Courts shift­ing from sim­ple de­por­ta­tions to mass con­vic­tions

Trump ex­pand­ing im­mi­gra­tion pol­icy that crim­i­nal­izes il­le­gal bor­der crossers

Houston Chronicle Sunday - - FRONT PAGE - By Lomi Kriel

DEL RIO — The shack­led mi­grants in or­ange jump­suits shuf­fled into this bor­der town’s small fed­eral court­room one re­cent morn­ing, each fac­ing a short pri­son sen­tence and swift de­por­ta­tion for the fed­eral crime of en­ter­ing the United States il­le­gally.

In other ar­eas along the bor­der, they might have been sim­ply de­tained be­fore be­ing quickly re­moved in an ad­min­is­tra­tive process out­side of any court­room. Per­haps, some would have had a chance to make their case to an im­mi­gra­tion judge.

But it was here, in 2005, that frus­trated Bor­der Pa­trol agents de­vel­oped a pro­gram they named Op­er­a­tion Stream­line to pros­e­cute all mi­grants caught within a stretch of the bor­der en masse and chan­nel them into the fed­eral jus­tice sys­tem, where the Bu­reau of Pris­ons has more re­sources to hold them for longer be­fore de­por­ta­tion.

So it took U.S. Mag­is­trate Judge Col­lis White lit­tle more than an hour to read all of the 29 shack­led de­fen­dants their rights, de­scribe their crime of en­ter­ing with­out in­spec­tion, and then go around the court­room, in­quir­ing whether they wanted to plead guilty.

Shar­ing a sin­gle de­fense lawyer, all said they did.

The judge left them with a stern warn­ing be­fore they were hauled off to pri­son.

“Next time,” he said, “it will be two years.”

Now, Pres­i­dent Don­ald Trump’s ad­min­is­tra­tion is ex­pand­ing this pro­gram of dizzy­ingly fast mass con­vic­tions to other fed­eral courts along the bor­der in Ari­zona, even Cal­i­for­nia, and has, un­der a new di­rec­tive from At­tor­ney Gen­eral Jeff Ses­sions, or­dered U.S. at­tor­neys across Amer­ica to pri­or­i­tize such im­mi­gra­tion prose­cu­tions.

“For those that con­tinue to seek im­proper and il­le­gal en­try into this coun­try, be fore­warned: This is a new era. This is the Trump era,” Ses­sions said in April as he is­sued a mem­o­ran­dum ex­pand­ing the en­force­ment of im­mi­gra­tion crimes, or­der­ing fed­eral prose­cu­tors to pur­sue the most se­ri­ous crim­i­nal charges for cross­ing the bor­der un­law­fully.

Never mind sim­ple de­por­ta­tions; Ses­sions wants more mi­grants who cross the bor­der il­le­gally to be charged crim­i­nally with mis­de­meanors for first of­fenses, and re­peat of­fenses pros­e­cuted as felonies pun­ish­able by up to 20 years in pri­son. The crim­i­nal con­vic­tion can pre­vent any­one from ever re­turn­ing legally again — even if they qual­ify for such a sta­tus. Many of these cases are pros­e­cuted in the fast-track mass hear­ings char­ac­ter­is­tic of Op­er­a­tion Stream­line, which the govern­ment re­named last year as the Crim­i­nal Con­se­quence Ini­tia­tive.

“Now that we have a new ad­min­is­tra­tion in of­fice, more sec­tors are uti­liz­ing this,” said Car­los Vil­lar­real, an as­sis­tant Bor­der Pa­trolchiefover Stream­line.

Yuma and Tuc­son, Ariz., have re­vived ze­ro­tol­er­ance prose­cu­tions and he said Cal­i­for­nia sec­tors would start im­ple­ment­ing the pro­gram next year.

“They’re go­ing af­ter the Del Rio model now,” Vil­lar­real said. “The part­ner­ship is in place with the man­date from the at­tor­ney gen­eral.”

