On Reentry after Deportation, and Faithfully Executing the Laws

This article was last updated on April 16, 2022

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The Hispanic Trends Project of the Pew Research Center has recently issued a report: “The Rise of Federal Immigration Crimes: Unlawful Reentry Drives Growth”.

As the introduction to the report details:

Dramatic growth over the past two decades in the number of offenders sentenced in federal courts has been driven primarily by enforcement of a particular immigration offense — unlawful reentry into the United States — according to an analysis of data from the United States Sentencing Commission (USSC) by the Pew Research Center.

Between 1992 and 2012, the number of offenders sentenced in federal courts more than doubled, rising from 36,564 cases to 75,867. At the same time, the number of unlawful reentry convictions increased 28-fold, from 690 cases in 1992 to 19,463 in 2012.2 The increase in unlawful reentry convictions alone accounts for nearly half (48 percent) of the growth in the total number of offenders sentenced in federal courts over the period. By contrast, the second fastest growing type of conviction — for drug offenses — accounted for 22 percent of the growth.

This information should be no surprise to anyone who follows, as best they can, statistical trends in immigration enforcement. (I say “as best they can” because this administration seems to feel that it works best in the dark; certainly its track record on revealing honest immigration data and responding in good faith to Freedom of Information Act requests is disgraceful.)

The reason for the dramatic uptick is, quite simply, because analysis of data shows that, in recent years, slightly more than one quarter of the individuals taken into custody by U.S. Border Patrol (USBP) and Immigration and Customs (ICE) agents are aliens who had been previously deported.

Think for a moment about that. One out of every four aliens arrested has been previously deported — often for having committed crimes in the communities where they lived — at a time when the administration has been so earnest in assuring us that the border is under control and that immigration enforcement in the interior is robust and focused.

Call me cynical, call me jaded, but I suspect that the release of the report was not an accident. As Jessica Vaughan reported just a couple of days ago, the Department of Homeland Security (DHS) is planning to order USBP and ICE agents to cease taking many of these repeat offenders into custody. This is apparently pursuant to the president’s directive to DHS officials to review practices to make deportation “more humane”.

I believe the timing of the Pew report’s release was calibrated to bolster the impending DHS move, relying as the report does on data to make the case that there are racial/ethnic dimensions to the arrests and prosecutions, implicitly leaving the reader with an unsettling impression that something untoward is going on.

But it should be no surprise that there are such dimensions, given that the overwhelming number of individuals crossing our borders illegally are Hispanics from Mexico and Central and South America — the countries on or close to our southern border, which is where most illegal entries and reentries occur. In fact, it would be anomalous to the point of absurdity if the reentry prosecution and imprisonment data showed anything else. Individuals from countries much farther away, such as Europe, Asia, or elsewhere, are less likely to be able to attempt reentry after deportation because of the challenges of geography and costs, such as smuggling fees; certainly, they won’t receive visas a second time in order to board an aircraft and show up at a port of entry, where they would be denied admission in any case.

The authors of the report make this statement: “Immigrants charged with unlawful reentry — a federal crime — have entered or attempted to enter the United States illegally more than once. They may also have attempted to reenter the United States after having been officially deported.” (Emphasis added.) This latter sentence suggests a shaky understanding of the law governing the federal felony of reentering the United States after deportation, which can be found at Title 8 of the U.S. Code, Section 1326. The only way to be charged under the statute is if one has been “officially” deported after receiving all due process accorded by the law.

What is more, many of these individuals have been expelled by less formal means many times before the government in frustration finally resorted to formally deporting them. When they are deported, they are given a warning, in writing (in the appropriate language, most frequently Spanish for the reasons described above), advising them that to attempt to reenter illegally constitutes a federal crime for which they can be imprisoned.

Something else that the Pew report doesn’t remark upon, or look at in depth: the reentry after deportation statute provides for graduated penalties, depending on the underlying reasons for the removal. Thus, an alien who reenters the United States after being deported for committing an aggravated felony such as drug trafficking, crimes of violence, etc., faces a substantially longer sentence than a simple removal-and-reentry case. In the latter instance, the likelihood is that the individual will be sentenced to the time he served while awaiting trial and judgment, and turned back over to immigration authorities to be removed again.

Thus, when the authors comment that “On average, the sentence length for these offenders was about two years. As the number of offenders sentenced in federal courts for unlawful reentry increased, so too did the number of immigration offenders incarcerated in federal prisons,” what they have left unsaid, and apparently unexamined, is the data relating to underlying causes for the original deportation. If two years was the average, it is a near-certainty that it could only have been that high because a statistically significant number of the prosecutions presented involved either previously deported aliens convicted of serious criminal offenses, aliens who have repeatedly reentered illegally, or both. Most sitting federal judges are smart enough to know that federal prisons are overcrowded and do not impose unduly onerous sentences of incarceration where they are not merited.

Many of the open borders advocates will argue that not arresting and deporting people previously removed is “humane” because removal tears families apart. This is a palpably false argument because it presumes that all individuals previously removed are responsible fathers and mothers, and it puts many communities at risk by permitting aliens with criminal records to slip once again into their midst while the government looks the other way. Aliens who show a complete contempt for the law are unlikely to live quiet, unassuming existences that do not imperil their neighbors.

The “humane” argument also overlooks that they understood the risks of being in the United States illegally to begin with. Cause begets consequence. If that seems harsh, we must understand that failure or refusal to enforce our immigration laws also bears consequences for the country as a whole. A nation that does not respect its own borders is no nation at all, but simply a welcome mat; it is no more than a transit lounge writ large, for any and all to use and abuse as they see fit.

Now we find that the administration is looking for ways to require its officers to violate their oaths to faithfully execute the laws by now requiring them to look the other way when they see people whose very presence is evidence of a federal felony standing before their very eyes. It is unconscionable, and probably unconstitutional as well.

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