Criminal prosecution of border crossers at all-time high

2013-12-07T00:00:00Z 2013-12-07T12:50:55Z Criminal prosecution of border crossers at all-time highBy Perla Trevizo Arizona Daily Star Arizona Daily Star

After wandering the streets of Nogales, Sonora, for a week — alone, with $30 in her pocket and limited Spanish — Sandra Lopez said she did the only thing she thought would help her escape the man trying to grab her: run through the vehicle lanes of the DeConcini Port of Entry and ask for help.

Instead, the 22-year-old Amphitheater High School graduate was transferred to a detention center in Florence and charged with a felony for illegal re-entry after a deportation. Federal court records say she “knowingly and intentionally” tried to enter the U.S. without permission after she had been deported.

The criminal prosecution for immigration offenses has increased nationwide — especially along the Southwest border — in some cases surpassing prosecutions for drug offenses.

The system is out of control, said Margo Cowan, a migrant-rights activist and public defender representing Lopez in her pending asylum claim.

Lopez got out on bond last month from the Eloy Detention Center, where she spent more than two years fighting her immigration case. Cowan is appealing a recent denial of Lopez’s asylum application and asking the U.S. Attorney’s Office to reverse her felony conviction for illegal re-entry.

During fiscal year 2013, immigration prosecutions reached an all-time high nationwide, with new cases being filed against more than 97,000 defendants, shows a case-by-case analysis by the Transactional Records Access Clearinghouse, a research center at Syracuse University.

Over the last decade, the number of new cases has grown more than 300 percent, from about 20,000, the research center found.

“This is quite a new phenomenon. It has nothing to do with the individual or infraction,” Cowan said. “It’s about sending a message as a matter of policy: Don’t come north.”

Despite a recent drop in prosecutions in Arizona, the state remains among the top three for immigration-related prosecutions.

Nearly half of all criminal defendants and 97 percent of petty-offense defendants in the state’s federal courts are prosecuted for immigration violations.

Operation Streamline, plus the expanding number of U.S. Border Patrol agents, created a deluge of criminal prosecutions for illegal entry and re-entry that flooded federal courts along the Southwest border, the Syracuse research center reports.

Program started in ’05

Streamline is a fast-track program created in 2005 to deter people from crossing illegally into the United States. It has expanded to most sectors along the Southwest border, including Yuma and Tucson.

Proponents of the program, including Customs and Border Protection, point to lower recidivism rates for participants. In 2012, about 10 percent of people processed through Streamline and deported were reapprehended the same fiscal year.

When Streamline first started in Tucson, many people prosecuted through the program were first-time offenders sentenced to time served. Now, most have at least one previous deportation.

But there’s a lot more to breaking the cycle than prosecutions, said Jessica Vaughan, policy director for the Center for Immigration Studies, a nonpartisan research organization that advocates for reduced immigration to the United States.

“As long as there are employers in the U.S. willing to hire people illegally, as long as they can live here without any consequences, get driver licenses and live here as if they were legal, they are not going to get deterred to come back,” she said.

Prosecutions should be part of the equation, she said, especially for people with criminal backgrounds, but they need to be in conjunction with a lot more interior enforcement.

In Tucson, unauthorized migrants can be processed through Streamline, where up to 70 people a day are charged with the felony of illegal re-entry and a misdemeanor of illegal entry, and plead to the lesser charge — which carries a maximum sentence of six months.

Defendants can also go through a similar “flip-flop” program that involves more court appearances, or they can be prosecuted through a regular hearing and not offered the deal of pleading to a lesser charge.

Lopez is not sure what process she went through, but she was sentenced on July 28, 2011, four months after she was detained.

A bad decision

Lopez’s life changed with a bad decision she made on Sept. 1, 2010, when she agreed to mail a package for a high school friend.

He gave her $100 to go to the FedEx store on East Columbia Road, and she got to keep $14.59 in change.

The package contained 3.4 pounds of marijuana. She was initially charged with possession of marijuana for sale, a Class 3 felony, but pleaded guilty to securing the proceeds of an offense and was sentenced to three years’ probation.

As part of the agreement, she couldn’t return to the United States without authorization, and on March 9, 2011, she was deported to Nogales, Sonora.

Lopez was born in Ciudad Obregon, Sonora, but was brought to Arizona by her parents when she was 2 months old.

As soon as the bus dropped her and the other deportees at the border, she said a group of women approached her.

“Do you want to get across again?” Lopez said the women asked her. “Come on, mija. I’ll take care of you. You’ll have fun.”

They even offered her a job. It turned out to be prostitution.

“I was on my own; I didn’t know anybody,” Lopez recalls.

She slept by the train tracks and stayed as close to the U.S. border as possible. “I guess it made me feel safer,” she said.

Seven days later, Lopez said a man tried to grab her. He had a knife. She ran and didn’t look back. She gave his description to a customs officer, who took her to a holding room and said someone would come and talk to her. No one did, she said.

Customs and Border Protection said in a written statement that Lopez was arrested at the port of entry after “attempting to evade inspection.” During questioning, she “admitted she was a Mexican citizen who did not have proper documents to enter the U.S.”

“She intended to travel to Tucson, where she has lived for 20 years. At no time during the interview process did Ms. (Lopez) Fongkee indicate she needed assistance.”

Asking for asylum?

Cowan said Lopez shouldn’t have been prosecuted for illegal re-entry in the first place because she asked for help, essentially requesting asylum without saying the words.

Illegal re-entry carries a maximum penalty of 10 years in prison and/or a $250,000 fine and two to three years of probation.

Lopez signed the plea agreement and received a sentence for time served.

Cowan said she spoke to Lopez’s court-assigned defense attorney to ask that he try to get the charge dismissed because she was working on her immigration case, but he didn’t do that.

Lopez said she asked the judge for more time, but her attorney insisted that she take the plea deal.

Her detention-hearing documents say she was considered at serious risk of not making her court appearance and that she didn’t have any ties to the community. Lopez was raised in Tucson, where her family lives.

Calls and emails to the attorney, Nicholas Bischoff, were not returned.

Cases like Lopez’s aren’t being scrutinized, Cowan said. Lopez said her stepfather, a U.S. citizen, filed an application to adjust her status when she was 10, but she doesn’t know what went wrong. She also has two younger U.S.-born siblings.

“There are thousands of Sandras out there,” Cowan said.

The U.S. Attorney’s Office in Arizona didn’t comment on how it decides to prosecute people for immigration offenses or what type of oversight exists.

Because Cowan is asking the U.S. Attorney’s Office to reverse Lopez’s federal conviction and is appealing her asylum-denial claim, a spokesman declined to comment, saying by email that “any statement or information could reasonably be expected to influence the outcome of a pending or future trial.”

If the U.S. Attorney’s Office reverses Lopez’s felony conviction, Cowan said, her client can apply for the Deferred Action for Childhood Arrivals program, which gives youths brought to the United States as children an opportunity to remain in the country and apply for a renewable two-year work permit.

In order to qualify, applicants can’t be convicted of a felony, a significant misdemeanor or three or more misdemeanors. Lopez’s felony for the drug offense was reduced to a misdemeanor in October after she finished her probation period.

But she still has a previous deportation and the felony conviction for illegal re-entry.

Overall, Lopez has spent more than three years detained, the majority of that time fighting for her immigration case. She is not ready to give up.

“My family is here. I’m a Tucsonan,” she said. “This is all I know.”

Contact reporter Perla Trevizo at ptrevizo@azstarnet.com or 573-4210. On Twitter: @Perla_Trevizo

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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