The ex­pense to the fed­eral courts and Bu­reau of Pris­ons of crim­i­nal­iz­ing what is usu­ally a civil of­fense is stag­ger­ing. De­tain­ing mi­grants on such charges alone costs some $1 bil­lion a year, ac­cord­ing to es­ti­mates by Grass­roots Lead­er­ship, an ad­vo­cacy group in Austin op­pos­ing in­car­cer­a­tion.

The crime of il­le­gal im­mi­gra­tion now makes up al­most half of all fed­eral cases and 80 per­cent of the dock­ets in the Western and South­ern Dis­tricts of Texas, which in­cludes Hous­ton.

“You only have so many court­rooms, so many judges, so many at­tor­neys. You only have so much jail space in court­houses and only so many U.S. mar­shals,” said Randy Capps, di­rec­tor of re­search for U.S. Pro­grams at the Mi­gra­tion Pol­icy In­sti­tute, a think tank in Wash­ing­ton, D.C. “Putting peo­ple in fed­eral pri­son is re­ally ex­pen­sive. … It costs a lot of money to pros­e­cute peo­ple in this way.”

With the Trump crack­down in force, im­mi­gra­tion cases in fed­eral courts spiked 27 per­cent in May from the pre­vi­ous month, jump­ing an­other 18 per­cent to more than 5,500 filed in June, ac­cord­ing to an analysis of fed­eral data by the Trans­ac­tional Records Ac­cess Clear­ing­house, a data re­search group at Syra­cuse Uni­ver­sity. Most of them were for en­ter­ing the coun­try with­out au­tho­riza­tion.

Mean­while, the sec­ond­most pur­sued of­fense by U.S. at­tor­neys — go­ing af­ter drug-re­lated of­fenses dur­ing the height of the na­tion’s opi­oid epi­demic — made up just 14 per­cent of all new fed­eral cases this spring, fall­ing to its low­est level in a quar­ter of a cen­tury, ac­cord­ing to Syra­cuse Uni­ver­sity.

“Ev­ery other type of fed­eral crime on the books — drugs, fi­nan­cial crimes — is get­ting pushed aside in fa­vor of throw­ing more re­sources into go­ing af­ter peo­ple vi­o­lat­ing im­mi­gra­tion laws,” said César Cuauhté­moc Gar­cía Hernán­dez, a Uni­ver­sity of Denver pro­fes­sor fo­cused on the in­ter­sec­tion of crim­i­nal and im­mi­gra­tion law. “We’ll have to see whether the (Texas) South­ern and Western District be­comes the ca­nary in the coal mine, if they be­come the model for the rest of the coun­try.”

Sup­port­ers of ex­pand­ing im­mi­gra­tion prose­cu­tions say the prospect of pri­son time has con­trib­uted to his­tor­i­cally low ap­pre­hen­sions at the bor­der and de­ter mi­grants from try­ing to re­turn. Bor­der Pa­trol of­fi­cials point to the agency’s own fig­ures show­ing that the num­ber of peo­ple at­tempt­ing to cross the bor­der again within a year fell from 29 per­cent in 2007 to 14 per­cent in 2014.

The Govern­ment Ac­count­abil­ity Of­fice, how­ever, has found prob­lems with the agency’s method­ol­ogy, sug­gest­ing re­turn rates ba­si­cally re­mained un­changed when mea­sur­ing over a more re­al­is­tic time frame of three years and ex­clud­ing im­mi­grants who stayed in the United States in that pe­riod.

While the le­gal­ity of such mass ex­pe­dited hear­ings — a month­s­long fed­eral process con­densed into one — has been up­held by ap­pel­late courts, ad­vo­cates say the pro­ceed­ings de­prive im­mi­grants of due process.

In par­tic­u­lar, they say it pun­ishes asy­lum seek­ers in a vi­o­la­tion of in­ter­na­tional treaties and can deny them an op­por­tu­nity to make their claims for refugee sta­tus at all.

“It’s an en-masse way to cut off ju­di­cial re­view and due process for im­mi­grants,” said Lena Graber, a staff at­tor­ney at the Im­mi­grant Le­gal Re­source Cen­ter, an ad­vo­cacy group in San Francisco.

