The aggressive prosecution of border-crossers is straining the courts. Will 'zero tolerance' make it worse?

Wendi Garcia of Honduras and her son Oscar, 2, await an appointment for asylum at an encampment near the El Chaparral Port of Entry in Tijuana.

May 11, 2018 5 AM PT

Reporting from San Diego — The Mexican migrant, slouching in his baggy jail garb, was caught crossing the border and the federal judge in San Diego wanted an explanation.

“I’ll stay in Mexico and won’t come back again,” said Carlos Arizmendi-Dominguez, 34, a former dairy farmer who was trying to return to his family in Idaho.“I ask forgiveness.”

“I’m not here to forgive,” Magistrate Judge William V. Gallo replied.

Across the Southwest border, the crackdown on illegal crossings announced in April 2017 by U.S. Atty. Gen. Jeff Sessions is gaining traction, as immigration caseloads soar and overburdened judicial districts struggle to keep up. Detention space is reaching capacity, courthouses are scrambling to maintain security, and some judges say they have reached their limit.

On Monday, Sessions expanded the crackdown to include more first-time crossers, asylum seekers and parents who will be separated from the children to face prosecution — a move toward “zero tolerance” that will likely further overload the system.

Nowhere are the changes more noticeable than in California. In the southern federal district in San Diego, 1,275 cases were filed in the first three months of this year. Prosecutors now plan to boost criminal immigration filings to about 1,000 per month, according to district data and attorneys at the Federal Defenders of San Diego, who have been notified of increasing prosecution levels by the U.S. attorney’s office.

At that pace, prosecutions could top 9,000 for the year, triple last year’s total and the most since at least 2000, according to district data.

Prosecutions have gone up about 70% this fiscal year in Arizona, where the chief U.S. District Court judge said this week that the courts can’t take any more cases without additional judges, attorneys, interpreters, deputy marshals and courtroom space.

“If they want to increase prosecutions to a level more than [the] 75 per day that we’re doing, we need pretty much everything,” Judge Raner Collins said.

Most migrants caught at the border are still sent back to Mexico without being prosecuted. By boosting criminal filings, the Trump administration hopes to deter illegal crossings, even as border arrests remain near historic lows.

Migrants prosecuted in California typically have criminal records or, like Arizmendi-Dominguez, have been previously deported, but more first-time crossers are also being charged. Most recently, prosecutors filed criminal charges against 11 members of a caravan of migrants seeking asylum in the U.S.

Sentences for the misdemeanor violations range from 30 to 180 days, depending on the circumstances.

The surge provides fresh evidence for the Trump administration to claim it is following through on its hard-line anti-illegal immigration rhetoric. But the rapid expansion has shown that the judicial system’s shortcomings could also make it harder for the administration to achieve its “zero tolerance” goals, outlined last month by Sessions in response to what he called a border “crisis.”

The U.S. Border Patrol in San Diego still turns over only a fraction of the 120 migrants, on average, it catches daily along the 60-mile stretch it patrols.

The bottlenecks are many: Bed space is in such short supply that migrants are held in jails as far away as Santa Barbara and Arizona, defense attorneys say. There aren’t enough U.S. deputy marshals to transport defendants and provide sufficient security in courtrooms.

Agents from other federal agencies, including Immigration and Customs Enforcement and the Border Patrol, have to provide assistance. And recent court rulings have restricted courts from carrying out fast-track, mass prosecutions like one in Arizona a few years ago known as Operation Streamline, which generated protests.

Attorneys in San Diego say more of their clients are being detained outside the county, making it harder for them to provide an effective defense.

“I would guess that a great deal of those cases will be people with no prior criminal record or prior convictions, which is a sad way to spend our resources,” said Kasha Castillo, a supervisory attorney at the Federal Defenders of San Diego.

Some agencies are receiving more resources; Sessions announced this month that border districts will get 18 new immigration judges and 35 new prosecutors, including eight in California.

“The American people made very clear their desire to secure our border and prioritize the public safety and national security of our homeland,” Sessions said in a statement.

The prospect of facing criminal charges causes some migrants to think twice about crossing the border, studies have found. In border areas like Yuma, Ariz., where zero tolerance has been the policy for years, the approach has contributed to record decreases in border arrests.

Across the country, migrants who have been prosecuted for illegal crossing are less likely to attempt to cross again than those who were simply sent back, according to a study by the Migration Policy Institute.

But the deterrent effect varies depending on migrants’ motivations. Mexicans coming to the U.S. for economic reasons are more likely to be deterred by prosecution than Central Americans who are fleeing crime and political instability.

“People from Central America aren’t so easily deterred because conditions are worse there than in Mexico,” said Randy Capps, director of research for U.S. programs at the Migration Policy Institute, who co-wrote the 2017 study.

In the past two weeks the Justice Department has moved swiftly to stiffen penalties against Central Americans — by filing charges against the 11 asylum seekers from the caravan, and by threatening parents with arrest if caught crossing with their children.

“If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law,” Sessions said at a San Diego news conference Monday.

Sen. Dianne Feinstein (D-Calif.) called the crackdown on families a “cruel” tactic that betrays the country’s values on basic human rights.

“The goal of this policy is to inflict pain and suffering on people who have already put their lives at risk. We’re better than this,” Feinstein said in a statement.

For now, the majority of migrants being prosecuted in San Diego’s downtown federal courthouse are repeat offenders from Mexico. The cases generally result in plea bargains. Migrants are charged with illegally reentering the country — a felony — and plead guilty to the misdemeanor charge of improper entry.

Defendants file into court several times a week, the sketchy details of their cross-border lives elicited in brief exchanges with magistrate judges.

“I’m guilty only because I wanted to see my daughter,” said Jose Espinoza-Rivera, who said he was going to New York City.

“My only intention was to return to my children,” said Hilario Castaneda Avalos, who lived 17 years in Arizona, caring for his three grandchildren, all U.S. citizens.

When a 56-year-old man with eight previous deportations showed up in court one morning in March, Magistrate Judge Mitchell D. Dembin greeted him warmly; he had seen him before in his courtroom.

“Your persistence in coming back is commendable in one respect, but it shows a lack of respect of U.S. laws,” Dembin said.

Defendants wear jail-issued grays but are not shackled. A ruling last year by the 9th Circuit Court of Appeals barred the practice, saying defendants shouldn’t be required to “stand before a court in chains without having been convicted.”

The ruling has constrained caseloads because security guidelines require at least one U.S. deputy marshal to guard each unshackled defendant in the courtroom. When defendants were shackled, groups of up to 12 could be processed at a time in each courtroom.

The hearings move quickly, with the key decision-making centered on how long the sentence will be. Judges usually follow prosecutors’ recommendations, but not always.

Arizmendi-Dominguez, the former dairy farmer from Idaho, said through his attorney that since his last deportation he had spent six years working as a farm laborer in corn and bean fields in Mexico, and that he attempted to return because he longed to see his family, including his father, a U.S. citizen.

Prosecutors recommended a 60-day sentence. Gallo, the judge, sentenced him to 75 days, saying a tougher sentence might “get his attention.”

“I hope you can make a life for yourself in Mexico and I hope it’s a prosperous life, but you can’t keep coming back to the U.S.,” Gallo said. “The penalties are only going to get worse.”

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