern District of Texas. A total of 2,079 prosecutions were recorded there in May alone - up from 841 in April. Prosecutions also rose in Brownsville, Corpus Christi, and Del Rio, Texas, as well as in Yuma, Arizona.

    Other communities experienced declines. While Tucson, Arizona, had the largest number of recorded prosecutions during April (1,392), its numbers in May fell to 1,149. Despite this decline, in May Tucson, still had the third largest total for criminal prosecutions, just below prosecution numbers in Del Rio, Texas. Las Cruces, New Mexico, Laredo and Pecos/Alpine, Texas also saw declines.

    See the rest of the report at

    Posted by Nolan Rappaport

    Updated 07-27-2018 at 05:48 PM by ImmigrationLawBlogs

  2. Should North Korea be Removed From Trump's "Travel Ban" List? Putting it on Was Never More Than Cynical Window Dressing Anyway. Roger Algase

    One might ask whether the question of whether North Korea should be taken off Donald Trump's euphemistically called "Travel Ban" list (since this is of course really a ban on Muslims, not travel per se) is even worth writing about. North Korean immigration to the US is not exactly a major factor in America's immigration mix, and few if any readers of this site will have ever seen a single North Korean citizen anywhere in the US. Probably no one ever has.

    But this is exactly the point. I can remember, only a little more than 40 years ago, when someone in the office that I was then working for came back from a trip to Europe with some gadget or other that was actually "Made in China"!

    Everyone rushed over to look at it. "Made in China?" Who could imagine? No one had seen anything like that in America since Mao-Zedong had taken power some two decades earlier. But around the time that I saw this strange and unheard of "Made in China" object, Richard Nixon visited China.

    Now, four decades later, the challenge in the US is finding something that is not made in China. I am not suggesting that Donald Trump's meeting with Kim Jong Un is about to lead to large scale immigration into the US from North Korea. For the moment, that would still appear to be the world of fantasy.

    But, whatever one thinks about Donald Trump's immigration policies, and readers of my comments on this site will certainly not mistake me for one of his supporters in that area, there is an argument to be made that Trump's recent meeting with Kim, at least for the moment, took the world a step back from the danger of a nuclear war between the two countries that could lead to a world wide conflagration and the end of humanity, if not all life on earth.

    Way back in the dark days of the original Chinese exclusion laws in the 1880's, the Supreme Court attempted to justify them by arguing that immigration was part of foreign policy in general. See, Chae Chan Ping v. U.S. 130 U.S. 581 (1889)

    Now, 129 years later, later, the Supreme Court has upheld Trump's Muslim exclusion order on similar grounds, only using national security, which is of course related to foreign policy, instead. Trump v. Hawaii (2018)

    In view of the thaw in relations between the US and North Korea (and one has to give America's president some credit for helping to move the world back from war - let us hope that this lasts longer than Neville Chamberlain's "Peace in our time" did after his meeting with Adolf Hitler in Munich!), does it still make any sense to keep North Korea on the US "Travel Ban" list?

    There isn't a single person in America (except possibly for some of babies or toddlers not yet old enough to read or even talk whom Trump tore away from their Central American mothers and locked in dog cages and ice boxes as part of his "zero tolerance" - for brown immigrants - policy) who doesn't know that adding North Korea to the Muslim Ban list was only thrown in as cynical window dressing for religious bigotry - how many mosques are there in North Korea?

    Now that five Supreme Court Justices have decided to uphold the ban anyway, despite the obvious religious "animus" (to quote the 4th Circuit) which both Justice Roberts and Justice Kennedy very pointedly mentioned in their opinions, Trump doesn't need this particular fig leaf anymore.

    Maybe it is time to take North Korea off the banned list - and, who knows, maybe Trump could even use this as a bargaining chip to get some real concessions from Kim on ending his nuclear tests - instead of just a bunch of apparently empty words.

    After all, the Supreme Court did say all those years ago that immigration was part of foreign policy. Maybe Trump could put this to use in our era by taking North Korea off the list - or better yet, by simply tearing up the entire list of banned countries, along with the entire Muslim ban executive order, just as the lower courts forced him to do with the earlier versions of that order, and outraged public opinion across the entire political spectrum finally forced him to do with his brutal and barbaric "family separation" executive order.

    Indeed, it would be an excellent idea for Trump to cease trying to make major and far-reaching changes in our immigration system by executive order in the first place. Even the late 19th Century Supreme Court Chinese exclusion law decisions - which no one can label as being immigrant-friendly - said that our immigration laws are supposed to be made by Congress and that the executive only administers them.

    But paying attention to that doctrine would mean respecting the rules of a democracy - something that both Trump and Kim have a problem with, though to vastly different extents, to be sure.

    Roger Algase
    Attorney at Law

    Updated 07-27-2018 at 11:19 PM by ImmigrationLawBlogs

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