July 28, 2015

Attorney General Loretta Lynch U.S. Department of Justice
950 Pennsylvania Avenue NW Washington, DC 20530-0001

Re: Prosecutions for Illegal Entry (8 U.S.C. § 1325) and Illegal Re-entry (8 U.S.C. § 1326)

Dear Attorney General Lynch:

We, the undersigned 171 civil rights, human rights, and faith-based organizations, write to express our profound concern with the ongoing criminal prosecution by U.S. Attorneys of asylum seekers who have fled their countries seeking safety and of migrants who wish to reunite with their families in the United States. Federal criminal prosecution is the wrong response to immigration at our southern border.

The May 2015 report from the Department of Homeland Security Office of the Inspector General (DHS OIG) on the Streamline initiative finds that Customs and Border Protection (CBP) is unable to demonstrate that Border Patrol referrals of apprehended migrants for prosecution by U.S. Attorney’s Offices actually deter unauthorized migration – the precise policy goal of CBP.1 Furthermore, Streamline proceedings are fraught with due process problems.2 Finally, DHS OIG found that Border Patrol is referring asylum seekers for criminal prosecution via Streamline, prosecutions that clearly violate U.S. obligations under Article 31(1) of the Refugee Convention.3

Meanwhile, illegal entry and re-entry are now the most prosecuted federal crimes in the United States.4 According to the Pew Research Center, the increase in illegal re-entry convictions over the past two decades accounts for 48 percent of the growth in total convictions in federal courts over the period.5 The Department of Justice (DOJ) expends untold hundreds of millions of dollars each year on U.S. Marshals Service and Bureau of Prisons beds that hold non-citizens prosecuted for illegal entry or re-entry, both pre-trial and post-sentence. Yet these prosecutions further none of DOJ’s own prosecutorial priorities – national security, violent crime, financial fraud, and cases that protect our most vulnerable communities.6 Furthermore, the prosecutions almost exclusively target Latinos, leading directly to the disproportionate representation of Latinos in the federal prison system.7 DOJ should not be in the business of immigration enforcement, particularly when the strategies are unproven and highly problematic in their implementation.

Most importantly, criminalizing migration is profoundly immoral. The causes of migration are complex and varied, and migration per se poses no threat to public safety. Our nation can find far more humane and compassionate ways to respond to people crossing our southern border.

We urge you to end Department of Justice prosecutions for illegal entry and re-entry at the southern border.

Short of complete discontinuation, we urge you to issue guidance directing U.S. Attorneys to 1) significantly reduce their use of prosecutions for illegal entry and re-entry, and 2) always decline referrals for prosecution of asylum seekers.

Thank you for your consideration. Please contact Ruthie Epstein at the American Civil Liberties Union (repstein@aclu.org) or Rob Randhava at The Leadership Conference on Civil and Human Rights (Randhava@civilrights.org) with any questions.

Sincerely,