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 Editorials | Issues | October 2006 
Fierce Consequences
 Barbara Ferry - The New Mexican
| | Judge Martha Vazquez, chief justice of the U.S. District Court in Santa Fe, said she knows the lure of immigrating to the United States. She was born in the United States, but her father was an undocumented immigrant who was deported to Mexico. Vazquez, who spends a lot of her time sending illegal immigrants to prison, said many immigrants aren’t aware of the risks of illegal re-entry. |
José Luis Gongora-Interian, a slight man dressed in a red prison uniform and wearing handcuffs attached to a chain around his waist, sat before Judge Martha Vazquez in U.S. District Court in Santa Fe on Wednesday and apologized to the United States of America.
"I want to apologize to this country for trying to enter," the 35-year-old native of the Yucatán region of Mexico said through an interpreter. "I had the need to come back here because my family is here."
Gongora-Interian was being sentenced for illegal re-entry, a crime for which tens of thousands of immigrants are prosecuted each year. Returning to the United States after being barred from re-entry is a felony with serious penalties, and with the tightening of security on the border, federal authorities are busier than ever prosecuting it.
In 2003, U.S. attorneys across the country prosecuted 21,000 immigration cases. In 2004, that number had risen to about 38,000, according to a study by the Transactional Records Access Clearinghouse, a research organization at Syracuse University which monitors federal law-enforcement spending. In 2004, the year of the study, immigration cases made up the single largest group of federal prosecutions.
The crackdown on immigrants has burdened federal courts in border states, swamping them with re-entry cases.
In New Mexico, the number of immigration felony filings grew from 240 cases in 1997 to 1,826 in 2005, an increase of 661 percent, according to a letter Vazquez wrote to Sen. Pete Domenici. The Republican senator is calling for the creation of a new federal judgeship for the state.
Norman Cairns, an assistant U.S. attorney and spokesman for the Albuquerque division of the U.S. Attorney's Office, said about half of his office's cases are immigration-related. "And the vast majority of those are re-entry cases," Cairns said.
But Cairns said because plea bargains are offered to many defendants, those cases aren't the most time-consuming.
Cairns said most of the re-entry cases his office prosecutes involve defendants who had earlier been deported for an aggravated felony.
Deportees' criminal histories might include serious crimes such as sexual assault, burglary or drug dealing. But critics say prosecutors cast too wide a net, charging returning deportees whose criminal histories include crimes such as barroom brawls, "catcalling" and possession of small amounts of drugs.
Immigrants who have not committed a crime other than re-entering the country after a deportation order are also subject to prosecution and up to six months in prison. Cairns said his office doesn't typically prosecute such cases, though it will in cases where an immigrant has repeatedly violated an order not to return.
Gongora-Interian had made two very bad decisions in his life, his court-appointed lawyer, James Baiamonte, told Vazquez on Wednesday. In 1992, less than two weeks after arriving in the United States, he was arrested by police in Portland, Ore., with a small amount of cocaine in his wallet. Gongora-Interian also had $1,600 of cash with him-- money he told the court Wednesday that he had borrowed to repay the costs of his trip to the United States. He did not have a place to live and was sleeping in another man's Ford Tempo. In the trunk, police found two scales of the type used for weighing drugs. The money, the drugs and the scales were enough to convince a jury to convict Gongora-Interian of drug trafficking. He served eight months in jail and was then deported to Mexico.
Because his crime was classified as an aggravated felony, Gongora-Interian was effectively banished from the United States.
But he returned to Portland, along with his wife, who also is from the Yucatán. The couple had four children, including a son, José, now 12, who was born with spina bifida. Gongora-Interian testified his son is paralyzed and needs constant attention from both parents to change his catheter and lift him out of his wheelchair. The boy receives medical treatment at a children's hospital in Portland, Baiamonte said.
For 14 years, Gongora-Interian stayed out of trouble with the law, his attorney said, but last spring, he made a second mistake, one that in other circumstances would not have seemed bad. He went back to Mexico to visit his dying mother.
