Copyright © 2016 Albuquerque Journal
LAS CRUCES – Every day, federal prosecutors in southern New Mexico head to the copper-plated U.S. District Court to face the daily grind of criminal immigration cases that now make up a majority of federal prosecutions nationwide.
The caseload has grown so large in New Mexico – with apprehensions of unauthorized immigrants more than doubling in two years after several years of decline – that U.S. Attorney Damon Martinez in June capped the number of nonviolent border crossers his office will prosecute at 150 a month.
There are hundreds more who could be prosecuted each month but aren’t, according to law enforcement sources. Immigrant advocates question whether nonviolent offenders should be prosecuted at all.
Discretion is built into the U.S. justice system, and Martinez said he faces competing priorities across the state, including prosecuting violent crime in Albuquerque and Indian country. The limit doesn’t apply to drug mules or those with extensive criminal histories, who all get prosecuted, according to Martinez.
“The system is comprehensive,” Martinez said in a recent interview. “Although there isn’t a prosecution for everyone found here illegally, people are getting deported and there are consequences.”
The U.S. Attorney’s Office in New Mexico, which has about 75 attorneys, most of them in Albuquerque, has a stunning array of cases under its purview beyond the immigration offenses that can dominate attorney and staff time in southern New Mexico.
Just recently, it has been tasked with prosecuting cases from an operation that nabbed 104 Bernalillo County residents on firearms and narcotics trafficking charges; dozens of defendants allegedly belonging to the violent Syndicato de Nuevo Mexico prison gang; and the arsons that recently scorched nine Albuquerque businesses, which could lead to domestic terrorism charges.
“The use of our limited resources must be prioritized to address the broad range of significant criminal activity in our state that impacts the public safety of all New Mexicans,” Martinez said. “This includes the investigation and prosecution of national security, violence, drug trafficking and immigration cases focusing on violent offenders.”
The U.S. Attorney’s Office cap applies to a specific offense known as a “1326a,” illegal re-entry, without complicating factors like drug trafficking or extensive criminal histories. Those nonviolent offenders typically receive “time served” at sentencing, which in New Mexico amounts to 30 to 45 days on average, thanks to a fast-track system that moves these offenders quickly from arrest to deportation.
The lead investigative agency on illegal entry and re-entry is U.S. Customs and Border Patrol. Spokesman Ramiro Cordero confirmed that apprehensions at the New Mexico border, including immigrants who could be charged with felony illegal re-entry, are far outpacing prosecutions.
Illegal entry used to be a civil offense rather than a criminal one.
The U.S. Justice Department began ramping up criminal immigration prosecutions about a decade ago. The docket surged under the second Bush administration and again under the Obama administration.
It swelled to the point that, in fiscal 2016, criminal prosecutions for illegal entry, illegal re-entry and similar immigration violations made up 52 percent of all federal prosecutions nationwide, or nearly 70,000 cases a year, according to data compiled by the Transactional Records Access Clearinghouse at Syracuse University.
The prosecutions have swamped federal courts. The U.S. District judges in Las Cruces are among the busiest in the nation, thanks to the immigration docket.
Before the U.S. Attorney’s Office scaled back, the Las Cruces court was on track to surpass its caseload records; the new limit only puts the court back on track to meet its usual numbers this year, according to U.S. District Judge Robert Brack.
Brack sentences an average of 1,800 immigration-related cases each year. U.S. District Court Judge Kenneth Gonzales sees a similar number of cases as Brack, while judges from Albuquerque regularly cycle in to help them work through the caseload.
The dropoff debate
To what extent prosecution deters repeat border crossings is a matter of debate.
Illegal immigration, especially from Mexico, stands at a fraction of where it was a decade ago when massive borderwide prosecutions began. Experts say the sharp falloff in illegal immigration is in part a reflection of tougher border enforcement, including prosecutions.
Border Patrol apprehended more than 1 million people at the Southwest border in fiscal 2006, overwhelmingly from Mexico. Last fiscal year, apprehensions barely topped 331,000 – 44 percent of them from countries other than Mexico, including Central America.
Peter Ossorio, who served as a federal prosecutor in New Mexico from 1996 to 2004, said there are limits to whether prosecutions deter repeat offenders.
“A lot depends on why they are crossing,” he said. “If they are fleeing for their lives – and we have been having a refugee problem, not an immigration problem – you aren’t going to stop them. You cannot deter them if the pressure propelling them is too great.”
The same has been found to be true if the “pull” factors in the United States are too strong. A 2015 U.S. Sentencing Commission report found nearly 50 percent of people sentenced in fiscal 2013 for illegal re-entry had at least one child living in the United States.
Today, many unlawful border crossers do not enter the criminal immigration system at all. They include the tens of thousands of Central Americans, including families and unaccompanied minors, who are giving themselves up to Border Patrol and claiming asylum.
Those migrants enter administrative proceedings in the country’s immigration courts, where the backlog has topped half a million cases and waiting times for hearings are stretching to nearly three years in some districts.