Deterrence, the Key to Border Security, Is Back

Deterrence is the key to border security, and Congress gave DHS four main tools to deter would-be migrants from entering illegally: fencing and other border impediments; detention (mandated for illegal migrants at the borders and ports); deportation; and prosecutions for illegal entry. The last is most effective, and DOJ publishes monthly statistics showing how many aliens it has prosecuted for “improper entry” and reentry under the Immigration and Nationality Act (INA). Here’s how to decode those stats; but cutting to the chase, the Southwest border in New Mexico now appears to be the destination of last resort for the most intrepid of illicit entrants. 

Section 275 of the INA

One of the most popular tropes you’ll hear in the media and from opponents of the president’s immigration policies is that there’s nothing “illegal” about being an illegal alien. Removal hearings are civil, not criminal, in nature and therefore illegal presence is roughly akin to allowing your parking meter to expire without putting more change in the meter or moving your car.

Removal proceedings are a civil process, which is why alien respondents in immigration court are not eligible for paid counsel at government expense. But entering illegally is a crime, and depending on how many times you’ve done it, a serious one.

Once the Biden administration broke with all its predecessors and ditched deterrence, nothing could control the migrant wave except renewed deterrence.

Section 275 of the INA, captioned “improper entry”, actually includes three separate offenses.

Under section 275(a)(1), it’s a crime for an alien to enter or attempt to enter “at any time or place other than as designated by immigration officers”. Section 275(a)(2) makes it a federal offense to “elude examination or inspection by immigration officers”. And section 275(a)(3) includes a fraud element, criminalizing any attempt to enter the United States “by a willfully false or misleading representation” or by willfully concealing “a material fact”.

Section 275(a)(1) is the easiest to charge and given that most crimes in this country are prosecuted at the state and local level, it’s also one of the most prosecuted of federal crimes.

For a first offense, a violation of section 275 of the INA is a class B misdemeanor under the federal sentence classification scheme, carrying a potential penalty of up to six months’ imprisonment and a fine, while second and subsequent offenses are class E felonies, carrying a potential penalty of two years’ incarceration and a fine.

The Differences Between Federal Magistrates and District Court Judges

Each month, DOJ updates and publishes the “Prosecuting Immigration Crimes Report” (PICR), a tally of prosecutions various U.S. Attorney’s Offices have filed for violations of sections 274 (alien smuggling and related crimes), 275, and 276 (reentry after formal removal) of the INA.  

To decode the sections dealing with section 275 prosecutions in that report, you must first understand the different responsibilities assigned to federal magistrate judges and U.S. district court judges.   

Federal magistrate judges, appointed by the courts for 8-year terms without requiring presidential nomination or Senate consent, can preside over misdemeanor and petty offense cases, and given that initial illegal entries under section 275 are simple misdemeanors, they usually handle them.

U.S. district court judges alone preside over trials for federal felony offenses, and so once charges cross that line, the cases go to them (though magistrates can issue warrants, consider release requests, and conduct preliminary hearings in felony cases).

Section 275 Misdemeanor Filings

According to the PIRC, U.S. Attorney’s offices filed 2,190 initial improper entry charges under section 275 of the INA with federal magistrates in June, down slightly from May (2,475, a 12-percent decline), but more than six times as many misdemeanor 275 charges they filed in November (331) — a month in which Border Patrol agents apprehended nearly six times as many illegal entrants (47,500 total apprehensions in November compared to 8,024 in June).

U.S. Attorneys in the Southern and Western districts of Texas — that is, the border-adjacent federal districts in the Lone Star State — had the lion’s share of those misdemeanor section 275 cases, combined accounting for more than 1,400 of the total filings, or 64 percent, in June.

The U.S. Attorney’s Office for the District of New Mexico added an additional 202 misdemeanor 275 filings in June, trailing the U.S. Attorney’s offices in the Southern and Western Districts of Texas as well as in the District of Arizona, the latter of which filed 559 such charges last month.

Section 275 Felony Filings

With those misdemeanor improper entry filings in mind, look at the PIRC figures for felony 275 filings with U.S. district court judges.

In total, 992 felony 275 cases were filed in June, again a modest (11 percent) decline compared to May (1,102), but also a much lower (22 percent) increase compared to November (813). 

For reference, that November total was larger than the combined total for felony 275 prosecutions in all of FY 2023 (584), and felony 275 reentry charges didn’t really start to tick up until January 2024, when there were 504 such filings compared to 189 the month before.

Waves of repeat border offenders were either too much for even the Biden administration to stomach by the end or U.S. Attorneys were directed to boost their filings when illegal migration began to doom Democrats’ electoral prospects in the November 2024 general election. 

The PIRC statistics really get interesting, however, when you focus on where the latest 275 felony reentry charges are being filed.

In Texas in June, the U.S. Attorney’s office in the Southern District filed four such cases, and the Western District filed two. Remember, those districts had nearly two-thirds of misdemeanor 275 filings for first offenders last month, but if these figures are any indication, serial illicit crossers knew it was better to go elsewhere for a second chance.

And by “elsewhere” I mean west. In June, the U.S. Attorney’s office for the Southern District of California filed 363 felony 275 charges with district court judges, nearly six times as many as in November (61). And last month, the U.S. Attorney’s office in Arizona filed 329 felony improper entry charges, albeit fewer than half as many as in November (737). 

New Mexico

The real jaw-dropping difference, however, can be found in New Mexico. In the past two months, the U.S. Attorney’s office there filed 819 separate felony charges against aliens who entered illegally, left, and reentered, 543 in May and 276 in June. 

By comparison, federal prosecutors filed exactly one felony 275 charge in New Mexico in the prior seven months (in November) and just four in all of FY 2024 and six in FY 2023.

Most 275 charges are filed in the district in which the illegal crossing occurred, which means most of those felony charges represent aliens who crossed illegally from Mexico into New Mexico.

To put that into context, the Southwest border is 1,954-miles long, and the majority (1,254 miles) runs along the Rio Grande separating Mexico from Texas. Another 372.5 miles of the international boundary divide Arizona and its sister state of Sonora, Mexico.

New Mexico sits on slightly more of the Southwest border (180 miles, give or take) than California (140 miles), but the latter is much more developed, particularly in the west, where the cities of Tijuana and San Diego almost abut.  

Aside from Sunland Park, N.M. (population 17,805), near El Paso, Texas, there’s a whole lot of nothing on the New Mexico side of the border, save the mid-state village of Columbus (population: 1,147).

So why would so many illegal re-entrants want to go there? My (educated) guess is they were stopped and turned back in Texas and followed the sunset, or in Arizona and headed towards a new dawn.

Note that of the 543 aliens charged with felony 275 reentry in the District of New Mexico in May, 85 percent (222) were from Mexico, and as cross-border nationals are amenable to simple voluntary return by Border Patrol through the nearest port of entry.

Conversely, the other thing dispositively apparent from reviewing the PIRC is that once illegal entrants get bounced from Arizona and Texas, they’re in no hurry to return there.  

Like the cowboy anti-hero in Marty Robbins’ 1959 Grammy-winning classic, “El Paso”, they too head “out to the badlands of New Mexico” and try their luck again.

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I’ve long argued that deterring illegal entries is the key to border security. Once the Biden administration broke with all its predecessors and ditched deterrence, nothing could control the migrant wave except renewed deterrence. And criminal prosecutions for illegal entry, the best deterrent, are on the rise again.