“You only have so many court­rooms, so many judges, so many at­tor­neys. You only have so much jail space in court­houses and only so many U.S. mar­shals. Putting peo­ple in fed­eral pri­son is re­ally ex­pen­sive . ... It costs a lot of money to pros­e­cute peo­ple in this way.” Randy Capps, Mi­gra­tion Pol­icy In­sti­tute

Cross­ing the U.S. bor­der with­out a visa or other au­tho­riza­tion has been a crime since 1929, when Cole­man Liv­ingston Blease, a white su­prem­a­cist sen­a­tor from South Carolina, pro­posed it to cut down on Mex­i­can im­mi­gra­tion.

Sim­ply be­ing here il­le­gally, how­ever, has al­ways been a civil of­fense, pun­ish­able by de­por­ta­tion.

For decades, the fed­eral crim­i­nal statute was rarely used, re­served for only the most egre­gious of­fend­ers or those with se­ri­ous crim­i­nal records.

But in 2005, as many Cen­tral Amer­i­cans streamed over the Ea­gle Pass golf course hug­ging the Rio Grande, the frus­tra­tion of Bor­der Pa­trol agents in the Del Rio sec­tor bub­bled over.

Un­like Mex­i­cans or Cana­di­ans, who can be bussed quickly back across the bor­der, de­port­ing res­i­dents from other coun­tries through the civil im­mi­gra­tion courts was, and re­mains, a more com­pli­cated process in­volv­ing con­sular doc­u­ments and flights.

That means they have to be kept in de­ten­tion longer. But there wasn’t enough bed space to hold them all. When agents re­leased them with a no­tice to ap­pear in im­mi­gra­tion court, many didn’t show up.

All that changed with Op­er­a­tion Stream­line. Sud­denly, catch and re­lease be­came catch, con­vict and de­port.

Within a year, the num­ber of mi­grants ap­pre­hended in the Del Rio sec­tor had halved to 23,000 by 2007, a drop Bor­der Pa­trol agents cred­ited to the threat of crim­i­nal pros­e­cu­tion. Michael Chertoff, then-sec­re­tary of the De­part­ment of Home­land Se­cu­rity, said it is a “very good pro­gram, and we are work­ing to get it ex­panded.”

Over the next few years, sim­i­lar zero-tol­er­ance pros­e­cu­tion ini­tia­tives were im­ple­mented in six of the nine south­west­ern bor­der sec­tors. In Cal­i­for­nia, U.S. at­tor­neys de­clined to take part.

By 2013, mis­de­meanor and felony prose­cu­tions for cross­ing the bor­der had sky­rock­eted to more than 91,200 cases, a 500 per­cent in­crease from 2003. Sixty per­cent of those charges were filed in the South­ern and Western Dis­tricts of Texas.

Pres­i­dent Barack Obama pros­e­cuted a record 631,315 peo­ple for cross­ing the bor­der, more than 2½ times as much as un­der Pres­i­dent Ge­orge W. Bush.

But with the courts clogged, re­sources strained, com­pre­hen­sive im­mi­gra­tion re­form stalled in Con­gress and more fam­i­lies and chil­dren cross­ing the bor­der dur­ing Obama’s sec­ond term in of­fice, the pen­du­lum swung away from crim­i­nally prose­cut­ing ev­ery bor­der crosser — but not in Del Rio. BBB

Af­ter Judge White read the 29 shack­led de­fen­dants their rights, a court in­ter­preter asked each whether they un­der­stood. A cas­cade of “Si” echoed around the room.

“There are very im­por­tant con­se­quences to plead­ing guilty,” the judge said. “You will be de­ported. If you come back again il­le­gally, you’ll be look­ing at a felony charge and spend as much as 20 years in pri­son. You won’t be able to ap­ply for any kind of le­gal sta­tus for at least the next five years.”

The hour­long mass hear­ing has all the well­worn fa­mil­iar­ity and rote me­chan­ics of a Shake­speare play — the script never de­vi­ates, only the ac­tors do.

The im­mi­grants nod­ded solemnly. Com­ing from Mex­ico, El Sal­vador, Hon­duras and Gu­atemala, some were con­struc­tion work­ers or farm­ers try­ing to find work, but many were flee­ing vi­o­lence back home or try­ing to re­unite with their fam­i­lies. About one in three had been de­ported be­fore.

