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After the defendants in orange jumpsuits filed out of U.S. Magistrate Judge Diana Song Quiroga’s courtroom, federal marshals led in a line of men and women dressed in street clothes and shuffling in shackles.
As happens almost every morning in federal magistrate courts along the Southwest border, Song Quiroga interrupted preliminary hearings for felony defendants, most of them charged with some sort of smuggling offense, and turned her attention to the morning misdemeanor docket.
All of the 37 defendants from Mexico, Honduras, Guatemala and the Dominican Republic in the court were charged with illegally entering the U.S., a “petty offense” in federal court that carries a maximum sentence of 180 days in jail. Almost all of them had previously been detained by the Border Patrol. Many of them had enough of a criminal history that they were eligible for felony prosecution under guidelines handed down in April by Attorney General Jeff Sessions.
In a memo, Sessions directed U.S. Attorneys to expand the prosecution of immigration crimes, which already make up more than half of all federal charges nationwide. Sessions’ directive orders federal prosecutors along the southern border to work with the Department of Homeland Security to set guidelines for misdemeanor illegal-entry prosecutions.
“These guidelines should aim to accomplish the goal of deterring first-time improper entrants,” Sessions wrote.
Legislation introduced recently in Congress would expand the misdemeanor charge from those caught crossing the border to immigrants found living without permission in the interior of the country.
Sessons’ guidelines direct prosecutors to file felony charges that come with a two-year maximum prison sentence for immigrants with multiple misdemeanor convictions like those Song Quiroga was doling out in Laredo. The maximum for the felony illegal reentry charge can go up to as much as 20 years in prison for those with serious criminal histories.
Supporters of such prosecutions say increasing felony charges is part of a deterrent strategy that has resulted in record decreases in immigrants illegally crossing the border. Critics deride them as the latest escalation of an ineffective program that wastes government resources on prosecuting people who, in the past, were punished by deportation through civil immigration courts.
Officials in the Western District of Texas, the San Antonio-based judicial district that covers the border from west of Laredo to the New Mexico state line, said that almost all border-crossers face misdemeanor charges and that anyone caught in the district with a prior deportation and a previous criminal history is charged with illegal reentry.
Song Quiroga warned Jose Alberto Mascial Hernandez, a citizen of Mexico who’d been apprehended a few days earlier after crossing the Rio Grande in a boat, that he could have faced a stiffer penalty because he’d served three years in prison on a felony conviction more than a decade ago in Houston. He was one of several who had previous felony convictions, including two who’d previously been charged with illegally reentering the country.
“The government could have charged you with illegal reentry of a previously deported alien because of your felony conviction, and you’d be looking at more than a year,” she said. “Because they … gave you that break, they charged you with only a misdemeanor. The maximum is six months. That’s what I’m going to sentence you to, 180 days, but you need to understand, don’t come back.”
For the immigrants who lined up in front of Song Quiroga’s bench and spilled over into the jury box, it was the first time they appeared in court since their arrests over the previous few days. All pleaded guilty and were sentenced to between seven and 180 days in prison.
The speedy pleas and sentences are vestiges of a controversial program known as Streamline, which started more than a decade ago in Del Rio.
In 2005, Border Patrol agents in Eagle Pass, which is covered by the Del Rio court, were confronted with large numbers of immigrants from countries other than Mexico crossing the border. The process for deporting citizens of countries other than Mexico and Canada is slow, and those showing up in Eagle Pass were being released with notices to appear in immigration court.
To prevent their release prior to deportation hearings, the Border Patrol began referring almost everyone they caught in the region to the U.S. Attorney’s Office for prosecution. Soon dozens of immigrants were being lined up before magistrate judges in Del Rio and pleading guilty and being sentenced. Over the next few years, Streamline spread to other border jurisdictions, including the Houston-based Southern District of Texas that includes Laredo and the Rio Grande Valley and the San Antonio-based Western District of Texas that includes Del Rio and El Paso.
Poor record-keeping at the time by the Department of Justice makes it difficult to determine how much the numbers increased, but in 2008, prosecutors filed at least 49,000 illegal entry cases, more than any other charge in the federal court system.
Last year, more than half of all federal criminal charges filed in the country were immigration related, and almost all of those were illegal entry or reentry cases, according to Tracfed, a clearinghouse of open records information operated by Syracuse University. The Texas Western and Southern districts, two of the busiest dockets in the country, saw more immigration-related criminal cases filed last year than any other judicial districts.
