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Mitchell Epner @MitchellEpner
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Thread: This explanation of the law underlying the separation of families at the southern border is going to be a little bit long. I am breaking it down by numbered paragraph to make it a little bit easier to digest.
1. It is a misdemeanor for an alien to enter the United States without going through a "port of entry" and presenting herself to an immigration official. law.cornell.edu/uscode/text/8/…
2. The maximum penalty for that misdemeanor is 6 months imprisonment.
3. Until this Administration, the misdemeanor of illegal entry was virtually NEVER prosecuted. Rather, people who were caught trying to enter illegal were either placed back in Mexico or sent back to their home country (if they were non-Mexicans attempting to enter f/ Mexico).
4. The felony of illegal reentry after prior deportation is established by 8 USC Section 1326. If a person was deported and re-enters (but does not have a prior aggravated felony conviction), the maximum sentence is 2 years. law.cornell.edu/uscode/text/8/…
5. While illegal entry was virtually never criminally prosecuted under prior Administrations, the crime of illegal reentry of after prior deportation was rarely criminally prosecuted.
6. Those people apprehended trying to cross the border away from an official border crossing were put back in their own countries.
7. I prosecuted many people for the felony of illegal re-entry after prior deportation for aggravated felony. This was a priority in the George W. Bush Administration.
8. The idea was that if a person was previously deported for an aggravated felony, they should be criminally prosecuted (and spend about 5 years in jail) if they re-entered.
9. An aggravated felony under the Immigration Law is defined in 8 USC 1101(a)(43) with subsections (A) - (U). In broad brush, these are violent crimes, weapons offenses, and frauds. law.cornell.edu/uscode/text/8/…
10. The reason that illegal entry and illegal reentry were rarely prosecuted is that the number of criminal prosecutions required would quickly outstrip the prosecutorial and judicial resources to handle them.
11. The current average is that about 300,000 people are apprehended each year crossing the border away from official ports of entry. In 2016, there were only 73,000 people prosecuted for ALL crimes by the US DOJ in all federal courts nationwide. justice.gov/usao/page/file…
12. Turning each illegal entry and illegal reentry case into a federal criminal prosecution would increase the number of federal criminal prosecutions by 4x (from 70,000 people to 370,000 people). The courts could not even handle guilty pleas and sentencing for that many people
13. When people arrive at a US port of entry, they can apply for asylum. If a person applies for asylum, US law requires that they be allowed into the country (although they can be detained) why the asylum application is considered.
14. Historically, when a person who seeks asylum at a port of entry was detained, that was civil detention and family units were kept in tact. I am not certain if that policy has been changed by the current Administration.
15. If an alien is apprehended after crossing away from a port of entry, that alien can state that she is applying for asylum. If that alien is not criminally prosecuted, she (and her family) would be treated like any other asylum-seeker.
16. This meant that she and her family would be detained as a family unit. The quarters were Spartan, but kids were not separated from parents.
17. Historically, the only time that a family unit would be broken up would be in the case of a criminal prosecution. If an alien is criminally prosecuted, she is either held in prison (no bail) or held in criminal-alien status (bail). Even on bail, they are basically in jail.
18. In either case, kids are not put in jail or criminal-alien lockup.
19. The current Administration has changed policy to require that EVERY alien who is apprehended after making a border crossing away from a port of entry is criminally prosecuted.
20. As I noted above, this policy is contrary to all prior precedent and will quickly overwhelm the federal courts, leaving no room for any other criminal prosecution or civil case.
21. The ONLY reason why the Administration has adopted this policy is because aliens who are criminally prosecuted are separated from their families.
22. When John Kelly was Sec. of Homeland Security in 2017, he stated that the reason for considering this policy change was as "deterrance" against people seeking asylum, because the price for being a refugee would be separation from children.
23. This separation is not a "bug" in the Administration's plans, it is the key "feature." The plan is literally impossible to implement for long, because it will take all of the resources of the Department of Justice and every federal judge in America.
24. This is evil. /end
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