U.S. probing prosecutions of migrants from Muslim-majority countries exposed by Times investigation

EL CAJON, CA - JUNE 22: Shamsuddin Shams, a 25-year-old Afghan man who was journalist back home, was prosecuted in 2022 in Texas after crossing the border seeking asylum. He spent 8 months in prison. Shams share a room with three others in an apartment in El Cajon, CA. (Irfan Khan / Los Angeles Times)
Shamsuddin Shams, an Afghan man who was a journalist back home, was prosecuted in 2022 in Texas after crossing the border to seek asylum. He spent eight months in prison. (Irfan Khan / Los Angeles Times)

The Department of Homeland Security has opened an investigation into the federal government's use of a little-known law to disproportionately prosecute and imprison migrants from Muslim-majority countries.

A Times investigation published late last month revealed the disproportionate nature of the prosecutions in Del Rio, Texas. The Department of Justice’s manual for U.S. attorneys says that a “person’s race, religion, sex, national origin or political association, activities or beliefs” should not affect a prosecutor’s decision “to commence or recommend prosecution or take other action against a person.”

For an 18-month period beginning in late 2021, federal prosecutors in Del Rio charged more than 200 migrants under U.S. 19 1459, a rarely used law that demands that people crossing into the United States do so at a checkpoint and report to a customs office. Migrants from Muslim-majority countries make up a tiny percentage of the people who cross the southern border without authorization. But more than 60% of the migrants the Del Rio prosecutors charged during that period were from Muslim countries.

The investigation is being led by Homeland Security's Office for Civil Rights and Civil Liberties. Because the office lacks jurisdiction over the Justice Department, its inquiry will focus on whether U.S. Customs and Border Protection's referrals of migrants for prosecution disproportionately targeted people from Muslim countries.

“CRCL has opened a complaint investigation pertaining to allegations that CBP’s referrals of noncitizens for criminal prosecutions under 19 U.S.C. § 1459 is targeting individuals from Muslim-majority countries. CRCL is unable to provide further information at this time because the investigation is ongoing,” a department spokesperson said in a statement.

The Times report was met with concern from civil liberties advocates and politicians.

“Discriminatory practices not only erode the moral fabric of a society but also tarnish a nation’s reputation on the global stage. We call on federal authorities to investigate this alleged discriminatory treatment, to hold those responsible accountable and to rectify these unjust practices,” Corey Saylor, advocacy director for the Council on American-Islamic Relations, said in a statement.

The group called on the Justice Department’s inspector general or civil rights office to launch its own investigation of the prosecutions.

A department spokesperson did not comment on the matter.

Rep. Ilhan Omar (D-Minn.) this month also had called for an investigation.

“The Biden Admin must fully investigate these discriminatory practices by border authorities,” she wrote on X, the platform formerly known as Twitter.

Federal officials have refused to explain what triggered the increased prosecutions.

The Del Rio prosecutions using the little-known law appeared to stop soon after The Times presented government officials with preliminary data. Since then, federal authorities in Del Rio have prosecuted more than 50 people for the more commonly charged crime of illegal entry. Those prosecutions still appear to disproportionately affect migrants from Muslim countries: Roughly 50% of those charged are from Muslim nations.

Homeland Security's civil rights office regularly conducts internal investigations based on “complaints filed by the public regarding Department policies or activities, or actions taken by Department personnel,” according to its website. The office previously investigated the detention of Iranian Americans at the U.S.-Canada border in 2020 and has conducted many investigations into conditions under Immigration and Customs Enforcement custody.

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This story originally appeared in Los Angeles Times.