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Sunday, July 27, 2008

Border Dilemma

By Mike Gallagher
Copyright © 2008 Albuquerque Journal
Journal Investigative Reporter
          Juan Dominguez Lopez jumped the fence between Anapra and Sunland Park last year and managed, by his own estimate, about 30 steps north on United States soil before he was arrested.
        The apprehension was one of thousands and seemingly routine. But Lopez's prosecution, conviction and potential four-year sentence could give Border Patrol agents another tool in attempting to secure the border.
        Dominguez, a 45-year-old agricultural worker, had been deported twice, most recently in 2002 following a conviction for possession of marijuana with intent to distribute. This time, he was charged in federal court with illegal re-entry by a deported alien.
        His lawyer argued that the case should be dismissed under a string of decisions from a California appeals court that said the feds couldn't prosecute in cases in which they had the intruder under constant surveillance from the time he crossed the border until his arrest.
        To prosecute someone for illegal entry, or re-entry, that entry must be voluntary.
        The reasoning of the court was that someone under constant surveillance was not free from official restraint at the time they entered the country, and therefore were not yet here illegally.
        The only remedy in that case: A free ride back to a border crossing.
        Dominguez's lawyer argued that the visual surveillance from the time Dominguez crossed to his arrest meant he was never free from official restraint and the charges should be dismissed.
        For years, Border Patrol agents and prosecutors have followed the California rule. However, they have become increasingly concerned about areas such as the one between Anapra and Sunland Park where the border fence is a few minutes brisk walk from the residential areas of Sunland Park.
        Once in the community, illegal border crossers are harder to find, and the "constant surveillance" defense could be tantamount to a get-out-of-jail free card.
        Prosecutors asked U.S. District Judge M. Christina Armijo of Albuquerque to reject the defense.
        She agreed, ruling that the 9th Circuit rule doesn't apply to new technologies the U.S. Border Patrol is using to secure the Southwest border.
        <b>A routine arrest</b>
        Dominguez was drinking that evening and doesn't recall much about the events of that night, according to court records. And it was such a routine event the agents involved didn't remember much, either.
        This much was established at a bench trial before Armijo earlier this year:
        On Sept. 17, 2007, Border Patrol Agent Juan Hernandez watched on an infrared camera while Dominguez and a companion jumped the fence between Anapra and Sunland Park.
        Hernandez was parked on Monument Mesa, where he was keeping 1.2 miles of fence line and nearby railroad tracks under surveillance, using the camera mounted on a pole in the back of a pickup. Hernandez could watch a screen in the cab.
        The camera has a range of about four miles, but the terrain is uneven in places and there are blind spots. n Dominguez enjoyed only a few minutes of freedom on U.S. soil while Hernandez directed other agents to his location. They found him moments later after a brief search.
        Erlinda Ocampo Johnson, Dominguez's attorney, challenged the indictment arguing that since Dominguez was under constant surveillance he was never free from "official restraint."
        Assistant U.S. Attorney Norman Cairns asked Armijo to reject the 9th Circuit's reasoning and the defense argument.
        "Given the increased security at the border and the availability of advanced technology, the doctrine of constant surveillance could become a major obstacle to the government's ability to prosecute the crime of illegal re-entry," Cairns wrote in a court pleading.
        Cairns also argued that the brief interruption in the agent's surveillance nullified the defense theory of constant surveillance.
        The rule has its roots in court decisions seeking to protect immigrants from situations such as being prosecuted for showing up at checkpoints and seeking entry with improper documents.
        The protection was expanded in later years to cover any situation where the immigrants coming across were constantly monitored — including one case in which the intruders jumped a fence and landed in the parking lot of a U.S. Customs Service building.
        Customs agents kept watch and called the Border Patrol.
        <b>Interpretation rejected</b>
        In finding Dominguez guilty, Armijo ruled there was a brief point when Dominguez was in a blind spot to the Border Patrol surveillance and the issue of official restraint didn't apply.
        But Armijo went further. She rejected the 9th Circuit's interpretation that equated "official restraint" with "constant surveillance."
        Armijo ruled Dominguez was under surveillance by an agent using a night vision camera three miles away from where Dominguez jumped the border fence. "Significant advances in technology have changed what it means to be under surveillance ..." Armijo wrote.
        "In my view, it does not make sense to expand the concept of 'official restraint' to cover situations where the aliens in question are not, in any sense surrounded by government agents at close range, and where technology has advanced to the point that large expanses of the border can be kept under some automated form of surveillance at all hours from a remote location several miles away that is staffed by a single agent."
        While under such surveillance, the alien is free to choose the route of travel through an open expanse of desert and evade any agents summoned to the scene.
        Such surveillance was never envisioned when the first ruling came down back in 1908, Armijo wrote.
        The 10th Circuit, which includes New Mexico, has never addressed the issue.
        If Dominguez's lawyers appeal and Armijo's ruling is upheld, it could set up a conflict between circuits that the U.S. Supreme Court would be asked to decide.