Regi­nald Van Wade, cost­ing tax­pay­ers $132 an hour as the court-ap­pointed coun­sel, gave all his 29 clients, whom he’d met for the first time in jail the day be­fore, the same stan­dard advice: They could plead guilty to the mis­de­meanor and re­ceive some 10 days for a first of­fense, or they could take the case to trial, where los­ing is al­most guar­an­teed, and risk much longer in pri­son. Ei­ther way, they would likely be de­ported.

Be­fore their pleas were en­tered, Van Wade read brief sum­maries of each im­mi­grant’s sit­u­a­tion, in­clud­ing whether they had crim­i­nal records.

Elvis Rivera has a wife and chil­dren in the U.S.

Juan Do­rantes, a horse trainer, was on his way to Alabama to earn money for his fam­ily back home. He had been de­ported twice be­fore.

Julio Flores said he left El Sal­vador af­ter a gang seized his hard­ware store.

The at­tor­ney turned to Surema Mon­talvo and said: “She is es­cap­ing vi­o­lence.”

The woman was try­ing to es­cape a Mex­i­can drug car­tel, whose mem­bers had threat­ened her af­ter she saw them steal­ing from oil pro­duc­ers.

So des­per­ate was she that this was her sec­ond time in this very court­house, hav­ing been con­victed here for il­le­gal en­try and de­ported just a few weeks be­fore. Her hus­band and three chil­dren are in At­lanta. In Mex­ico, her brother had been kid­napped.

But this was not the venue to make her case for asy­lum.

The judge said that he un­der­stood why the mi­grants wanted to join their fam­i­lies here or es­cape dan­ger back home. But there was noth­ing he could do in this court. They would have to take up their claims with an im­mi­gra­tion of­fi­cer af­ter serv­ing their sen­tence.

U.S. District Judge Alia Moses, who has over­seen Stream­line hear­ings in this Del Rio court­house since 2005, said crit­ics of the pro­gram are mis­tak­ing due process con­cerns for is­sues about the laws them­selves.

“A lot of peo­ple rais­ing is­sues with the pros­e­cu­tion don’t want to see the laws in place. My view is, ‘That’s fine. Go to Con­gress,’ ” she said. “The im­mi­grants come into court, we ad­vise them of their rights, we deal with them in­di­vid­u­ally when it comes to their own cases, an at­tor­ney is al­lo­cated, what part of the process are they not get­ting that they’re due?” BBB

One of the big­gest con­cerns ad­vo­cates ex­press about Op­er­a­tion Stream­line is that it not only wrongly pun­ishes mi­grants with valid asy­lum claims — well-founded fears of per­se­cu­tion in their home coun­tries — but may pre­vent them from mak­ing such pe­ti­tions at all.

The De­part­ment of Home­land Se­cu­rity’s own Of­fice of In­spec­tor Gen­eral iden­ti­fied this as a prob­lem in 2015, not­ing that the United Na­tions con­ven­tion on refugees, to which the U.S. is a sig­na­tory, holds that coun­tries should not im­pose penal­ties on refugees who en­ter un­law­fully to ask for asy­lum.

“Bor­der Pa­trol does not have guid­ance on us­ing Stream­line for aliens who ex­press fear of per­se­cu­tion or re­turn,” it said. “Its use of Stream­line with such aliens is in­con­sis­tent and may vi­o­late U.S. treaty obli­ga­tions.”

The agency ar­gues that mi­grants can re­quest asy­lum af­ter serv­ing their pri­son sen­tence. But many never get that chance.

Both the U.S. Com­mis­sion on In­ter­na­tional Re­li­gious Free­dom and Hu­man Rights First, a na­tional non-profit, have doc­u­mented dozens of in­stances in which Cus­toms and Bor­der Pro­tec­tion of­fi­cers wrongly didn’t re­fer mi­grants for asy­lum in­ter­views or pres­sured them into with­draw­ing their re­quests.

In April, for in­stance, agents ap­pre­hended a Mex­i­can fam­ily near Del Rio, ac­cord­ing to the re­searchers. They told agents that they had been ex­torted, beaten, kid­napped and shot by mem­bers of a car­tel that also had tar­geted other rel­a­tives.