Priorities by prosecutors have since shifted and the number of people entering the country illegally has fallen — between 2006 and 2012, the number of felony prosecutions of those charged with illegal reentry more than doubled while the number of people caught illegally entering the country fell by two-thirds.
Proponents of increased border security point to the decline in illegal border crossings as evidence that federal tactics that included Streamline — doubling the Border Patrol and constructing 650 miles of border fencing — were effective.
Immigration experts, however, have pointed out that the decrease in illegal crossings, which leveled off in 2014 before plummeting earlier this year, coincided with declining birthrates in Mexico and the crash of the U.S. housing market, a major employer of immigrant labor, among other factors.
The hearing in Song Quiroga’s courtroom had a sense of well-worn choreography. All of the government officials, from the Border Patrol agent assigned to prepare cases for prosecution to the assistant federal public defender who’d handled hundreds of illegal entry cases, were intimately familiar with their roles.
The defendants, mostly men and all of whom wore the same clothes — T-shirts or hoodies and blue jeans for most, an FC Barcelona soccer jersey for one — they’d crossed the river in, lined up in two rows before Song Quiroga’s bench. The rest were led into the jury box, and she asked the marshals to rearrange them so she could make eye contact with each one.
Throughout the hearing, Song Quiroga stopped to get a verbal confirmation from each defendant that they understood their rights, their pleas and the sentences she was delivering. Still, the whole ordeal was over in less than an hour.
The rushed nature of these hearings has drawn complaints from defense attorneys since Streamline’s inception in Del Rio.
“I think one of the biggest problems is, it's just really hard to get an individual assessment of each case,” said Jodi Goodwin, a Harlingen attorney who practices at the federal court in Brownsville. “And depending on how many people are there on any given day, the public defenders might not have enough time to talk with everybody sufficiently, or develop enough of a rapport to determine if people have defenses.”
If immigrants say they’re afraid of being returned to their home country, Border Patrol agents are required by law to refer them to an asylum officer. In the Streamline shuffle between different agencies and to and from the courthouse, “there are people who slip through those cracks,” Goodwin said.
Grassroots Leadership, an Austin-based advocacy group that opposes large-scale incarceration, estimated in a report last year that the jailing and prosecution of illegal entry cases has cost the U.S. government $7 billion since 2005.
“It’s clear that in both Texas border districts, improper entry and re-entry charges occupy an enormous amount of time and resources and place an unequal strain on these courts,” the authors of the report wrote.
U.S. District Judge Alia Moses, whose courthouse in Del Rio launched Streamline in 2005, noted that the Border Patrol will expend resources on immigrants caught illegally entering the country regardless of whether they’re charged criminally.
Magistrate judges in Del Rio make sure each defendant is aware of their rights and has time to speak with their attorneys, much as Moses does when she takes large numbers of felony pleas in one group hearing, the judge said.
“I take felony pleas of guilty in groups of 10 to 15 people, and the circuit courts have never had an issue with that,” she said. “I get them to answer individually. I look at them. If I see they’re not understanding, I ask them questions. We give them a chance to ask questions, to tell us what they don’t understand. So if we take care of 40 cases in an hour, hour and a half, how many hours do you want us to take? Four hours? Will that change the outcome?”
How effective Streamline is remains unclear. In a 2015 report, the Department of Homeland Security’s Office of Inspector General found that the Border Patrol only measures recidivism by fiscal year, giving a narrow view of how likely an immigrant is to try to come back to the U.S. illegally. Border Patrol data found that in 2013, the recidivism rate for those charged under Streamline was 9.26 percent, while the recidivism rate of those who were voluntarily returned to their home country was 28.61 percent. However, the OIG report noted that immigrants who returned in following years were not counted.
Victor Manjarrez, the former Border Patrol sector chief in El Paso and Tucson who’s now project director for the Center for Law & Human Behavior at the University of Texas at El Paso, said he found Streamline to be effective at deterring crossing the border in certain areas. He wondered how effective it would be if applied across the board, though.
One way Manjarrez said Border Patrol used Streamline was to target for prosecution immigrants sneaking across the border in a difficult-to-patrol region, pushing them into areas that were easier for agents to cover.
