BY Olivia Solon, Julia Carrie Wong, Pamela Duncan, Margaret Katcher, Patrick Timmons, and Sam Morris
On 6 April 2018, the US attorney general, Jeff Sessions, issued a memoto federal prosecutors along the US-Mexico border directing them “to adopt immediately a zero-tolerance policy” for violations of a federal law barring “improper entry” into the country. “You are on the front lines of this battle,” Sessions wrote, as if rallying his troops against an invading army.
Over the next six weeks, the collateral damage of the Trump administration’s policy was revealed: some 2,654 children were taken from their parents or guardians in order to fulfill the mandate that they be prosecuted for a criminal misdemeanor. As of 27 September, 219 children whose parents had already been deported remained in government custody.
Zero tolerance pushed serious fraud, drugs and weapons trafficking offences out of the courtroom to make way for the flood of people whose only crime was crossing the border. Between March and June, federal prosecutions referred by Customs and Border Protection (CBP) in the five districts along the south-west border rose by 74%, from 6,368 to 11,086.
I don’t think this is really about justice anymore Cesar Pierce, defense attorney
Today the Guardian publishes analysis of documents from more than 3,500 criminal cases filed by border district federal prosecutors during a single week of the zero tolerance policy: 13-19 May.
The three-month investigation, the most comprehensive analysis to date of the experiences of thousands of migrants entering the US during that period, shows how:
- Zero tolerance churned thousands of migrants through an assembly-line justice system with copy-and-paste criminal complaints converted to hastily accepted guilty pleas.
- Just 12.8% of the criminal cases filed by federal prosecutors were the kind of serious crimes – corruption, fraud and trafficking – that citizens expect federal prosecutors to pursue.
- Sentence lengths for migrants charged with the same crimes varied dramatically depending on the state where they were arrested.
The court documents shine a spotlight on the migrants’ perilous journeys and the extreme lengths immigration enforcement goes to intercept them. They also reveal the lack of documentation created when children were torn away from families at the point of arrest – a shocking omission.
Four months after thousands were charged, only 23 individuals continue to fight their cases. The overwhelming majority have pleaded guilty, and only one case has actually gone to trial, where the defendant was found guilty.
“I don’t think this is really about justice anymore,” said Cesar Pierce, a defense attorney in Las Cruces, New Mexico, who represented 18 of the individuals in our sample.
“Justice really factors very little into it.”
The week was dominated by low-level immigration charges
Of the cases that we examined, 3,121, or 87.2%, were low-level immigration offences. Only 12.8% of cases were serious crimes like corruption, fraud, and drug or weapons trafficking, or more significant immigration offenses, such as human smuggling.
The majority of prosecutions are for first-time crossers
Of the 3,121 people charged with low-level immigration crimes, the vast majority were accused of illegal entry, a misdemeanor, while 31% were accused of illegal re-entry, a felony. The rest were caught using false immigration documents.
The long, perilous journey
José G left El Salvador for the United States on 3 May. The 43-year-old father had previously been deported from the US and was working as a bus driver, but when a gang threatened his 16-year-old son, Marco, he decided to take the risk of traveling to America again.
“It’s his age,” José said of his son. “It makes me afraid.”
It took six days for father and son to traverse Mexico by car. They were walking across the Rio Grande under a bridge linking Juárez with El Paso, about a mile from the official port of entry, when they were spotted by border patrol and arrested. Even though José had no other criminal record, his “illegal re-entry” after a previous deportation triggered a felony prosecution under zero tolerance.
‘I’ve been separated from my son for four months. I don’t understand why we are still separated’ José G
José was locked up in El Paso county jail to await his criminal case. Marco was sent to a children’s shelter.
“I’ve been separated from my son for four months,” José told the Guardian in mid-September. “I don’t understand why we are still separated.”
José is one of the 3,121 migrants in our sample who risked crossing the border to seek a better life. Just over half were Mexican nationals, closely followed by Guatemalans, Hondurans and Salvadorans. The vast majority are men.
Having made the long, perilous journey from their home countries, some cross at official ports of entry to claim asylum, while others attempt to conceal themselves in trunks of cars, trucks and freight trains.
