While campaigning, President Donald Trump repeatedly pledged to enact a mass deportation program but, since he returned to the White House in January, a host of legal issues have slowed the popular deportation agenda. Most of those legal issues have centered on “due process,” including determining which courts do and do not have jurisdiction over prosecutions of illegal immigrants. A new directive from the U.S. Department of Justice (DOJ), however, may eliminate some of the confusion. The DOJ’s Office of Legal Counsel (OLC) issued an opinion late last month, reversing a previous policy and now allowing illegal immigrants to be prosecuted anywhere in the U.S. for “eluding examination by immigration officers.”

Under 8 U.S.C. § 1325(a)(2), “eluding inspection” is a criminal offense. The relevant statute declares:

“Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers … shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.”

The OLC wrote in its opinion, “Whether that prohibition reflects a continuing offense is an important question of statutory interpretation that affects potentially thousands of criminal prosecutions each year.” A previous OLC opinion, issued in 1978, determined that if “eluding inspection” were not a continuing offense, then it would render 8 U.S.C. § 1329, which deals with the jurisdiction of federal district courts in such cases, “unconstitutional.” Section 1329 would be “unconstitutional,” the OLC concluded in 1978, if an offense under section 1325(a)(2) were “complete” once an illegal immigrant crosses the border, since section 1329 “nonetheless allowed venue in any place where the alien is apprehended.” Section 1329 itself stipulates, “Notwithstanding any other law, such prosecutions or suits may be instituted at any place in the United States at which the violation may occur or at which the person charged with a violation under section 1325 or 1326 of this title may be apprehended.” Offenses under section 1325(a)(1) are “complete,” not “continuing” — since an illegal immigrant commits a crime the moment that he illegally enters the U.S.

However, in an unpublished opinion in 1978, the U.S. District Court for the District of Idaho implied that section 1325(a)(2) “did not create a continuing offense,” but was a “completed” offense similarly to illegal entry. In order to avoid the “constitutional difficulty” arising from the district court’s implication and the OLC’s interpretation of section 1329, the OLC therefore recommended in 1978 that the DOJ’s prosecutors “charge section 1325(a)(2) only in the district in which the alien entered the United States and avoided the ‘inspection station.’”

“Whether a section 1325(a)(2) offense is continuing is an important issue, and one which has not been conclusively decided by most courts of appeals or the Supreme Court,” the OLC noted last month. “After additional consideration, we have concluded that it describes a continuing offense for purposes of section 1329’s venue provision,” the OLC added, rescinding its 1978 advice not to charge section 1325(a)(2) offenses outside the jurisdiction in which an illegal immigrant has entered the country. “The effect of that instruction has been to severely curtail prosecution of aliens who are not immediately apprehended at the border,” the OLC explained of its 1978 guidance, noting that the nearly-50-year-old directive “has prevented further judicial analysis of whether section 1325(a)(2) describes any continuing offenses.”

“In the past, we have recognized that it can be appropriate to narrow or clarify specific statements or assumptions made in our opinions where they are later found to be on shaky footing or to have caused negative practical implications. This is such a circumstance,” the OLC wrote in rescinding its 1978 guidance. Rescinding the prior directive “would free prosecutors to charge the crime as continuing, which would in turn free courts to ‘check on the correctness’ of our interpretation of this important criminal statute,” the OLC added.

Andrew Arthur, resident fellow in law and policy at the Center for Immigration Studies, explained that the new OLC guidance will likely serve as a means of forcing “sanctuary” cities, where local law enforcement are forbidden from cooperating with federal immigration authorities, to comply with federal immigration law. Since the Immigration and Nationality Act (INA) allows U.S. Immigration and Customs Enforcement (ICE) to issue its own administrative warrants for civil immigration violations, many “sanctuary” jurisdictions ignore ICE requests for cooperation. But the new OLC guidance creates a mechanism for ICE to obtain criminal warrants for illegal immigrants. “Politicos in sanctuary jurisdictions may be happy giving ICE the brush-off, but few will tell their cops to ignore a summons issued by an Article III judge — particularly given that Article III judges have contempt powers,” Arthur wrote. He continued, “This opinion also undermines contentions often made by illegal-immigration advocates that aliens who came here unlawfully aren’t ‘criminals’ per se because immigration removals are civil, not criminal, proceedings.”

“Finally, this opinion gives aliens who entered illegally yet another reason to self-deport, because not only are they now facing civil ICE detention and removal, but federal criminal prosecution, as well. Few things concentrate the mind like the potential of imprisonment,” Arthur observed. He anticipated that ICE prosecutions will “soar” under the new OLC guidance, adding, “And expect sanctuaries to now be forced to comply with the judicial warrants they’ve long claimed they needed in order to help ICE out.”