The Case Against Prosecuting Refugees

65 Pages Posted: 31 Mar 2020

Date Written: March 11, 2020

Abstract

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States without inspection. This practice has contributed to mass incarceration and family separation at the U.S.-Mexico border, and it has prevented refugees from accessing relief in immigration court. Yet federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized courts to punish refugees for illegal entry or reentry. While largely taken for granted today, the idea that refugees may be prosecuted for such acts is in tension with the full text, context, and purpose of the Immigration and Nationality Act. It is also inconsistent with traditional canons of statutory interpretation, such as the Charming Betsy canon, the canon on constitutional avoidance, and the rule of lenity. Federal prosecutors should therefore abandon refugee prosecution, and federal courts should hold that the criminal prohibitions on illegal entry and reentry do not apply to refugees.

Keywords: Refugee, Immigration, Criminal Law, Prosecution, Illegal Entry, Charming Betsy, Constitutional Avoidance, Lenity, Justification, Excuse

Suggested Citation

Criddle, Evan J., The Case Against Prosecuting Refugees (March 11, 2020). Northwestern University Law Review, Vol. 115, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3552726

Evan J. Criddle (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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