Many are opting to trek across the border in more remote, dangerous desert and mountain regions. Others wade, raft or swim across the Rio Grande, which defines nearly the entirety of the Texas-Mexico border.
Most came from Latin America
With Mexico dominating, followed by Guatemala, Honduras and El Salvador. There were also a small number of migrants from China (three), India (nine), Chile (one), Peru (three) and Canada (one).
Number of migrants by country of origin
140080012001600+In cases where a migrant’s country of origin was not recorded, we used the country to which the individual had previously been deported. We were not able to determine country of origin for another 58 people.
Far more men were arrested than women
Court documents do not record gender so we made educated guesses based on individuals’ first names and the pronouns used in the documents.
Previous deportation is not a deterrent
Of those who have been previously deported, many attempt to come back within a year or two, with 28 attempting the crossing within a matter of days.
Arrest location: a third were caught crossing the Rio Grande
In criminal complaints detailing the river crossings, Border Patrol recorded that 33% crossed by wading, 34% by rafting and 4.6% by swimming.
Number of arrests by county
1100200300400+Extreme tactics at the border
The documents reveal the lengths to which the US Border Patrol and Immigration and Customs Enforcement (Ice) go to capture migrants.
Border Patrol uses an armory of technology including “seismic intrusion devices” (sensors that send an alert when they detect the vibrations created by footstep), giant towers packed with cameras and sensors, and mobile video surveillance systems – trucks that have extendable masts fitted with an array of cameras, radar and laser range finders, frequently referred to as “scope trucks”.
At least six migrants were arrested during “immigration inspections” of commercial passenger buses at a border patrol checkpoint in Texas – a practice that has been harshly criticized as unconstitutional by the American Civil Liberties Union, which is calling on Greyhound buses to stop allowing border patrol agents on board. All six have pleaded guilty; three received prison sentences ranging from 64 days to four months; the other three are still awaiting sentencing.
Others were arrested at motels, based on anonymous tips or pro-active surveillance. In one case, border patrol agents were surveilling the Cotton Valley Motel in Clint, Texas. After observing “two individuals wet and muddy from the knees down” enter, the agents obtained consent from the motel manager to search the room, where they found six people hiding in the bathroom.
It was a shock for everyone. You had 75 people in chains Daniela Chisolm, El Paso attorney
In some cases, migrants end up turning themselves in. On 16 May, Marin M, a migrant from Guatemala, called 911 from the desert in Otero county, New Mexico, when he and his traveling companions found they could walk no farther.
“Please come get us,” the men can be heard asking in the 911 call, which the Guardian obtained through a public records request. They ask repeatedly for water.
The Otero county sheriff’s department dispatched Border Patrol agents who transported the men to a local hospital for treatment. Marin was then taken to the Alamogordo Border Patrol station for processing, and charged with felony re-entry. He pleaded guilty and was sentenced to 57 days in federal prison.
Many of those arrested try to claim asylum because they are fleeing from gang violence, corruption, political instability and natural disasters. Those opting to seek asylum the “legal” way, by presenting themselves at a US port of entry, have been thwarted by officials who say they don’t have the capacity to process them. Border Patrol has started blocking anyone without a US passport from stepping onto US soil, leaving a backlog of asylum seekers camping on international bridges between the US and Mexico for weeks as they wait to be processed.
This crackdown on legal asylum is pushing some desperate migrants to enter illegally, say attorneys.
One Tucson-based lawyer, who did not wish to be named, described a client who crossed illegally only after being blocked from seeking asylum at a US port of entry.
“The mafia said if my client didn’t work for them they’d rape his six-year-old son,” she said. “So his only decision was to get to the US. Am I going to leave my child? No, I’m going to bring my child. Anybody would.”
Chaos in the courtrooms
As zero tolerance went into effect, federal courtrooms along the border were beset by an atmosphere of chaos and desperation, dozens of attorneys, judges and advocates told the Guardian.
“People were panicking,” recalled Carlos Quinonez, a defense attorney in El Paso, Texas. “I’ve never seen so many people.”
