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 Americas & Beyond | April 2008 
Zero Tolerance Working, Says US Border Patrol
 Brady McCombs - Arizona Daily Star
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| | Sylvia Gonzalez, with the Direccion General de Antencion a Migrantes Internacionales, works with migrant Cesar Rivera at a repatriation camp just south of the Mariposa Port of Entry, in Nogales, Sonora, in late March. (Kelly Presnell/Arizona Daily Star) | | |
Most illegal entrants selected for prosecution under a new zero-tolerance initiative are getting little jail time, but the program still might be producing the deterrent officials desired.
The U.S. Border Patrol-led program, which started in January and prosecutes as many as 60 illegal entrants a day, is aimed at increasing the consequences for illegal Mexican border crossers who are used to being dropped off at the border after apprehension.
Border Patrol officials say it's working — they've prosecuted 2,317 illegal entrants in the Tucson Sector through March and report that illegal entries and repeat tries have decreased in a 15-mile targeted zone in the west desert area southwest of Tucson.
The federal court and criminal justice system in Southeastern Arizona have been able to keep up so far and they have been slowly ratcheting up the daily haul with a target of 100 a day by September.
The initiative, however, has pushed the U.S. marshals in Arizona to their limits, required the government to pay private attorneys and obligated the U.S. magistrates to request another judge for Tucson.
Perhaps more importantly, it remains to be seen if the program's threat of prosecution and possible jail time are any more of a deterrent than the myriad risks illegal entrants already face, including sprained ankles, blistered feet, bandits and even death.
That's especially the case considering that as many as three-fourths of the entrants are getting sentenced to time they've already served or to a few days in jail.
Critics of the program say illegal entrants have proven time and again they'll keep trying as long as their odds appear favorable and jobs await.
Hundreds of illegal entrants still cross each day in the middle of the summer even though they know the scorching desert claims the lives of crossers nearly every day, perhaps because the 237 deaths reported by county medical examiners in 2007 pale in comparison to the hundreds of thousands that likely made it across.
The 60 detainees selected daily under the initiative — called the Arizona Denial Prosecution Initiative — represent about 4 percent of the 1,600-plus average daily apprehensions made in the Tucson Sector in the past two Aprils.
Even if the program reaches its goal of 100 a day, that would still only be one-fifth of all apprehensions made daily in the slowest month of the year, December, and one-tenth of apprehensions made daily throughout the year.
"They are going to keep trying because they have illusions of the American dream," said Ramiro Quintero Chavez, of the Sonoran State Commission for the Care of Migrants.
Under the program, illegal entrants face up to 180 days in jail and a criminal conviction, a fate that used to be reserved only for repeat crossers and those with criminal records.
The agencies involved are preparing for the pending increase in prosecutions.
The marshals will have to split groups into two when they reach 70 or 80 prosecutions a day. The agency is also considering moving detention of the entrants to the Border Patrol's headquarters to alleviate overcrowding at their facilities at the Evo A. DeConcini Courthouse, said David Gonzales, a U.S. marshal in Arizona.
In the long term, the agency estimates it would take $3.5 million to make improvements to cramped facilities that are dangerous for both the prisoners and staff, Gonzales said.
U.S. District Chief Judge John M. Roll has requested an additional magistrate in anticipation of even more prosecutions in the fall,, said U.S. Magistrate Glenda Edmonds.
The U.S. District Court, which says the program has gone smoother than expected, might have to hire Spanish interpreters when the numbers increase, said Richard Weare, clerk of the U.S. District Court for Arizona.
Numbers
The Arizona Denial Prosecution Initiative is focused on one heavily-trafficked 15-mile area in an attempt to snuff out traffic there before expanding to other targeted zones throughout the 262-mile sector, the busiest on the Southwest border, said Andy Adame, Border Patrol special operations supervisor.
Any adult man or woman — including those from other countries besides Mexico — who gets caught in the zone can be selected for prosecution.
In that area, recidivism, the number of people who repeat their attempt to enter into the United States illegally more than once, dropped from 79 percent to 46 percent since the program started in January. Recidivism usually ranges from 80 percent to 92 percent elsewhere in the Tucson Sector, officials said.
The average sentence magistrates are giving is 30 days in jail, Adame said.
Each day, the entrants who have prior felony convictions and/or formal deportations, usually accounting for one-fourth to one-third of the group, sign written plea agreements and are charged with re-entry after deportation and illegal entry and sentenced to 30 to 180 days in jail.
The rest are charged with misdemeanor illegal entry and usually receive sentences ranging from time served to 10 days or less of jail time, attorneys say.
That means that even among those singled out for special prosecution, most illegal entrants are back at the border, and able to try again, within a few days.
The only difference is that they spend a few days in jail waiting for their court appearance and have a criminal record due to the formal deportation.
Adame argues it's still a deterrent because a second apprehension would put them in line for at least 30 days in jail. The government is also targeting smugglers under the initiative and giving them at least 30 days in jail, to separate them from illegal border crossers.
John Fitzpatrick, assistant chief in the Tucson Sector, stresses that the prosecution initiative is one element in a broader strategy to slow down illegal entries in the Southwest border's busiest sector.
