Copyright © 2014 Albuquerque Journal
LAS CRUCES – Judge Robert Brack’s courtroom – a cavernous hall with high ceilings, an elevated dais and rows of dark wood pews – marks the last stop for hundreds of migrants each month before they are sent home as felons.
They come through his court at a rate of about a dozen per day, chained at the waist and wrists. He preaches a gentle sermon to each before he issues their sentence. He calls their intention to seek work in the United States “noble,” their motivation “admirable,” but he warns them again and again that “the border is closed.”
But is it true?
Illegal immigration at the Southwest border has always been cyclical, tied to the ups and downs of the U.S. economy and marked by shifting patterns in which one entry point grows hot while others cool.
While South Texas struggles with a flood of Central American migrants – many of them women and children who give themselves up to authorities, a pattern different from earlier waves of migrants who tried to evade capture – a “high consequences” approach to border enforcement over the past decade raising the stakes for would-be migrants has helped push illegal immigration to 40-year lows elsewhere on the Southwest border.
One of those consequences is felony prosecutions of undocumented immigrants caught trying to illegally enter the country more than once: In southern New Mexico, federal felony prosecutions of undocumented immigrants have climbed sharply, up 40 percent over two years through May, according to Brack.
That trend has emerged even as the number of migrants apprehended in the Border Patrol’s El Paso sector, which includes New Mexico, fell dramatically for seven years straight and then plateaued over the past two years. Illegal immigration has fallen off similarly in Arizona and California, as well. Over time, fewer people are crossing illegally but a higher percentage of those who are caught are being slammed with a felony charge, jail time and deportation.
Apprehensions of undocumented migrants in the Border Patrol’s El Paso sector, which includes New Mexico, totaled 8,656 in the first nine months of the fiscal year. That compares with just over 11,000 apprehensions in all of fiscal 2013. Both years pale in comparison to the peak of more than 122,000 migrants apprehended in the sector in 2005.
It was that year that U.S. Customs and Border Protection decided to end its longtime practice of “voluntary returns” – apprehending undocumented Mexican migrants and dropping them off on the other side of the border. The agency opted for a tougher response that included “expedited removal” without hearing or judicial review, repatriating some Mexican migrants not to border towns but to Mexico’s south and arresting on felony immigration charges those who re-enter the country.
CBP also went on a hiring spree during the past decade, roughly doubling the number of Border Patrol agents at the Southwest border between 2002 and 2013 to more than 18,000 agents, according to a Congressional Research Service report.
Felony prosecutions are part of a “package of things that CBP does to try to make sure there is a consequence to crossing illegally,” said Adam Isacson, border security expert with the Washington Office on Latin America. “They try to make it hurt a little more.”
The arrests and prosecutions became known as Operation Streamline, and the program helped push unlawful re-entry cases to 26 percent of all sentenced federal offenders in 2012, up from 2 percent in 1992, according to Pew Research – a caseload borne almost entirely by five federal district courts in border states, which sentence 74 percent of those cases. Other systems exist for undocumented immigrants apprehended in the interior.
While there is some debate about whether prosecution deters would-be crossers, observers say it has dramatically changed the border.
“Over the longer term, the odds on the Southwest border of being prosecuted have definitely gone up,” said Susan Long, a Syracuse University statistician who tracks border enforcement data. “There are a lot of resources being spent (so) there is some debate in law enforcement circles, is this really a deterrent or not?”
The U.S. Attorney’s Office in New Mexico did not respond to requests for an interview regarding rising prosecutions.
“What has been the result of these policies?” asked Jeremy Slack, who joins the University of Texas at El Paso as a visiting professor in the fall and has conducted extensive surveys of deported migrants in Mexico. “It’s gotten harder to cross, more expensive to cross, more dangerous and more organized crime involved. People are still willing to do it anyway.”
The dozen or so migrant men who shuffle into the U.S. District Court in Las Cruces every morning, Monday through Thursday, arrive for sentencing by one of two judges: Brack or Judge Kenneth Gonzales, who rank in the top three of 680 federal District Court judges nationwide for handling the largest number of criminal immigration cases, according to a Syracuse University report.
In Brack’s courtroom, each migrant is called to a podium alongside an attorney, who offers some background on the migrant’s life that Brack already knows because he has read the pre-sentence report. The attorney asks the judge to sentence “time served,” and the prosecutor often agrees. Then Brack – if the case involves nothing more than an immigration violation, no drug trafficking or criminal history – often gives the men time served, which usually amounts to the month or so they have already spent in jail and which will end with deportation.
“What you have experienced is the new border,” Brack told one Mexican man before his sentencing. “Very few people get in. It’s a different world now, and you need to understand that. The higher wages come at too high a cost.”
Whether the men will try to return may have as much to do with their personal circumstances, experts say, as their concern over spending more time in jail – should they be caught again.
Brothers Francisco and Juan Carlos Espinoza rested one summer afternoon at a shelter for migrants in Ciudad Juárez. In 2007, they made it to Chicago, via Albuquerque, and quickly found jobs in a toy factory. But ever since they returned to Mexico to see their wives and children, they haven’t made it back across the border.
Both said they have twice done time in the Doña Ana and Otero County detention centers on felony re-entry charges. They planned to make another attempt at crossing the border into New Mexico the next day.
“Necessity is driving us to try crossing again,” said Francisco. His brother described his inability to find work in his hometown of Leon, Guanajuato, other than selling ice cream from a street cart.
Surveys of some 1,200 recently deported migrants in Mexico suggest that many aren’t willing to try again in the short term but may do so in a year, according to Slack, part of the team that conducted the study, funded by the Ford Foundation.
Brack says he rarely sees migrants in his court a second or third time. Yet when he prepares to sentence men who have spent decades in the U.S., who have a wife and U.S.-born children living here, he acknowledges the temptation for those men to return is immense. But he reminds them if they end up in an American jail, “you won’t make one peso.”
“Those who say their home is in the U.S. and not in Mexico, they are much more likely to say they are going to cross again,” said Slack. “They are not deterred by anything. This system is designed to criminalize people with harsh penalties, but the irony is that it affects the people who have the most ties here.”
Border Patrol data suggest criminal prosecution does deter repeat illegal immigration to a degree, at least in the short term.
A 2013 report from the Congressional Research Service citing the data shows criminal prosecution results in lower rates of recidivism, or the number of migrants re-apprehended during the same fiscal year they were deported: about 10 percent versus 27 percent among those who were allowed to return voluntarily to their home country.
Steve Sosa, assistant federal public defender in Las Cruces, says most of his clients today made two attempts to cross the border and were charged with felony re-entry on the second try. After serving jail time, “most don’t come back,” he said.
“I tell my clients in Spanish, ‘Not even a rabbit could get across the border,’ ” he said. “In this sector, the border is closed. I’m not sure about Arizona and California and Texas, but certainly in New Mexico it is.”