“It was a shock for everyone,” said Daniela Chisolm, another El Paso attorney. “You had 75 people in chains: 18-year-old girls from Guatemala, 70-year-old men from Honduras … The first day, I had 15 clients, and nine of them had children taken from them.”
Defense attorneys spoke of an “exponential” increase in the number of cases they were assigned, made all the more challenging by their clients’ anxiety after losing their children. “I spent a lot of time having to refocus my clients,” said Quinonez. “They were focused on where their kids were.”
While federal public defenders usually represent indigent defendants charged with felonies, the task of representing the thousands of misdemeanor illegal entry cases often fell to private defense attorneys like Quinonez and Chisolm, whose fees the government pays. Pierce, the Las Cruces defense attorney, said he came to consider those payments “blood money”. “We get paid to do this, but it’s not really what we signed up for,” he said. “You want to defend people in a criminal case, not because someone crossed the border looking for work.”
Maxine Dobro, a defense attorney in San Diego, was one of several defense attorneys to express disgust with what she called “a misguided decision by a misguided administration: the mass scooping up of minnows will go down as one of the darkest hours of our nation.”
“The sharks swim away and the minnows are prosecuted,” she added. Indeed, an analysis by the Transactional Records Access Clearinghouse found that between March 2018 and June 2018, federal prosecutions of non-immigration crimes fell in the five border districts, both as a percentage of total prosecutions and in absolute terms.
Some defense attorneys, including Jose Troche, an El Paso attorney who represented 11 clients in our sample, were supportive of zero tolerance. “Look, I represent them, but some of these parents need to be prosecuted for child endangerment,” Troche said. “They brought these kids through Mexico, through that pigsty, and dumped them here.” As for the children themselves: “The centers are the safest place these kids have ever been,” he said.
While defense attorneys were struggling to represent the thousands of newly criminalized migrants, federal prosecutors had challenges of their own. In at least 15 cases, the criminal complaints charging migrants with illegal entry included obvious errors suggesting that whoever had filled them out had failed to complete a prepared template.
Ananias B, a migrant from Honduras, was charged with entering the country by “wading the Rio Grande River near, #PLACE OF ENTRY#”. Angel A, from El Salvador, was charged with a crime that “took place on #DATE OF ENTRY#”. Perhaps most egregiously, seven migrants in Arizona were charged based on complaints that included the phrase, “Agents observed the Defendant #DOING WHAT? PICK ONE DELETE THE REST#”, followed by a list of apparently common behaviors.
The Guardian made numerous attempts to contact the federal prosecutors responsible for prosecuting the cases in our sample. None agreed to speak either on or off the record.
Cosme Lopez, a spokesman for the US attorney’s office in Arizona, said by email that one of the incomplete complaints had been filed with Pacer “due to an apparent error in the uploading process”. Lopez said that a “hard copy” was used in court “that included all the necessary information.” Lopez declined to provide a copy of this hard copy, and neither responded to questions regarding the uploading error nor explained how the document in Pacer came to be signed by a judge.
One federal magistrate judge who has handled zero tolerance cases and who spoke to the Guardian on condition of anonymity said that the incomplete complaints certainly represented “shoddy work”, but added that he would not “ascribe to it any sinister motives”.
The mass scooping up of minnows will go down as one of the darkest hours of our nation Maxine Dobro, defense attorney
He compared the criminal justice system to a boa constrictor that can open its mouth wider and wider to swallow increasing numbers of defendants, but cannot increase its capacity to digest those cases. “Historically, the government puts lots of resources into the law enforcement mouth, but the judicial resources to address that lump of new cases don’t get increased correspondingly,” he said.
That judge, like others who spoke with the Guardian, described a dramatic increase in misdemeanor and petty offenses in his courtroom. William P Johnson, the chief US district judge of New Mexico, shared with the Guardian a letter he had sent seeking authorization to fill a vacant magistrate judge position in which he highlighted the “drastic increase” of 1,100% in misdemeanor illegal entry cases from 2017 to 2018.