"It's a tool, and a very good tool," Fitzpatrick said. "But, it's not a silver bullet."
The initiative is part of a four-prong strategy called Operation Arizona Denial that has brought 200 additional agents to the sector to break the smuggling cycle, he said.
Adame acknowledged the agency might want to propose stiffer sentences in the future.
"It's a new initiative, and we're just getting this off the ground. I'm sure in the future we will be discussing that with the magistrates and seeing if we can get them more time," Adame said.
Magistrate Edmonds, however, said they will continue to use their judgment.
"When we began this whole process, the judges made it clear to the Border Patrol that unless they had a written plea agreement, we were going to exercise our discretion," Edmonds said. "We don't feel bound to give them a certain amount of time."
Court
Cases are heard each weekday at 1:30 p.m. in the special proceedings room at Downtown Tucson's Evo A. DeConcini Courthouse before a U.S. magistrate.
Wearing head phones to hear the Spanish translation, the illegal entrants sit quietly with their handcuffed-hands in their laps and chains around their waist. Their feet rest at shoulder width, tied together by shackles. Their shoelaces have been removed. They wear whatever clothes they brought with them — old T-shirts, tattered jeans, worn shoes.
After the magistrate explains the charge, they are called up to stand in groups of five, with their attorneys standing behind them.
Most are represented by private, Spanish-speaking attorneys who belong to the Criminal Justice Act Panel and have signed up to defend between four to six entrants a day for $100 an hour. The Federal Public Defenders Office provides two attorneys a day.
"Each of you came into this courtroom without a criminal record," Magistrate Bernardo Velasco tells them on a recent day. "Now, you have one."
He cautions them that this will put them in line for longer sentences if they are caught illegally entering the country again. He gives those without prior convictions credit for the two-to-five days they've already served, which means they'll be dropped off in Nogales later that day.
The men hand their headphones to their attorneys, some thanking them with a handshake, and shuffle out of the courtroom as their attorneys explain a few last details. They disappear into U.S. marshals' custody.
Revolving door
The illegal entrants who receive time served are bused down to Nogales and dropped at ports of entry.
At the Mariposa port of entry in west Nogales, an aid station run binationally by the Sonoran State Commission for the Care of Migrants and Tucson-based No More Deaths and the Tucson and Green Valley Samaritan, offers the returned entrants food, water, coffee, socks, medical attention, orientation and half-priced bus fare to return to their homes.
More than anything, it allows them a chance to catch their breath and plan their next move.
Across the street from the tent, coyotes, or guides, make their sales pitches. One offers to move them through the port of entry for $2,000. Others offer to take them to Naco or Altar to get ready to try through the desert again.
As many as 800 illegal entrants move through here daily with another 200 dropped off at the Dennis DeConcini port in down-town Nogales, said Octavio Gim Nogales, the Nogales coordinator for the Sonoran State Commission for the Care of Migrants.
For many, it's a temporary setback in a journey they won't give up until they get back to their children, homes, cars and jobs in the United States.
The Border Patrol's initiative is aimed at stopping this revolving door by increasing the punishment and forcing them to think twice about trying again.
Gim said the prosecution initiative is resonating with some illegal entrants and a factor in the increasing number of people choosing to head home instead of trying again.
Through the first three months of 2008, Mexican authorities have helped 3,800 people head home after deportation. That's more than in all of 2007, he said.
"This makes them understand that it's not the same as before when you could cross and cross and cross," he said in Spanish. "It helps us make them understand that it doesn't make sense to keep trying."
The message, however, doesn't seem to have reached all the illegal border crossers yet.
Jose Ramirez Virue, an 18-year-old from Nayarit, Mexico, who was caught in March after he and a group of 10 were spotted by a helicopter pilot near Naco, had never heard of the new program. Upon hearing, he said nothing less than one year in jail time would stop him from trying again to get back to Texas where he has worked in construction before.
"One year and I won't try again," said Ramirez in Spanish.
But Elias Aguilar Garcia, 46, of Hidalgo, Mexico, who was caught in the same group, said even one trip to court would be enough to put an end to his illegal trips.
He has made enough money working in a locker room at a Chicago golf club for the past eight years to buy a house, car and send his two children to private school in Tulancingo, Hidalgo said. But, he's never brought his family to live in the United States because he still hopes he will someday be able to legalize his status. A trip to federal court would ruin that, he said.
"I hope they don't apprehend me because I wouldn't try again," Aguilar said. "I would try to get a visa instead."
Hearing about the program didn't change their plans, though. They and the rest of the group were planning to head back to Naco and try again the following day.
Jose Guadalupe Pichardo, 22, and Yasmin Hermosillo, 30, planned to make another attempt as well. The married couple lives in Mesa and had needed to get back to their jobs, apartment and cars after going home to Ciudad Obregon, Sonora, for Easter. They admitted that the risk of being put in a jail scared them but it wasn't enough to convince them to stay in Mexico.
"We have to get back," Pichardo said. "We have no choice."
Contact reporter Brady McCombs bmccombs(at)azstarnet.com. |
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