Earlier this week, Border Patrol agents and the U.S. Attorney’s Office in New Mexico stopped criminally charging immigrants caught illegally entering the country for the first time – instead deporting them directly back to Mexico through an administrative process.
The halt to prosecutions in federal courts in New Mexico was not officially announced. The change also applies to reentry by a deported alien so long as he or she has no prior felony convictions connected to a previous illegal entry into the United States.
A longtime federal official called it “an extraordinary turn of events.”
The new procedure applies to about 90% of the arrests for illegal entry and is motivated by concerns about the coronavirus. The purpose is to reduce the number of people in courtrooms and detention centers.
Last month, more than 37,000 people were detained along the Mexican border for entering the country illegally. Their cases are handled by criminal courts and are separate from asylum cases, which are handled by immigration courts.
No numbers were available for the New Mexico-Mexico border, but the number of criminal prosecutions for illegal entry in federal courts in New Mexico dwindled sharply this week. None was scheduled for Thursday.
Asked about the change in policy Monday, the U.S. Attorney’s Office in Albuquerque released a letter from Attorney General William Barr advising prosecutors to work closely with federal judges in their districts to decrease the risk of coronavirus to anyone having business in the federal courts.
The chief U.S. district judge for the District of New Mexico, William P. Johnson, last week ordered a suspension of all criminal and civil jury trials and grand jury proceedings because of the threat posed by the virus and the difficulty in impaneling juries because of school closings and other disruptions.
President Donald Trump talked in general about changes in immigration prosecutions during a wide-ranging press conference Wednesday centered on the coronavirus and closing borders with Canada, but details remain up in the air, at least officially.
Illegal entry cases have been prosecuted since the administration of President Barack Obama and have been prosecuted under previous administrations. When cases weren’t prosecuted, there was criticism from Border Patrol agents who called the practice “catch and release.” Agents often found themselves arresting people illegally crossing the border within 24 hours of their deportation.
The Customs Border Patrol media office did not respond to an email asking for comment on how the policy would work, but in general immigrants arrested on first illegal entry are now being fingerprinted and photographed, and their identification information is put into a federal database before they are deported back to Mexico.
They also are given a card warning against returning.
Previously, they were held until a court hearing before a federal judge that generally resulted in “time served” and an order to leave the country.
Criminal cases decline
Court calendars for U.S. magistrate judges in Las Cruces show a steady decline in criminal immigration cases starting last week.
On Wednesday of this week, there were only four immigration cases on the federal magistrate docket, and all of them involved defendants who had illegally entered the country after being deported following a felony conviction.
On Monday, there were 20 immigration cases – compared with a normal Monday docket of more than 60. It is not unusual for a magistrate judge to preside over more than 90 such cases on a Monday.
There were no cases scheduled for Thursday morning.
Already backlogged immigration courts have delayed hearings on asylum cases because of the virus, leaving thousands in holding facilities and thousands more in Mexico in limbo on when their asylum claims will be heard.
There have been rising concerns over conditions in federal contract detention centers along the border for criminal defendants since the coronavirus outbreak.
The American Civil Liberties Union of New Mexico sent letters to federal, state and county prisons and jails urging officials to develop plans to deal with the virus.
“This is a very worrisome situation,” said Peter Simonson, director of ACLU-NM. “People in detention centers are highly vulnerable to outbreaks of contagious illnesses. They are housed in close quarters and are often in poor health.”
The letters urging coronavirus planning were sent to immigrant detention centers in Otero, Torrance and Cibola counties. Similar letters were sent to state prison officials and local jails around the state.
“Hygiene in jails and prisons is notoriously bad,” Simonson said. “They need to have plans in place to educate staff and inmates.”
Border Patrol moves to immediate deportations
New procedure would apply to thousands arrested for illegal first-time entry