Immigrants are now prosecuted instead of just sent home

By Emma Schwartz

Crossing the U.S. border illegally has long been a criminal offense. But first-time offenders have rarely found themselves behind bars for simply trying to come into this country. Instead, most have been detained briefly before being sent back home.

That process is starting to change. Responding to pressure to curb illegal immigration, law enforcement officials along the southwestern border are not just arresting more illegal migrants but are also prosecuting them in hopes that a harsher policy will stop them from coming back. "It sends a message that it's not all right to come into this country illegally," says Raymond Kondo, assistant chief deputy U.S. marshal in Tucson, Ariz.

Though a battered U.S. economy has also played a role, the crackdown, which started in Del Rio, Texas, in 2005, appears to be cutting the number of illegal migrants. Apprehensions across the Del Rio sector dropped 66 percent to 22,920 by the end of last year. Among immigrants from countries other than Mexico, the decrease was 79 percent. In Yuma, Ariz., apprehensions have dropped 72 percent since prosecutions were stepped up in December 2006.

Enforcing the law, however, is coming at a price. Critics say the increased prosecutions are overloading an already strained court system and raising concerns about immigrants' legal rights. In Del Rio, the number of prosecutions jumped fourfold since 2005 to 14,419 in 2007. Says William Fry, a public defender: "I just can't help being a little concerned that every defendant is getting as full a measure of due process as I think they should." Some critics also suggest that the crackdown may simply force migrants to cross over elsewhere.

The change has been starkest for Mexican immigrants. For years, first-time Mexican offenders have been sent straight back across the border without any court proceeding—often many times before they ever faced a criminal charge. But migrants from other Central or South American countries have been brought to immigration court simply because they couldn't walk back home. The problem was that most of these non-Mexican migrants were released pending their court dates, and most never showed up. The new procedures are, in part, an attempt to correct this double standard.

Justice in a day. Since many cases are expected to be resolved in one day, defense lawyers say they are forced to counsel dozens of clients at a time, a load that makes it hard to investigate mitigating circumstances that might allow an individual to stay in the United States. "It's very difficult to try to get someone's case resolved in one day when they've just walked across the desert," says Heather Williams, a public defender in Tucson.

Public defender Brenda Sandoval cites one of her clients, a 31-year-old single mother who has lived in the United States legally nearly all of her life as the daughter of a U.S. citizen. (She herself never actually applied for citizenship.) When she tried to return here after a visit to Mexico earlier this year—she had crossed outside a port of entry—she was arrested.

Sandoval says she was convinced her client had been wrongly charged. But the woman carried no documentation and could not even provide a phone number for her mother since her cellphone had been confiscated. The necessary birth certificates arrived the next day, and prosecutors dropped the charges. But that was not enough to set the woman free. She still faced civil proceedings in immigration court and was to be held behind bars until then, Sandoval says. Unwilling to do more jail time, she chose her only other option: returning to Mexico and leaving her two young children with her mother in the United States. She is not sure how to come back, a predicament Sandoval finds all the more unfair because "she was sitting in jail there when she should never have been in jail to begin with."

Most of the cases being prosecuted are clearer cut than that of Sandoval's client, and many immigrants plead guilty to charges of entering illegally, a misdemeanor that carries a maximum sentence of six months in jail.

Still, the program's recent expansion to other districts has further taxed resources, and the Border Patrol can't always charge everyone criminally. The U.S. Marshals Service has limited jail space, and in some places the Border Patrol has had to curb the number of prosecutions.

Meanwhile, courts are trying to reduce caseloads by hiring more attorneys and limiting the number of cases that can be heard in one day. Magistrate Judge Dennis Green, who oversees many of the cases in Del Rio, says that his docket is full. But he also says he's glad the government is taking action. "If you don't enforce the law," Green says, " nobody is going to respect it."