Hastings Constitutional Law Quarterly


Criminal prosecution for the immigration-related infractions of illegal entry and illegal reentry have escalated dramatically under the Trump Administration, which has made targeting immigrants a top priority. This escalation is happening at a time when the population coming to the U.S. southern border is largely seeking safety from persecution and danger. The United States does not recognize asylum as a defense to illegal entry or illegal reentry, and asylum seekers are not excluded from being charged and criminally prosecuted for these infractions, despite U.S. treaty obligations prohibiting this practice. As a result, people coming to the United States to seek asylum-a legal act-are penalized, detained in federal prisons, and in some cases deported back to the persecution and danger that they fled. In addition, criminal prosecution in the United States for these immigrationrelated infractions flout due process and fairness, despite longstanding precedent that noncitizen, criminal defendants are entitled to full constitutional protections, namely those enshrined in the Fourth, Fifth, Sixth. and Fourteenth Amendments. Yet the Trump administration has increasingly violated such protections on a quest to criminally charge all border crossers for immigration infractions, regardless of motive or vulnerability. This Article provides an overview of how the criminal justice system violates the constitutional rights and human rights of asylum seekers and other vulnerable immigrants. This Article argues that America's legacy of providing protection and refuge to the world's most vulnerable is increasingly at risk under the policies and practices of the Trump administration.