The Trump administration’s “zero tolerance” vow to pursue criminal charges against all illegal border crossers is already stumbling, with one judge cutting migrants loose without any bail payment and federal prosecutors telling Border Patrol agents that they are full up and can’t bring cases against everyone.
There have been some prosecutions — two illegal immigrants who were part of the illegal immigrant caravan who jumped the border in Texas and were nabbed by agents from the Laredo region were quickly prosecuted, agreed to plea deals and slapped with five-day jail sentences last week.
But elsewhere, agents are finding that when they apprehend illegal immigrants and turn the cases over to prosecutors, the prosecutors are not interested.
Thirteen illegal immigrants nabbed by agents in the Border Patrol’s Boulevard station in California were declined on Friday alone, said Brandon Judd, president of the National Border Patrol Council, and an agent himself. He said his fellow agents were telling him that prosecutors were picking and choosing, constrained chiefly by resources, leaving “a good number of them … being turned down” for prosecution.
“It’s a far cry from zero tolerance,” Mr. Judd told The Washington Times.
Attorney General Jeff Sessions announced the zero-tolerance policy in April, soon after the government revealed that illegal immigration across the southwestern border had soared 203 percent in March, according to year-over-year comparisons. The announcement also was made just as the illegal immigrant caravan was testing the administration’s resolve.
“To those who wish to challenge the Trump administration’s commitment to public safety, national security and the rule of law, I warn you: Illegally entering this country will not be rewarded but will instead be met with the full prosecutorial powers of the Department of Justice,” Mr. Sessions said at the time.
But in the weeks since, the numbers have only worsened: 230 percent higher so far in may than the same time last year.
Some have been prosecuted under the zero-tolerance policy, including at least 13 members of the caravan who jumped the border in recent weeks.
Two caravan members caught in Texas on May 4 were charged with illegal entry, entered guilty pleas on May 9 and agreed to five-day sentences — apparently covering the time they had already served.
In Southern California, where the caravan’s effects were more prevalent, prosecutors lodged charges against 11 migrants and were offering them time-served plea deals as well.
Illegal entry is a misdemeanor and can be punished by up to six months in jail. Illegal re-entry after a deportation is a felony and can earn up to two years in prison.
A spokesperson for Adam L. Braverman, the U.S. attorney in Southern California, declined to comment on the decision-making, citing the ongoing cases.
A Homeland Security official said the department was doing what was asked of it: apprehending and referring all illegal immigrants for prosecution.
That suggests the problem is with the Justice Department, which already faces massive backlogs in regular immigration cases, even before the criminal caseload.
The department’s headquarters in Washington declined to comment for this article.
Attorneys for the migrants have also gone quiet and have not responded to email and phone requests from The Washington Times.
But according to court documents, Eric S. Fish, the lawyer defending some of the caravan migrants in Southern California, is mounting a vigorous resistance. He is pushing for the migrants to be released without having to post any financial bond and has won that argument with at least one judge, Gonzalo P. Curiel, with whom President Trump clashed during the 2016 campaign.
The government has asked for Marbel Yaneth Ramirez-Raudales to be held on a $10,000 secured bond, but Judge Curiel instead required only a signature and an unsecured bond promise. The judge reasoned that the migrant was going into immigration custody, so there was no risk of flight.
Once in immigration custody, the migrants are expected to make claims of asylum. Jumping the border is not held against claimants in asylum cases, multiple analysts told The Washington Times.
Mr. Fish is also making a case of the government’s failure to follow through on Mr. Sessions’ zero-tolerance pledge. He said prosecutors appear to be illegally picking on the Central American caravan members.
In court filings, he pointed to several caravan members who jumped the border as part of larger groups. The caravan migrants were charged, while others in their group who weren’t part of the caravan were not, he said, signaling illegal discrimination against the Central Americans who made up the caravan.
The caravan’s couple hundred members, though, are just a small portion of the tens of thousands of illegal immigrants jumping the border each month, leaving the administration and Congress stymied.
Mr. Judd said he pushed for zero tolerance last year, in the early days of the administration. He said there was a time when it would likely have been clearly successful, during the first few months of Mr. Trump’s term, when illegal immigration fell dramatically to levels not seen since at least the early 1970s.
Analysts said Mr. Trump’s tough talk on the campaign trail had a major effect on would-be migrants and the smugglers who control the traffic through Central America and Mexico, frightening them away from making the trips. But after little substantively changed in those early months, the migrants and smugglers regained their confidence in being able to make it into the U.S., and the numbers surpassed even the last couple years of President Obama’s time in office.
“The fear of deportation and/or prosecution is what caused the historic drop, but because both Congress and the agency didn’t follow through on President Trump’s promises, illegal immigration shot back up,” Mr. Judd said. “Congress failed to pass laws that would have closed loopholes in immigration laws currently being exploited, and the agency failed to implement zero tolerance policies that would’ve ended the catch-and-release program.”
Mr. Judd said it would make sense for Mr. Trump, who reportedly lashed out at his Homeland Security secretary last week, to be frustrated.
“He’s lost all of the gains he made in 2017, and his frustration is understandable and his anger is not misplaced. He rightfully expected his surrogates to enact his vision, and he gave them the necessary tools to succeed; they, however, failed to use those tools and enact zero-tolerance policies until after all the gains were lost,” Mr. Judd said.
Several analysts said zero tolerance has worked where it has been used in the past. In Yuma, Arizona, prosecutors lodged charges against illegal immigrants under the Bush administration’s Operation Streamline. With that move, combined with new fencing and more Border Patrol agents, illegal immigration dropped 95 percent.
Immigrant rights activists complained about assembly-line justice. Dozens of illegal immigrants were pushed through the courts in the span of a couple of hours, with each of them pleading guilty and accepting deportation. The Obama administration eventually ended Operation Streamline.
The key, analysts said, was getting a decent sentence — somewhere in the range of a couple of weeks — and having the conviction on their record, so if they try again they can be charged with illegal re-entry, which is a felony and can draw even more time behind bars.
“You want it to be long enough that it stings a little bit for the alien, but not so long it becomes extremely costly for the government and starts sucking up too much detention space you need for other cases. So you have to find that balance — making the penalty stiff enough without bankrupting the agency,” said Jessica Vaughan, policy studies director at the Center for Immigration Studies.
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