Copyright © 2016 Albuquerque Journal
LAS CRUCES – Carlos Morales had been in jail five weeks when he faced U.S. Judge Robert Brack in federal court one morning.
He was third in a line of about 20 men who would all be sentenced for a similar crime: illegal re-entry into the country following deportation.
For a decade, Brack’s docket of immigration cases has ranked among the largest in the country. He sees about a dozen immigration cases a day, three days a week, every week. When Judge Kenneth Gonzales was appointed in 2013 to the court in Las Cruces, Brack said he assumed he would see his immigration caseload reduced.
It stayed the same. Gonzales’ docket grew to nearly the size of Brack’s. Other federal judges, including from Albuquerque, began rotating into the court to help.
Criminal felony immigration cases in New Mexico federal courts have increased 80 percent in five years to 3,749 in 2015 from 2,078 cases in 2011, according to U.S. court statistics compiled by the Transactional Records Access Clearinghouse at Syracuse University.
Each of the five federal border districts handles immigration cases differently, and New Mexico takes the unusual approach of charging nearly 100 percent of re-entry cases as felonies and not allowing defendants to plea bargain down to a lesser charge.
But sentences meted out in New Mexico tend to be shorter than in other districts.
Which approach is more effective as a deterrent is still unclear; what is clear is that repeat deportees continue to fill federal court dockets.
The Las Cruces court handles the vast majority of the district’s immigration cases. Brack alone sentenced about 1,800 cases last year; Gonzales saw about 1,600 cases, mostly immigration. Visiting judges, including Judge William “Chip” Johnson from Albuquerque, picked up another several hundred.
For perspective: A federal judge elsewhere in the country might sentence 75 cases a year, Johnson said.
Nationwide but especially along the border, illegal entry and re-entry prosecutions have surged over the past 20 years thanks to a hardened stance against illegal immigration at the Southwest border by both Republican and Democrat administrations, experts say.
From fewer than 10,000 in 1997, the caseload of prosecutions related to illegal entry and re-entry swelled to more than 100,000 in 2013 before dipping to around 80,000 at the same time that illegal immigration was rapidly declining, according to the American Civil Liberties Union.
“These are the most prosecuted crimes in the entire federal judiciary by far,” said Bob Libal, executive director of Grassroots Leadership, a Texas-based nonprofit opposed to mass incarceration for nonviolent immigration crimes. “It’s astounding. We have transformed our borders into mass criminalization and imprisonment factories.”
NM an outlier
The reasons behind the surge in felony prosecutions in New Mexico are complex, according to federal judges in New Mexico, public defenders and prosecutors, Border Patrol and experts in immigration law.
Chief among them are the rising apprehensions at the New Mexico border; Border Patrol’s practice of referring more offenders for prosecution; discretion by the U.S. Attorney to prosecute nearly all re-entries as felonies under a “fast-track” program; and a sentencing approach by the federal judges in New Mexico that favors “time served” sentences when an offender has crossed the border illegally but has no criminal record or drug charges.
All of this has rendered New Mexico something of an outlier in two respects: the district’s focus on felony prosecutions for immigration offenses and shorter jail times averaging four to six weeks.
Other border districts – Texas Western, Texas Southern and, to a lesser extent, Arizona – prosecute more undocumented immigrants on misdemeanors, often under plea bargains known as “flip flops.” But the reduced charge can come with longer jail times of four to six months.
“I think we should have a uniform policy across the border,” Johnson said. “Each district has done it differently in the 14½ years that I have been a federal district judge.”
It’s not clear to what extent these approaches to punishing immigration crimes in the border districts deter migrants from crossing illegally again.
U.S. Attorney for New Mexico Damon Martinez – who sets policy for the district on whether to prosecute undocumented immigrants and under what circumstances – said felony prosecutions do deter people from coming back illegally.
“If the person comes back after receiving that felony, that ratchets up the potential for jail time or incarceration,” Martinez said. “And each time they come back, the consequences get worse. That is the deterrent effect of having that felony in place.”
A 2015 study by the U.S. Sentencing Commission of more than 18,000 illegal re-entry cases found that half of offenders had at least one child living in the United States at the time of their apprehension. More than two-thirds had relatives other than children in the U.S.
“Since there is no credible evidence of a greater payoff in terms of deterring migrants from crossing the border, one cannot say that the district is getting ‘more bang for the buck,'” said Judy Greene, who has studied immigration prosecution trends as director of Justice Strategies, a New York-based a policy research organization. “Punishment is an ineffective sanction when motivating factors such as economic survival and family unity are so overwhelming.”
‘U.S. not an option’
Morales, 37 years old from Mexico, handcuffed and hanging his head, offered Brack an apology.
“I just came to try to help my family,” he said through a translator.
“You made a mistake,” Brack said.
Then Brack directed a question to the men waiting in the back: “By a show of hands, how many of you came to work? I think it’s unanimous,” he said to the sound of chains tinkling as the men raised their hands.
“I’m a husband and father myself,” he said. “And I know that times are tough in Mexico, and I know that jobs are hard to find, wages low, so you did what your father’s generation did, your grandfather’s generation did: You looked to the United States as an answer. I can’t fault that as a husband and father, but as a judge I can’t allow conduct like that to continue if it involves breaking laws of the United States – and it does.
“The United States is simply not an option any more,” he told the men. “Our border is now as closed and as heavily guarded as it has ever been.”
Today, far fewer people are crossing the border illegally, but those who are caught are more likely to be prosecuted and jailed.
Border Patrol apprehensions at the Southwest border – an indication of overall trends in illegal immigration – fell to 331,000 in fiscal 2015 from more than 1.6 million at the high point in fiscal 2000, an 80 percent decline over 15 years. Apprehensions in the sector that includes New Mexico and West Texas were about a 10th last year of what they were in 2000: fewer than 15,000 versus more than 115,000.
Looking at New Mexico alone, the past five years have seen an uptick in illegal immigration: 11,216 apprehensions last fiscal year compared with 6,910 in fiscal 2011, as migrants more often tried their luck in the desert between Santa Teresa and the Bootheel.
A decade ago, Border Patrol would refer undocumented immigrants for prosecution only after at least 14 prior arrests. Now an undocumented immigrant may get just one “voluntary return” to their home country before facing prosecution.
Immigration offenders are prosecuted in the district where they are apprehended – hence the growing caseload in Brack and Gonzales’ courtrooms.
“The Border Patrol continues to put on pressure,” Greene said. “The fewer people they have to apprehend, the more time they have to shovel people into the court system.”
Jail not worth it
Brack, before sentencing Morales, asked one more question: “You come in with the best of intentions,” he said, “but if you end up in an American jail, are you helping your family?”
Morales answered, “No.” His attorney had told the court Morales has four dependents. It wasn’t clear whether they were in Mexico or the U.S.
“The real wall is the jail time,” said Dennis Candelaria, a public defender in Las Cruces. “For many, it’s not worth it. But if they have family here, it’s just part of the risk.”
Brack sentenced Morales to “time served,” which amounted to 37 days. He warned Morales that, if he was caught crossing illegally again, the sentence would be much longer: as much as a year in jail.
As U.S. marshals escorted Morales out of the courtroom to be deported to Ciudad Juárez, the next detained man shuffled to the podium – followed by another and another. They all had tried crossing the border at least once before.
Court records and testimony, judges and attorneys, immigration advocates and detractors suggest that some of the men – perhaps most – would try crossing the border again.