U.S. attorney, public defenders, and human rights expert discuss prosecution of noncitizen illegal entry and reentry

UNIVERSITY PARK, Pa. – A U.S. attorney, two federal public defenders, and a human rights expert convened for a panel discussion about the prosecution of noncitizens for illegal entry and reentry on April 21 at Penn State Law.

“Rethinking Reentry: Prosecution, Defense, and Human Rights Perspectives” was hosted by the Center for Immigrants’ Rights Clinic and featured a panel discussion with Peter J. Smith, U.S. attorney for the Middle District of Pennsylvania; Heidi Freese, assistant federal public defender for the Middle District of Pennsylvania; Grace Meng, senior researcher for the U.S. Program of Human Rights Watch; and Lori Ulrich, assistant federal public defender for the Middle District of Pennsylvania.

The panelists discussed the federal interests in prosecuting noncitizens for illegal entry and reentry under 8 U.S.C. §§ 1325-1326, whether such federal interests are served when considering the significant humanitarian costs of the prosecutions, and the role of prosecutorial discretion.

The conversation started with an examination of the purpose of prosecuting illegal reentry, whether incarceration is a deterrent to reentry, and the costs and benefits of prosecuting and criminalizing reentry.

Smith explained some of the mechanics of entry and reentry prosecutions, which begin with the U.S. Attorney’s Office getting a referral for prosecution from the Department of Homeland Security. Once this process has begun, the U.S. attorney prosecuting the case, has less discretionary power whether or not to prosecute.

Freese explained that the public defender meets the client after the indictment and charges, only moments before the first hearing. After obtaining logistical information from the client for the necessary legal paperwork, the public defender has only minutes to then hear the client’s story before going to court.

The panel then focused on possible defenses used with the charges of illegal entry or reentry. Ulrich highlighted defenses such as derivative citizenship, which must be thoroughly investigated to prove, and justification for illegal entry, for example, fear of persecution in the defendant’s home country.  However, many times, when there is no defense, the public defender tries to attack the implementation of the deportation or removal order as faulty. When speaking with clients, the two public defenders also stated they look for mitigating circumstances.

“We hear a lot of stories of why they entered or reentered illegally—the client has children here, he’s looking for work—and we just hope the judge will listen,” Ulrich said. “I find, here in the Middle District, the judges will listen.”

However, Freese said, the opportunity to present mitigating circumstances comes too late in the process.

“By the time our office is involved, the client has been indicted, charged with a felony, and there is very little that can be done in terms of considering mitigation to lessen the charges,” she said. “We’re not telling this information to the prosecutor, but telling this to a judge.”   

The panel concluded by giving suggestions on what can be done in the future to amend the statutes making entry and reentry illegal, and reentry a felony.

“It’s high time we amend these laws,” Meng said. “I’d like to see a practice of considering mitigation information before the prosecution and before sentencing.”

The panel was moderated by clinic students William Brennan and Lauren Picciallo, who spent several months researching and analyzing the entry and reentry statutes and developing an instrument that could be used by attorneys to identify mitigating factors in reentry and entry cases.

Under the supervision of Penn State Law professor Shoba Sivaprasad Wadhia, students in the Center for Immigrants’ Rights Clinic produce white papers, practitioner toolkits, and primers of national impact for institutional clients based in Washington, D.C., and across the nation. The clinic also engages in community outreach and education and provides legal support in individual cases of immigrants challenging deportation or seeking protection by the Department of Homeland Security and in the courts.

Discussion Materials

• Center for Immigrants' Rights Clinic, Entry and Reentry Screening Instrument, April 2016.
• Rethinking Reentry: Prosecution, Defense and Human Rights Perspectives Infographic, April 2016.
• U.S. Sentencing Commission, Quick Facts on Illegal Reentry Offenses.
• PowerPoint presentation from Rethinking Reentry: Prosecution, Defense and Human Rights Perspectives event, April 2016.