Nonethe­less, they were con­victed of il­le­gal en­try through Op­er­a­tion Stream­line and swiftly de­ported with­out see­ing an im­mi­gra­tion judge to ask for asy­lum.

It was only when they tried again to cross the bor­der a few weeks later that they were able to pur­sue their claim.

Even when mi­grants carry U.S. govern­ment

pa­per­work specif­i­cally re­quest­ing asy­lum, they are of­ten pros­e­cuted. Nay­ron Pineda, who fled Venezuela in May af­ter he was threat­ened for protest­ing the tee­ter­ing au­thor­i­tar­ian govern­ment, handed the of­fi­cial U.S. pa­per­work re­quest­ing asy­lum to Bor­der Pa­trol agents when they ap­pre­hended him, his wife and their 15-yearold daugh­ter in Pre­sidio in West Texas. His sis­ter in Colorado had sent him the doc­u­ment.

De­spite the asy­lum re­quest, and no his­tory of crim­i­nal or im­mi­gra­tion vi­o­la­tions, agents re­ferred the par­ents for pros­e­cu­tion and booked them into de­ten­tion. They sent the daugh­ter to a fed­eral fos­ter care fa­cil­ity in El Paso, and she was even­tu­ally re­leased to her aunt.

The cou­ple pleaded guilty to il­le­gal en­try. But in their case, they were spared im­me­di­ate de­por­ta­tion, trans­ferred in­stead to an im­mi­gra­tion de­ten­tion fa­cil­ity to try make their case for asy­lum.

Con­tro­versy around Op­er­a­tion Stream­line also has cen­tered on whether it vi­o­lates due process. The pro­ce­dural short­cuts put such ba­sic rights at se­ri­ous risk, Hu­man Rights Watch found.

Pub­lic de­fend­ers and de­fense at­tor­neys said many im­mi­grants do not un­der­stand the im­pact of plead­ing guilty, which al­most all of them do. In some dis­tricts, plea agree­ments re­quired mi­grants to waive chal­lenges to pre­vi­ous de­por­ta­tion orders and ad­mit that they didn’t have a fear of re­turn­ing home, for­feit­ing any claim to asy­lum.

Some ad­vo­cates say the vol­ume of cases and speed of the process make mis­takes in­evitable.

“The court wants to race through,” said Chris Car­lin, an as­sis­tant fed­eral pub­lic de­fender in the Alpine/Pe­cos divi­sion, who noted that many of his clients are indige­nous Gu­atemalans who hardly even speak Span­ish and don’t grasp the process.

Last year, his of­fice over­saw 2,500 such prose­cu­tions, up from 350 in 2002.

“They are prose­cut­ing as many peo­ple as the sys­tem will bear,” he said. “It’s very hard to keep up with.”

His boss, Mau­reen Franco, the fed­eral pub­lic de­fender for the Western District of Texas, said she wor­ries that ex­pand­ing such fast-tracked prose­cu­tions will in­evitably sweep up po­ten­tial Amer­i­can cit­i­zens.

“We have seen a real uptick in clients who have le­git­i­mate claims to cit­i­zen­ship through the birth of their mother and fa­ther or grand­par­ents, but those cases take a lot of time,” she said. “The wider you cast the net, the more chances that’s go­ing to hap­pen.”

Re­searchers at the Uni­ver­sity of Ari­zona’s Cen­ter for Latin Amer­i­can Stud­ies in­ter­viewed more than 1,100 mi­grants who had been de­ported back to seven Mex­i­can cities be­tween 2010 and 2012.

One-third had been crim­i­nally pros­e­cuted through Stream­line. Of those, only 40 per­cent said that their lawyers men­tioned ba­sic le­gal rights such as that of a fair trial. Just as many said their at­tor­neys sim­ply told them to plead guilty. Only 1 per­cent said their at­tor­neys had in­quired into their le­gal sta­tus and whether they had rights to U.S. cit­i­zen­ship.

