When Title 42 expires on Thursday the Biden administration has promised to return to enforcing Title 8, the nation's immigration law. Legal provisions for asylum will be back in force, as will civil penalties for immigration violations and criminal prosecution for unlawful border crossings, reports the El Paso Times. Homeland Security Secretary Alejandro Mayorkas said that Title 8 "carries stiff consequences for irregular migration, including at least a five-year ban on reentry and potential criminal prosecution for repeated attempts to cross unlawfully." "The return to processing migrants under Title 8 authorities will be swift and immediate," he said. How criminal prosecution of immigration offenses will factor into the Biden administration's border strategy — and whether jail time will serve as a deterrent during a new era of migration — remain open questions.
"I imagine those criminal prosecutions will probably come back but I don’t know how effective they will be at knocking down the numbers," said Laura Collins, an immigration expert at the Dallas-based George W. Bush Institute. "I don’t put much emphasis on deterrence because it is relatively ineffective when there is a robust economy or when you have a refugee crisis." The Border Patrol will target people for prosecution using these aggravating factors: migrants who, in trying to evade apprehension, put people at risk or damage property; and anyone who harbors or transports migrants. "We've had a lot of migrants trying to evade and that comes with people who destroy property and who put people's lives at risk," said Border Patrol El Paso Sector Chief Scott Good. "That's the major one: the smugglers, the load drivers, the stash houses." Nia Rucker witnessed the history of immigration prosecutions as a federal public defender in southern New Mexico. Now as policy counsel and regional manager for ACLU New Mexico, Rucker worries about a return to past enforcement strategies, "when we were criminalizing people for fleeing violence," she said. The Justice Department made immigration offenses among most-prosecuted crimes in federal courts. The number of immigration-related prosecutions topped 80,000 annually in seven of 10 years between 2008 and 2018, according to the Pew Research Center, more than double the level in the four years prior. They hit an all-time peak over 110,000 in 2019, when nearly two-thirds of criminal prosecutions nationwide were classified by federal prosecutors as immigration-related.