The new policy strikes squarely at parents who have traveled with their children, some apparently with the expectation that they would face shorter periods of detention while their cases were heard.
“If you are smuggling a child then we will prosecute you, and that child will be separated from you as required by law,” Mr. Sessions said at a law enforcement conference in Scottsdale, Ariz. “If you don’t like that, then don’t smuggle children over our border.”
The new initiative will result in referring all illegal Southwest border crossings to the Justice Department for prosecution, Mr. Sessions said, and federal prosecutors will file charges in as many cases as possible “until we get to 100 percent.”
Under current law, anyone crossing illegally into the country can be prosecuted, and the penalties are even stiffer if they attempt to enter the country after they have been deported. In most cases, though, first-time offenders are simply put into civil deportation proceedings. While it is unlikely that Mr. Sessions’ goal of 100 percent prosecutions will be achieved, officials at the Department of Homeland Security say they want to significantly increase the number of people referred for criminal prosecution.
“What is notable about this is that they are taking into criminal proceedings first–time crossers, which has generally not been the case in the past,” said Doris Meissner, senior fellow at the Migration Policy Institute, who served as immigration commissioner during the Clinton administration.
A similar zero-tolerance policy was attempted in 2005 in parts of Texas and Arizona under the George W. Bush administration, which ordered criminal prosecutions of immigrants in those areas who entered the country illegally. The policy lasted into the Obama administration before it was scaled back.
Another pilot prosecution project was implemented in the El Paso area at the beginning of the 2017 fiscal year. The number of illegal crossings of families dropped by 64 percent, according to Immigration and Customs Enforcement officials, who said entries began rising again after the initiative ended.
During the first six months of the fiscal year 2018, there were 35,787 criminal prosecutions for immigration violations, according to data from the Transactional Records Access Clearinghouse, a research group at Syracuse University. If prosecutions continue at that pace for the rest of the year, it would be a 19.5 percent increase in prosecutions compared to fiscal 2017, the American Immigration Council said.
The proposal has been in discussion for some time by top officials at the Department of Homeland Security.
Under the directive, undocumented immigrants who are stopped by the Border Patrol or customs officers will be sent directly to a federal court by the United States Marshals Service. Children will be placed in the custody of Health and Human Services’ Office of Refugee Resettlement, administration officials said.
The adult immigrants would be sent to detention centers to await trial. If convicted, they would be imprisoned for the duration of their sentences, after which time they could be returned to their countries of origin. First-time illegal entry is a misdemeanor that carries up to a six-month prison sentence. Repeat entry constitutes a felony and carries a penalty of up to two years imprisonment.
After a lull, the number of women and children making the perilous journey over land from Central America to the United States has spiked. Many of them are fleeing gangs, which often try to recruit their children. Honduras, the source of many of the migrants, has among the world’s highest murder rate.
The number of border apprehensions totaled 50,924 in April 2018 compared with 15,766 the same month last year. But the 2018 figure was roughly the same as that of April 2016, suggesting that 2017 was an outlier.
Last month, nearly 10,000 people traveling in families were apprehended at the border, and almost 50,000 have been arrested since October, the start of the fiscal year.
“Right now we are dealing with a massive influx of illegal aliens across our Southwest border. In April we saw triple the number from last April,” said Mr. Sessions. “But we’re not going to stand for this.”
But the overall flow of undocumented immigrants remains low compared to previous years.
In fiscal year 2017, the Border Patrol apprehended 303,916 people compared to 408,870 in fiscal 2016, 331,333 in 2015 and 479,371 in fiscal 2014.
“Yes, we have this spike in Central Americans. But the overall undocumented flow is at historic lows,” said Seth Stodder, a former assistant secretary of Homeland Security in the Obama administration who also served as policy director for Customs and Border Protection during the Bush administration.
“We are not facing a ‘massive influx’ of undocumented migrants coming across the US-Mexico border. In fact, the opposite is true — undocumented migrant crossings are at historic lows, with border apprehensions around 20 percent of what they were around the time of the 9/11 attacks,” Mr. Stodder said.
Under United States and international law, asylum seekers are afforded the opportunity to seek protection, and the overloaded immigration courts are not up to the challenge, he added. “Brutally separating young children from their parents is not a response worthy of a great and humane nation,” Mr. Stodder said.
The Trump administration already had hinted that a policy of separating migrant children from their parents was under consideration as a means of deterrence.
Officials have insisted no such policy is in place, though about 700 children, including 100 children four years old and younger, have been separated from their parents since October, according to the Department of Health and Human Services refugee office.
The new policy will surely increase this number.
Leaders of a caravan of migrants that recently arrived at the California-Mexico border and that President Trump has vowed to keep from entering the country were critical of the new policy.
“The U.S. Government is waging a war on refugee families that has reached a new level of heartlessness and hate,” said Alex Mensing, a spokesman for the organizing group, from Pueblo Sin Fronteras.
“Sessions’ attack on the rights of refugees violates both U.S. law and international agreements, not to mention the spirit of welcoming those fleeing violence and in need of refuge,” he added. “Refugee parents aren’t smuggling their children, they’re saving their lives.”
Jenna Gilbert, a managing attorney in Los Angeles for Human Rights First, a nonprofit that represents asylum seekers and other immigrants, accused the administration of attempting to frighten people out of seeking a safe haven in the United States.
“Separating mothers and children at the border is just another example of the administration’s cruelty and attempts to scare or deter people from seeking asylum, “ Ms. Gilbert said.
However, immigrants seeking asylum still could be protected, the officials said. The new policy, meant to deter illegal immigration, would not apply to people who present themselves at ports of entry seeking asylum.
In cases where migrants who have illegally entered the United States express fear of returning to their home country because of political prosecution or other dangers, Customs and Border Protection officers can refer them to asylum interviews.
Other critics warned that the new policy is logistically unworkable.
“If they try to prosecute all these folks for illegal immigration it will overwhelm the federal courts,” said Royce Murray, policy director at the American Immigration Council, a nonprofit group in Washington.
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