The 9th U.S. Cir­cuit Court of Ap­peals, with ju­ris­dic­tion over Ari­zona and Cal­i­for­nia along the Mex­i­can bor­der, has opined on Op­er­a­tion Stream­line sev­eral times, hold­ing in 2013 that de­fen­dants in mass hear­ings must be asked in­di­vid­u­ally if they un­der­stand and how they plead.

Prose­cu­tors there also agreed that no more than seven de­fen­dants should be rep­re­sented by a sin­gle at­tor­ney.

In an­other rul­ing, in May, the same court ruled that de­fen­dants in mass hear­ings should not be shack­led to­gether be­fore the judge, mean­ing each de­fen­dant could now re­quire the pres­ence of a U.S. mar­shal — a tremen­dously ex­pen­sive propo­si­tion.

“This is one of the sin­gle big­gest blows to the Stream­line pro­gram,” said Billy Peard, a staff at­tor­ney in Tuc­son with the ACLU of Ari­zona. “It sig­nif­i­cantly in­creases the re­source de­mands.”

Those rul­ings by the 9th Cir­cuit, how­ever, don’t ap­ply to Texas, which falls un­der the ju­ris­dic­tion of the more con­ser­va­tive 5th Cir­cuit where the courts have not once ad­dressed such pro­ce­dural con­cerns.

What turned some U.S. at­tor­neys and judges against Op­er­a­tion Stream­line dur­ing Obama’s sec­ond term wasn’t nec­es­sar­ily due process is­sues, but its costs.

U.S. District Judge Sam Sparks, who over­sees Austin in the Western District, has called the ex­penses in­volved in prose­cut­ing all im­mi­grants for il­le­gal en­try “sim­ply mind-bog­gling,” say­ing the tax­payer cost is “nei­ther mer­i­to­ri­ous nor rea­son­able.”

Gil Ker­likowske, a former com­mis­sioner of Cus­toms and Bor­der Pro­tec­tion un­der Obama, said the caseloads in some fed­eral court­houses along the bor­der, es­pe­cially in Texas, were over­whelmed by il­le­gal im­mi­gra­tion.

The sit­u­a­tion is now likely to be­come only more acute as the Trump ad­min­is­tra­tion ramps up such prose­cu­tions.

So far, un­leash­ing im­mi­gra­tion agents in a na­tional crack­down on il­le­gal im­mi­gra­tion has been the Trump ad­min­is­tra­tion’s most vis­i­ble ini­tia­tive to date, at least in part be­cause the pres­i­dent has been able to change pol­icy with­out ac­tion by Con­gress.

Now Ses­sions’ di­rec­tives that prose­cu­tors bring more se­vere charges against il­le­gal crossers mean more mi­grants will land in the over­whelmed fed­eral courts, and the ex­pen­sive Bu­reau of Pris­ons, for longer pe­ri­ods.

If they de­cide to forgo guilty pleas in fa­vor of ask­ing for a trial, it could be dis­as­trous for the courts.

“The fed­eral courts might just grind to a halt,” said Gar­cía Hernán­dez, the Uni­ver­sity of Denver pro­fes­sor. “They are not equipped to pro­vide tri­als to any­where near the num­ber of peo­ple get­ting con­victed of im­mi­gra­tion crimes.”

But Vil­lar­real, the as­sis­tant Bor­der Pa­trol chief over Op­er­a­tion Stream­line, sur­veys the land­scape along the U.S. bor­der and sees a long over­due re­turn to tougher tac­tics.

“It is,” he said, “go­ing back to the way it used to be.”

Mark Mul­li­gan / Hous­ton Chron­i­cle

A U.S. Cus­toms and Bor­der Pro­tec­tion boat heads south on the Rio Grande at the in­ter­na­tional bor­der cross­ing be­tween Ea­gle Pass and Piedras Ne­gras.

Marie D. De Jesús / Hous­ton Chron­i­cle

More fed­eral judges along the bor­der are fol­low­ing the ac­tions of the court­house in Del Rio, shown above, and con­duct­ing mass ex­pe­dited hear­ings of those caught try­ing to en­ter the U.S. il­le­gally, re­viv­ing a pro­gram known as Op­er­a­tion Stream­line.

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