Federal prosecutors filed criminal charges against more migrants in May 2018 than at any other time since Donald Trump became president, newly-released government statistics obtained by the Transactional Access Records Clearinghouse reveal. But despite the administration’s “zero tolerance” approach, most people apprehended by Customs and Border Protection officers never found themselves in a criminal courtroom. Only about one-third of people apprehended in May outside of ports-of-entry were prosecuted criminally.
As the report’s authors point out, this shows that the zero tolerance policy was never implemented. CBP agents were still required to exercise their discretion to determine which migrants to refer for federal criminal prosecutions and which to send into the civil immigration law enforcement system. If the government’s goal was to deter migration, as it repeatedly claimed, why not prosecute the 24,299 adults who were apprehended without children?
Interestingly, the government’s much-publicized May campaign failed to reach a record high for most criminal prosecutions in a single month. Instead, its 9,216 referrals put this summer’s high-water mark in third place. CBP sent more cases to federal prosecutors in September 2008 and December 2012. During that period there were an additional eight months in which CBP referred at least 8,000 migrants for criminal prosecution.
These data are a reminder that criminal immigration prosecutions have been growing steadily for years. The Trump administration has shown every interest in continuing that trend and is clearly having some success. But statistics are not everything. Criminal prosecutions and civil removal proceedings both have a devastating impact on migrants and their families. The Trump administration’s decision to wield the power of criminal prosecution against among the most vulnerable migrants–people fleeing for their lives and the lives of their children–represents a low point in an already unfortunate practice of criminalizing migration.