This article originally appeared in Law Week Colorado.
Following a tour of our Southern border and an animated speech encouraging increased immigration enforcement, Attorney General Jeff Sessions issued a memo asking United States Attorneys to intensify efforts in criminally prosecuting immigration violations.
In a memo released on April 11, Attorney General Sessions, focusing largely on non-violent crimes, reaffirmed the commitment to enforcing criminal laws at the border and highlighted five specific areas where “consistent and vigorous enforcement” were warranted. These areas are:
Alien Harboring under 8 U.S.C. § 1324: This statute is very broadly drafted and the memo emphasizes that it includes both concealing and transporting undocumented immigrants. The memo encourages prosecutions of individuals bringing in three or more individuals or in cases with aggravating factors such as injury or sex assault. This statute can also be used to prosecute employers that knowingly hire undocumented immigrant workers.
Felony re-entry under 8 U.S.C. § 1325: Individuals with two or more previous misdemeanor re-entry cases under the same section will be targeted for felony prosecution. This particularly applies to individuals who have aggravating factors such as previous criminal convictions or suspected gang ties. This section will also be used to prosecute people who marry for the purposes of evading immigration laws.
Felony re-entry of previously removed individuals under 8 U.S.C. § 1326: Prosecutors are instructed to consider felony charges for individuals that have previously been ordered to leave the U.S. and improperly re-entered following their removal.
Aggravated identity theft under 8 U.S.C. § 1028A and misuse of visas permits and other documents under 18 U.S.C. § 1546: These statutes pertain to the use of false documents or the use of another person’s valid documents to satisfy I-9 requirements.
Assisting, resisting or impeding law enforcement officers under 18 U.S.C. § 111: More guidance is to follow on this ground of prosecution, but it involves the prosecution for assaulting, resisting or impeding an officer who is engaged in the performance of their official duties.
The memo also asked for a “Border Security Coordinator” for each district to be in place by April 18. This coordinator will be responsible for overseeing the investigation and prosecution of these offenses, attending special trainings and providing advice as subject matter experts on these types of criminal violations. They will also be required to maintain statistics on the prosecution efforts.
Criminal prosecutions spiked in 2008 toward the end of the Bush administration and remained consistently higher through the Obama administration, with many cases coming out of the Southern District of Texas. However, with the directive being aimed at prosecutors throughout the nation, it is likely that we will see more immigration-related prosecutions in Colorado than in previous years.
Immigration law attorneys should be aware that this memo has the potential to impact employers and employees that find themselves involved in I-9 inspections. As a part of any I-9 inspection, the government can produce a “notice of suspect documents” for employees that may have produced false documents while attempting to complete I-9 forms at the time of hire. In the past, this circumstance may have led to an administrative removal hearing before an immigration judge, and it remains to be seen whether U.S. Attorneys will move forward with criminal cases in these circumstances.
While it’s difficult to say the precise effect this memo will have over time, immigration law attorneys should prepare for more active prosecution of immigration-related crimes. To help process these cases, Attorney Sessions indicated the Justice Department will hire 125 more immigration judges over the next two years to not only reduce backlog in immigration courts, but accelerate the deportation process.
Brad Hendrick heads the immigration law practice group at Caplan and Earnest LLC. He may be reached at [email protected] or 303-443-8010.