The Breakdown: Immigration Court Proceedings
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The Breakdown: Immigration Court Proceedings

October 8, 2019


The United States will not be a migrant
camp. If it sounds like the U.S. immigration system is complex, confusing, and controversial you’re not wrong. Let’s break it down. There are two components of federal immigration law that apply to undocumented migrants who cross into the U.S. One sends undocumented persons to immigration court, where an immigration judge who works for the Department of Justice will evaluate whether the person can stay in the country, or whether they must be deported. The other component of our law treats crossing into the U.S. without authorization as an actual crime. So, in addition to an immigration court
proceeding, an undocumented person may also be criminally prosecuted in federal
court. This is where “zero tolerance” comes in. It means that the government seeks to
prosecute 100% of those apprehended by Border Patrol in federal court. Even first-time crossers, parents with children, and those seeking asylum in the U.S. As a result, federal prosecutors have dramatically increased immigration prosecutions Over 11,000 immigration prosecutions were initiated on the southwest border in June, compared to almost half the number in March of this year. But as we’ve identified here at the Project on Government Oversight, this zero-tolerance policy has come at a high cost. Both for our constitutional rights
and values, and for public safety. Let’s start with constitutional rights. Any person, regardless of immigration or citizenship status, is protected by the Constitution when the government seeks to prosecute them in criminal court. So, when federal prosecutors, pursuant to “zero tolerance,” charge first-time illegal border crossers in federal court with the misdemeanor of illegal entry, the protections and guarantees of the Constitution apply. The mass number of illegal entry cases means that defense attorneys can only spend minutes with
their clients before the case is quickly and often resolved with a guilty plea. A defendant is sentenced to “time-served,” but may then be remanded to immigration
custody pending the outcome of their deportation proceeding before an
immigration judge. The rapid processing system eliminates the possibility for the accused to meaningfully mount a defense. Moreover in an attempt to speed
through cases, the government appears to be sweeping up people who have legitimate claims to asylum in the U.S. Aside from the constitutional concerns,
data shows that the explosion in prosecutions of misdemeanor border
crossings is hampering the federal government’s ability to prosecute
serious crimes like drug trafficking and human smuggling. So if the entry of guilty pleas in mass by individuals who don’t understand the proceedings so clearly violates the Constitution, and zero tolerance appears to diminish
federal law enforcement ability to fight serious crime… What should happen? It is a prosecutors role to seek justice, and ensure that constitutional
rights are protected. POGO reached out to all five US attorneys in the southwest border districts about the damage zero tolerance has brought on the constitutionality of federal court proceedings. While Congress remains at an
impasse on immigration reform, others in the system can, and in fact have a duty, to ensure that existing immigration policies comport with the Constitution. you

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