04.25.24

Durbin Presses Justice Department to Investigate Disproportionate Prosecution of Asylum Seekers from Muslim-Majority Countries

In 20 months, the Western District of Texas prosecuted a disproportionate number of migrants from Muslim-majority countries, charged under a rarely used statute

SPRINGFIELD – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, sent a request to Attorney General Merrick Garland and Department of Justice Inspector General Michael Horowitz to investigate whether the Justice Department is or has been targeting migrants for prosecution based on their religion, national origin, or any other protected characteristic.

Public reporting from the Los Angeles Times detailed a high number of prosecutions of migrants from Muslim-majority countries pursued by the U.S. Attorney’s Office for the Western District of Texas from October 2021 to May 2023. In those 20 months, more than 60 percent of those charged under 19 U.S.C. § 1459 by the Western District of Texas were from Muslim-majority countries, which is disproportionate to the number of southern border crossings made by that demographic. Notably, the report found that prosecutions under this specific statute were rare prior to this period.

Citing the reporting and a dramatic rise in prosecutions under the rarely used statute, Durbin writes: “The concern that the Department of Justice (DOJ) is targeting for prosecution migrants from Muslim-majority countries is heightened by the use of Section 1459. Historically, DOJ has brought border crossing prosecutions under 8 U.S.C. §§ 1325 and 1326, and rarely used 19 U.S.C. § 1459. However, available records demonstrate that since 2021, prosecutions under Section 1459 have increased dramatically nationwide … Based on the review of available PACER filings by my staff, the U.S. Attorneys’ Office for the Western District of Texas was responsible in large part forthis increase.”

Durbin continues by sharing the story of one of those prosecuted under the rarely used statue, writing: “Among those reportedly prosecuted under Section 1459 was an individual named Muhammed, a member of the persecuted Hazara ethnic minority in Afghanistan and former human rights professor who crossed the border into Texas in April 2022 to seek asylum from the Taliban. An immigration judge granted Muhammed asylum on December 20, 2023. Prior to his release, Muhammed was incarcerated for 602 days—208 days in criminal custody and 395 days in DHS custody.”

Durbin also notes an abrupt drop in prosecutions under the rarely used statute and subsequent rise in prosecutions under two other statutes, following the Los Angeles Times approaching the Department with its preliminary findings, writing: “In April 2023, soon after the Los Angeles Times presented the Justice Department and the Department of Homeland Security with preliminary findings related to the prosecution of individuals under Section 1459, it appears the inordinate number of Section 1459 prosecutions brought by the Western District of Texas abruptly stopped. However, the disproportionate number of prosecutions of migrants from Muslim-majority countries has continued under 8 U.S.C. §§ 1325 and 1326.”

Durbin concludes by highlighting the grave nature of these trends, writing: “These trends are extremely troubling. Prosecutions targeting individuals based on their religion, national origin, or other protected characteristics are anathema to the rule of law. Congress has prohibited such prosecutions in Title VI of the Civil Rights Act of 1964 and the Omnibus Crime Control and Safe Streets Act of 1968, which the Department’s Justice Manual expressly acknowledges. In addition, individuals from Muslim-majority countries, like many others who approach our borders seeking safety, have the right to pursue asylum and should not be targeted for criminal prosecution.”

Durbin then requests a staff briefing and answers to a series of information requests to be answered no later than April 30, 2024.

Full text of the letter to Attorney General Garland is available here.

Full text of the letter to Inspector General Horowitz is available here.

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