Gongora-Interian told the court he stayed with his mother for two weeks until she died, made funeral arrangements and then headed north again.
This time, Gongora-Interian made it only five miles into the United States before being arrested by Border Patrol agents near Columbus, N.M.
Gongora-Interian has been jailed since April. In court Wednesday, he wept as he described his wife's struggles to support the family on a part-time salary and to care for their son.
He also said he was confused by what seemed to be a rehash of his 1992 conviction. "I don't understand why I am being sentenced for something when I've already served my time in jail," he told Vazquez.
U.S. Sentencing Commission guidelines for illegal re-entry are some of the harshest in the federal system, with penalty enhancements for a defendant's prior criminal history that add years to the recommended sentence, Vazquez said outside court, in an interview.
While sentencing guidelines for other crimes include penalty enhancements, the extent to which deportees are penalized is "virtually unique" to re-entry cases, said Kari Converse, an attorney in Albuquerque who represents immigrant defendants.
In one of Converse's cases, a Mexican man deported after a domestic violence offense, which his wife later said didn't happen, was charged with illegal re-entry after he tried to come back to the United States to rejoin his wife. The minimum recommended sentence for his illegal re-entry was more than five years. That is the same amount of prison time recommended for a person convicted of criminal sexual assault of a minor, possessing a pound of cocaine or an aggravated assault with a firearm inflicting a permanent or life-threatening injury, Converse wrote in a sentencing memorandum to the court.
A spokeswoman for the U.S. Sentencing Commission did not return a telephone call Friday seeking comment.
Cairns, of the U.S. Attorney's Office, declined to comment on the appropriateness of the guidelines.
Many immigrants defendants charged with re-entry are offered a standard plea agreement in the United States, which reduces their sentence if they accept responsibility for their crime and give up their rights to appeal, Cairns said.
Gongora-Interian was offered a plea agreement, under which he would have served two years and nine months.
While the plea agreement is good deal for some defendants, Baiamonte said people like Gongora-Interian can get "pole-axed by the guidelines."
"In my mind, there are two categories of people charged in these cases," Baiamonte said in an interview. "There are your burglars and rapists who we really do want to keep out of this country. And there are guys like (Gongora-Interian)."
He said the sentencing guidelines "don't allow judges to separate the sheep from the goats."
However, Baiamonte added that a 2005 Supreme Court decision allows judges to do just that. In United States vs. Booker, the court found mandatory sentencing guidelines are unconstitutional, effectively denying defendants the right to an individualized trial. Since that decision, the guidelines are considered advisory, though Baiamonte said some judges still follow them religiously.
With Gongora-Interian, Baiamonte took a gamble. He had researched the underlying drug conviction and knew the case was weak. He had been assigned to Vazquez, whom he knew to be sympathetic and willing to listen.
He advised his client to reject the plea agreement and to plead guilty to illegal re-entry.
While Gongora-Interian might have seen himself as a man with terrible luck, on Wednesday the "planets lined up for him," his lawyer said later.
Vazquez, finding Gongora-Interian's family circumstances "exceptional and compelling," went outside the guidelines, sentencing him to the 181 days he had already served. The prosecutor, Roberto Ortega, did not object.
Gongora-Interian still faces a difficult choice: Leave his family behind or bring them with him back to Mexico, where his son will receive more limited medical care.
"It's kind of like telling him, 'We saved your life, but we had to amputate your leg' " Baiamonte said afterward.
But Vazquez warned Gongora-Interian that despite his son's illness, he must not re-enter to the United States.
"You may get caught," Vazquez said. ... "And if so, you'll be facing four, five or six years in custody. ... Please understand you're not going to be as lucky as you were today."
Contact Barbara Ferry at bferry@sfnewmexican.com.
21,000 Number of immigration cases prosecuted in the United States in 2003.
38,000 Number of immigration cases prosecuted in 2004.
661 Percentage increase in immigration cases in New Mexico from 1997 to 2005. |
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