Within the pages of the more than 6,000 court documents the Guardian examined there is a striking omission: the fact that many migrants were travelling with children at the time of their arrests was recorded in only 10 of the 3,121 cases we examined.
José G is one of those 10. When he appeared in court on 14 May, five days after his apprehension by Border Patrol, the criminal complaint against him included a reference to his child. The fact that his son was in the US, and by then was being kept in a shelter for migrant children in El Paso, was not referenced in the prosecution’s motion asking a judge to deem José a flight risk and detain him without bond – a request that the judge in the case granted.
José spent two months in the El Paso county jail before the case against him was simply dropped. The prosecution’s motion for the case to be dismissed states only that “the government does not wish to prosecute at this time”. José was moved to an immigration detention center to start the separate process of immigration court. He did not pass the “credible fear” interview that would have allowed him to seek asylum.
He is yet to be reunited with Marco.
Assembly-line justice
The right to a fair trial, enshrined as the sixth amendment in the Bill of Rights, is as American an ideal as the Statue of Liberty.
But of the 3,121 migrants whose cases we examined, only one has gone to trial so far. Prosecutors dismissed the charges against 70 defendants – a few times because no translator was available or after a defense attorney filed a motion challenging the prosecution’s case, but largely without providing any explanation. Four migrants were found not competent to stand trial and were committed to mental institutions. Nine cases were terminated without any record of the outcome that we could find.
Over the summer, many migrants pleaded not guilty and remained incarcerated while awaiting trial. That number has dwindled to just 23 as of the end of September, however, as more and more holdouts change their pleas to guilty.
The vast majority – 3,014 – have now pleaded guilty.
Some judges defended the rate of guilty pleas, noting that it is difficult to mount a defense against a charge of improper entry if the defendant is found in the US. But many defense attorneys argued that it was impossible for defendants to make “knowing and voluntary” pleas when they had such limited access to legal advice or were preoccupied with worry for their children.
For those who pleaded guilty, the sentences they received ranged widely. The median time spent incarcerated for those who pleaded guilty to misdemeanor improper entry was five days, but it was significantly longer for those in California (16 days) than in Arizona (two days). Those charged with felony re-entry received a median sentence of 2.5 months (75 days). Here again the length of sentence varies by state, however, with those sentenced in the southern district of Texas receiving a median sentence of 4.3 months (130 days), compared to 1.4 months (43 days) in New Mexico.
As of 30 September, when we completed our data analysis, 266 migrants remained incarcerated, awaiting sentencing. Some were not scheduled to see a judge again until 2019.
Case outcomes: almost all pleaded guilty
Though as of 30 September, 23 continued to pursue their cases.
Most judges sentenced first-time entrants to time served
This meant that the time defendants spent incarcerated varied according to how quickly the court could process cases. For the vast majority, this resulted in less than 30 days in prison.
Those who had previously been deported received longer sentences
The longest sentences went to those with other criminal convictions.
First-time migrants in the southern district of California spent the longest time incarcerated
This is likely because California was not yet using a “fast track” system of prosecuting migrants, resulting in a longer wait for sentencing. California began using the new system, “Operation Streamline”, in July.
The southern district of Texas hands outs the longest sentences for re-entry cases
This data is incomplete, however, because almost all of the 266 migrants still awaiting sentencing were charged with felony re-entry.
Families still separated
After José’s criminal case was dismissed, he was transferred to an Ice immigration detention facility in Sierra Blanca, about 90 miles south-east of El Paso.
Immigration detention is the likely next step for most of the other 3,120 migrants once they complete their criminal sentences, though some are deported immediately after release from prison. For those who are transferred to Ice custody, they can either attempt to claim asylum, mount a case in immigration court that they should be allowed to stay, or be deported. But the paper trail ends with the criminal cases: immigration courts produce no comparable record of their proceedings.
José is allowed visitors, but only from behind a thick plate of glass. He is diminished; his weight has dropped from 180lbs to 152lbs while he has been incarcerated, he says.
“The stress is enormous,” he said, fighting back tears. He has not been allowed to see his son, and though he is allowed to speak to Marco by phone, he lacks the funds to do so. A 20-minute call to a US number from the detention facility costs about $10, with a $3 service fee.