One result of Streamline is an increase in defendants who are eligible for prosecution under the illegal reentry felony statute. Anyone found in the U.S. after a previous deportation can be charged with a felony, but before Streamline, when the Border Patrol was deporting more than 1 million people to Mexico a year, the agency often relied on what are called “voluntary returns,” which aren’t technically deportations and don’t trigger the felony charge when immigrants came back to the U.S.
Once they’ve been formally deported, either through the Border Patrol’s administrative process or by an immigration judge, immigrants can be charged with illegal reentry and face years in jail. It’s a much more lengthy process, involving indictments and individual hearings for pleading and sentencing, which must happen before a district judge.
In 2005, when Streamline started, federal prosecutors filed 13,963 felony reentry charges, according to Tracfed. The number peaked at nearly 38,000 in 2014 before falling to 28,995 last year.
In practice, prosecutors near the border usually only bring felony reentry charges against those with serious criminal histories.
Under current law, illegal entry misdemeanor charges are more or less limited to immigrants caught entering the U.S. near the border. Immigrants who come to the U.S. on visas but stay after they expire make up an estimated 40 percent of the 11 million people here without permission. Those who overstay their visas can be deported but do not face criminal penalties. A piece of legislation indroduced in May by Rep. Raúl Labrador, R-Idaho, would create a misdemeanor crime for an immigrant who “knowingly is unlawfully present in the United States.” It was approved by the House Judiciary Committee May 24.
Expanding immigration prosecutions
Along with increasing the illegal entry misdemeanor prosecutions, Sessions’ memo sets out guidelines for illegal reentry felonies. It directs prosecutors to dust off a little-used felony law that allows a maximum sentence of two years in prison for immigrants already convicted of illegal entry. Those with two or more illegal entry convictions should be prosecuted under that statute, according to Session’s memo.
The more-often used illegal reentry statute also carries a maximum sentence of two years in prison that can be enhanced up to 10 years for those with a criminal history of three or more misdemeanors involving drugs or crimes against persons or a felony, and up to 20 years for those with a previous conviction of an aggravated felony. Sessions wrote that districts should consider prosecution under that statute “for each illegal reentrant.”
“Priority, however, must be given to defendants who have been convicted of an aggravated felony, have any prior criminal history indicating the defendant poses a danger to public safety, have one or more administrative or criminal immigration violations, gang membership or affiliation, or where other aggravating circumstances are present,” the memo states.
Richard Durbin, the U.S. attorney in San Antonio, said those more or less cleave to the guidelines his office uses. The Sessions memo “is not a substantial change for us,” he said.
Officials for the Southern District of Texas wouldn’t comment for this story, but Goodwin, the Harlingen attorney, said it’s not unusual for prosecutors to downgrade an illegal reentry charge to a misdemeanor. In Song Quiroga’s Laredo courtroom, several of those pleading guilty to illegal entry had previous convictions on felony illegal reentry charges.
“I think that we are already taking the cases that he says we should take,” Durbin said. “If there’s suddenly an influx and they bring us more cases, the prosecutions will go up under the new guidelines.”
Chris Cabrera, the spokesman for the union representing Border Patrol employees and an agent in the Valley, said his group supports increasing immigration prosecutions.
Jerry Robinette, the former special agent in charge of the Homeland Security Investigations branch of U.S. Immigration and Customs Enforcement in San Antonio, said smugglers sometimes learn what the threshold is that the U.S. Attorneys Office is setting for prosecution and try to stay below the number of immigrants required for prosecution.
“You have to have thresholds,” Robinette said. “I don’t think anyone likes them. You have a prosecutable case, you should be able to prosecute, and when you don’t it is frustrating ... But it’s a reality of life, unpopular as it may seem.”
Or, as Murphy, the former top federal prosecutor in San Antonio, put it: “Certainly Deptartment of Justice and Attorney General have authority to set priorties and express to the U.S. Attorneys where they should be concentrating their efforts, but I don’t think they’ll ever standardize all prosecutions within each district. and probably shouldn’t.
As she gave out sentences in her courtroom, Song Quiroga added warnings for those who didn’t have previous criminal records.
“You are going to have a record in this country,” the judge said. “And if you come back illegally, you’re going to be facing a lot more time. You’ll never get 15 days, that break, ever again.”
Jason Buch is a reporter who covers immigration issues for the Express-News.