A few months ago, Attorney General Jeff Sessions implemented a "zero tolerance policy", requiring the Department of Justice (DOJ) to criminally prosecute every single person caught crossing the border illegally. This has resulted in large numbers of children being separated from their parents, so President Trump passed an executive order keeping parents together with their kids in DHS custody as they await criminal prosecution.

Now the thing is, in order for DOJ to criminally prosecute someone for illegal entry, they need to find out about that person first. That’s mainly done through criminal referrals from two agencies, Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). CBP apprehends people who are within 100 miles of the border, and ICE apprehends people in the rest of the country.

In any case, in response to President Trump’s executive order, the head of CBP announced that CBP is temporarily suspending criminal referrals of illegal entries by families, because they don’t currently have the resources needed to detain families together. But my question is, has ICE similarly stopped criminal referrals of illegal entries by families? Have any ICE officials discussed this?

  • Why the downvotes? Jul 2, 2018 at 15:38
  • 1
    I'm guessing the down votes are because this is a "third rail" issue. Touching it in any way will get you punished.
    – user21424
    Jul 8, 2018 at 22:28

1 Answer 1


The legal situation in this case is nebulous, due to conflicting statements by CBP, ICE, and the DOJ. CBP, as you state, has said they will temporarily stop criminal referrals of illegal entrants. Specifically, they claim they need more support from ICE in order to increase detention capacity. The Department of Justice has claimed prosecutions for illegal entry will continue. ICE has made no official statement that I can find, however sources indicate that they are near capacity and as such are releasing migrants with ankle bracelets, an indicator of non-prosecution. The facts on the ground remain confusing--some migrants have been brought to courthouses and not charged, others were. It's important to remember that the CBP is the larger source of potential criminal referrals, as their jurisdiction covers the substantial majority of the illegal entrant population, as well as 65% of the US population overall.

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