José doesn’t have an immigration attorney and doesn’t know the status of his immigration case. “About a month ago I signed a form saying I want deportation,” he said. “But Ice hasn’t said anything to me about when I will be deported.”
Marco was eventually released to José’s brother in North Carolina, a fact that has both assuaged and increased his anxiety. The Trump administration has begun requiring family members to submit their fingerprints in order to receive family members – potentially placing them at risk of Ice themselves.
“My brother and my sister-in-law are both here without papers,” said José. “They gave up their fingerprints with their consent and in good faith to take in Marco.
“But I’m still here in detention. I haven’t seen Marco and that’s why it’s so bad here. All the time I have spent crying here about the separation,” he added, his voice trailing off.
“Nobody tells us anything. There’s no light at the end of the tunnel.”
Median sentence length for felony illegal re-entry0 days204060801001201401600 días20406080100120140160California southern60 daysArizona60 daysNew Mexico43 daysTexas western105 daysTexas southern130 days
Credits
ReportersJulia Carrie Wong, Olivia Solon, Margaret Katcher and Patrick Timmons
Reporting assistantSimon Campbell
Data AnalysisPamela Duncan
Design and developmentSam Morris
IllustrationKatherine Lam
Copy EditingCharlotte Simmonds
TranslationKatie Schlechter
Special thanks toFrancisco Navas and Chris Taylor
Methodology
One unintended consequence of zero tolerance was to create the means for greater transparency. US immigration courts are notoriously opaque, but proceedings in federal criminal courts are filed in Pacer, an electronic database. By insisting on criminalizing migrants prior to seeking to deport them, zero tolerance created a vast paper trail that sheds light on the mechanics and malfunctions of the policy.
To perform our data analysis for this article, we searched Pacer for all criminal cases filed by the US government in the five border districts during the first six weeks of zero tolerance, 7 May-25 June, the period during which family separations were taking place. The five districts are the southern district of Texas, the western district of Texas, New Mexico, Arizona, and the southern district of California.
The nearly 25,000 criminal cases filed during that period were more than we had capacity to investigate, so we decided to limit our analysis to one calendar week: 13-19 May. This resulted in a sample of 3,579 cases.
We divided that sample into two groups: those who were charged with low-level immigration offenses and everyone else. The charges that we considered low-level immigration offenses are: 8 USC § 1325; 8 USC § 1326; 9 USC § 1459; 18 USC § 1028, 1544 and 1546.
Because of the way that Pacer works, our sample includes two sets of cases: those that were originally filed during the week in question, and a smaller set of cases that were re-filed in criminal court during that week.
This distinction is the result of the way federal courts handle their workload. Low-level immigration offenses are usually filed in magistrates court where they are overseen by magistrates judges, whose job it is adjudicate minor or petty offenses, while felonies are handled in criminal court by district judges. In many cases, illegal re-entry charges are originally filed in magistrates court, then transferred to criminal court for sentencing.
We decided to keep these transfer cases in our sample because they represent a portion of the caseload that was burdening the courts overall during the week we examined.
We worked with PacerMonitor to download the criminal complaints and judgments for all of the cases in our sample, then used optical character recognition technology to convert as many of the documents as possible into a machine readable format. We then built our own database of the cases and all the information we could glean from the documents, such as demographic information about the migrants themselves, where and how they were arrested, who prosecuted them, and what the outcome of their court cases were. We are referring to migrants by their first names and last initials, and have changed the name of a minor.
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Go to the original article at the link to get the charts in their proper format.
No amount of doubletalk and false narratives by the Trump Administration will change the reality of what they are doing, its intentional cruelty, and its utter failure to deter migration. Sadly, it’s quite possible, but not necessarily inevitable, that Trump, Sessions, Miller, and the others who have formulated these travesties will escape legal judgement in the present. But, they won’t escape the judgment of history; nor will those who have enabled, or worse yet, actively supported them.
We can can diminish (and are diminishing) ourselves as a nation, but it won’t stop human migration!
PWS
10-16-18