In April 2009, shortly after he assumed office, Attorney General Eric HolderEric Himpton HolderBiden under pressure to pick new breed of federal prosecutors Obama says Senate will vote again on voting rights Obama: Voting rights bill must pass before next election MORE addressed a group of newly minted Federal prosecutors.  He directed them not to blindly seek criminal convictions but to carefully evaluate each case with an eye on doing justice.

"Your job as assistant U.S. attorneys is not to convict people" Holder said. "Your job is not to win cases. Your job is to do justice. Your job is in every case, every decision that you make, to do the right thing.  Anybody who asks you to do something other than that is to be ignored. Any policy  that  is  at  tension  with  that  is  to  be questioned  and  brought  to  my  attention. And I mean that."  


But when it comes to prosecuting undocumented immigrants Holder’s Department of Justice has perpetuated, even exacerbated, a “convict at all costs” policy without regard to whether or not prosecution is the “right thing” to do in any particular case. The Pew Hispanic Trends Research Project recently reported that between 1992 and 2012, the number of unlawful reentry convictions increased an astounding 28-fold, from 690 cases in 1992 to 19,463 in 2012.  The report found that the increase in unlawful reentry convictions alone accounts for nearly half of the growth in the total number of convictions since 1992.

There are those, of course, who argue that prosecution of undocumented immigrants who illegally reenter is an important deterrent which promotes respect for the rule of law. 

But the crime of illegal reentry is more complicated than that--especially given the nation’s rigid, unforgiving, and broken immigration law. The Department of Justice targets nearly all undocumented immigrants they find who illegally reenter the US after having been deported. It doesn’t seem to matter whether the illegal reentry occurred last week or last decade, whether the undocumented immigrant returned to a life of crime or to support a pregnant spouse, raise a U.S. citizen child or care for a sick U.S. citizen parent.

All too often prosecution for illegal reentry after deportation—which, ultimately, is aimed at keeping our communities safe—does little more than tear apart an American family. 

Take, for example, the case of Alfredo Ramos Gallegos, a law abiding, father of 3 U.S. citizen children (including a step-son) who is currently under federal indictment in the Western District of Pennsylvania.  An undocumented immigrant, he was deported nearly 15 years ago and allegedly reentered to care for his pregnant spouse—who happens to be a U.S. citizen.  Ramos Gallegos is a steady provider for his family, an important role model to his loving children, and a vital part of his community.  Importantly, Ramos Gallegos would qualify for a chance to earn his way to lawful immigration status under the bipartisan immigration bill passed by the U.S. Senate last year.  He has a steady work record, has paid his taxes, has no criminal history, and would easily pass background checks.  Yet this past February he was detained by U.S. Border Patrol after a car in which had been a passenger was stopped by the Mentor, Ohio police for a minor traffic infraction.  The Department of Justice is now trying him for illegal reentry after deportation.

Is prosecuting Ramos Gallegos the “right thing” to do according to Attorney General Holder?  Would the Administration agree that justice requires this man be turned into a convicted felon, ineligible to earn legal immigration status and relegated to a lifetime of banishment from his U.S. citizen children?

John Sandweg, the former acting director of U.S. Immigration and Customs Enforcement, recently commented on President Obama’s directive to Homeland Security Secretary Jeh Johnson to find ways to conduct enforcement “more humanely within the confines of the law.”  Sandweg observed that the Department’s “effort on [illegal reentrants and immigration fugitives] disproportionately separates parents and children, breadwinners from families, spouse from spouse.”  He advised that the Department of Homeland Security no longer consider illegal reentrants and immigration fugitives enforcement priorities.

The administration should follow Sandweg’s advice. 

And that includes Attorney General Holder. The Department of Justice should cease the mass “felonization” of thousands undocumented workers across the U.S.  It’s wrong to prosecute hard working, otherwise law abiding undocumented immigrants for alleged illegal reentries that occurred years ago.  And, as a matter of public policy, it makes no sense for the Obama Administration to make felons out of very immigrants they claim to support so that they are ineligible to earn their way to lawful immigration status.

Leopold is past president of the American Immigration Lawyers Association and an immigration reform advocate