Skip to Content

Rescission of Zero-Tolerance Policy for Improper Entry

29 Jan

On January 26, 2021, Acting Attorney General Monty Wilkinson issued a memorandum to federal prosecutors formally rescinding the Zero-Tolerance for Offenses Under 8 U.S.C. 1325(a) policy implemented by the Trump administration on April 6, 2018. 
Under the now rescinded zero-tolerance policy, any non-U.S. citizen who entered or attempted to enter the United States without inspection or was granted entry into the United States by a willfully false or misleading misrepresentation could be immediately prosecuted for a federal crimewhich could result in both fines and imprisonmentActing Attorney General Wilkinson admonished the zero-tolerance policy in his memorandum, stating that “[a] policy requiring a prosecutor to charge every case referred for prosecution under 8 U.S.C. Sec. 1325(a) without regard for individual circumstances is inconsistent with our principles.” 
The rescission memorandum allows the U.S. Department of Justice and its federal prosecutors to consider multiple factors surrounding a potential criminal charge under 8 U.S.C. Sec. 1325(a) against the non-U.S. citizen entering the United States, stating that the Department should account for “individualized factors, including personal circumstances and criminal history, the seriousness of the offense, and the probable sentence or other consequences that would result from a conviction.” As explained by the Acting Attorney General, consideration of these factors is consistent with the Department’s Principles of Federal Prosecution, bringing improper entry prosecutions in line with the majority of federal criminal prosecutions. 

Foster will continue to monitor developments in connection with the new administration’s immigration policies and will make future updates available on our firm’s website at