Crossing the border unauthorized is a civil violation covered by Title 8 of the US Code, not a criminal violation under Title 18. This is important for the below reasons:
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If charged criminally, that takes the case out of the Immigration Courts where the migrants have nearly no rights, and puts it in US Fed Courts where they have limited Constitutional protections such as Fourth, Fifth, Sixth and Fourteenth Amendment rights.
Fourth Amendment guarantees the right to be free from search and seizures not authorized by a warrant.
Fifth Amendment guarantees the right not to self incriminate and to have an attorney present at questioning if the accused is able to get one
Fifth Amendment guarantees the right not to self incriminate and to have an attorney present at questioning if the accused is able to get one
Sixth Amendment guarantees the right to counsel during trial
Fourteenth Amendment guarantees due process
Fourteenth Amendment guarantees due process
If kept in Immigration Court, the migrants would have none of these rights, but by prosecuting the migrants as criminals, the Trump Administration has effectively given the migrants Constitutional protections they wouldn't otherwise have.
As such, attorneys experienced in criminal defense and immigration law can volunteer to represent the migrants pro bono (for free) and argue that the government's handling of the migrants violates the law for asylum seekers under Title 8 and is therefore improper.
Or, the attorneys may be able to argue against the government's actions on Constitutional grounds, including the unconstitutional taking of their children in violation of the Fourth Amendment, a right which they now have if being tried in criminal court.
At any rate, I am sure activist lawyers will descend on the courts to assist the migrants the same way they descended on airports to combat Trump's unconstitutional travel ban. The Justice Dept. can mandate migrants be criminally charged, but they CAN NOT order judges how to rule
Thus, if the attorney's are able to argue convincing cases for the migrants and their children, the judges may well rule in favor of them. Should that happen, we may see the Trump policy defeated precisely because he and Sessions chose to charge the migrants criminally.
I AM NOT an attorney, so everything I have said here is my own personal opinion as to the possibilities based on my very limited knowledge of the law.
