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Zero Tolerance Lives On

And it's sapping energy from other law enforcement missions

It’s just a routine hearing in a federal court in Texas, but the courtroom is packed. Every bench is filled with defendants, squeezed in and barely able to move. When the judge walks in and they all rise, the benches creak and the chains on their wrists and ankles make a rattling din.

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They are migrants who were caught after they crossed the Rio Grande illegally, most of them only a day or two earlier. In this one hearing in the courthouse in McAllen there are 80 defendants.

Migrants in shackles remove their shoes for a security check before they enter the federal courthouse in McAllen, Texas. They will be taken to a mass hearing where they will be prosecuted for illegal entry into the United States.

Judge Juan F. Alanis swears them in and they promise to tell the truth. Then, in an exercise of wholesale justice at lightning speed, each of them is charged with the crime of illegal entry and convicted and sentenced—all before lunchtime.

These mass hearings, often with dozens of defendants, are happening regularly, sometimes twice a day, in federal courts across the southwest border, under the Trump administration’s policy known as zero tolerance.

When the policy first took effect in April, migrant parents were separated from their children. President Trump halted the separations in June after a nationwide outcry, and parents with children no longer are sent to criminal court. But for all other border crossers, zero tolerance remains fully in effect. For the first time, those migrants—including people coming to seek asylum—face criminal prosecution anywhere they cross the border.

Magda, 45, from Nicaragua (in red), walks near the Rio Grande river after crossing into the United States. A few moments later, she and other family members approached a Border Patrol agent to turn themselves in.

More than 30,000 migrants have been convicted through July. President Trump has long claimed that people who cross the border illegally are criminals. Now, thanks to zero tolerance, a growing number of them are.

The policy was initiated by a memorandum on April 6 from Attorney General Jeff Sessions to all the top federal prosecutors along the border, ordering them to file charges for the misdemeanor crime of “improper entry” against every migrant referred by the Border Patrol. Before that, going back to the Obama and George W. Bush administrations, federal prosecutors were engaged only selectively in bringing cases for these minor immigration crimes. Most illegal crossers went through deportation proceedings in the immigration system, a civil system.

Despite the furor over the family separations, Sessions has continued his vigorous defense of the policy. “Our goal is not to just prosecute more, but to deter and end illegality,” he said in a speech on Sept. 10 to newly-appointed immigration judges. “To that end we are resolutely committed.”

The prosecutions have swelled the dockets of the courts, straining the time and resources of judges, clerks, prosecutors, public defenders and U.S. marshals who would otherwise be fighting more serious borderland crimes.

Zero tolerance at the border

The memo from Attorney General Jeff Sessions asking federal prosecutors to bring misdemeanor charges against migrants crossing illegally led to an overall increase in cases filed this year, especially in south Texas.

5,000

4,452 Texas Southern

Zero Tolerance Memo

4,000

3,000

2,000

1,254 Texas Western

928 California Southern

1,000

500 Arizona

311 New Mexico

0

Jan

Feb

March

April

May

June

July

5,000

4,452 Texas Southern

Zero Tolerance

Memo

4,000

3,000

2,000

1,254 Texas Western

928 Calif. Southern

1,000

500 Arizona

311 New Mexico

0

Jan

Feb

March

April

May

June

July

5K

Zero Tolerance

Memo

Texas Southern

4,452

4K

3K

2K

Texas Western

1,254

928 CA Southern

1K

500 Arizona

311 New Mexico

0

Jan

Feb

March

April

May

June

July

Source: Transactional Records Access Clearinghouse at Syracuse University

In July, 7,445 illegal entry misdemeanor cases were prosecuted in the five federal districts along the border, 69 percent of the entire caseload there, according to government data obtained by TRAC, the Transactional Records Access Clearinghouse at Syracuse University, and analyzed by The Marshall Project. The remaining 31 percent was all the other work of the federal criminal courts along the border, including prosecuting narcotics trafficking, human smuggling, money-laundering and weapons offenses.

In the southern district of Texas, where McAllen is located and the epicenter of zero tolerance, illegal entry prosecutions in July increased 318 percent from July of last year.

After five months, it is unclear if zero tolerance is having any deterrent effect. According to Border Patrol figures, the numbers of illegal crossings by people who could be prosecuted have zig-zagged—down 29 percent in July, up 17 percent in August.

So far the vast majority of migrants prosecuted under the policy have received lenient sentences involving no jail time at all. But federal prosecutors said they are just laying the groundwork to hit those convicts with more serious felony charges, and more serious prison sentences, if they come back.

“So we’re trying to get the message out,” said Ryan Patrick, the United States Attorney, or top prosecutor, for the southern district of Texas. “That’s what we’re trying to discourage, the repeat crossing attempts.”

Migrants cross the Rio Grande river on a raft paddled by a “coyote,” a smuggler, shortly before being apprehended by the Border Patrol near McAllen in September. Under zero tolerance, any adult caught crossing illegally, except parents with children, can be sent to federal court for prosecution of the crime of illegal entry.

In McAllen, neither the Border Patrol, nor the public defenders nor even the Justice Department’s prosecutors were advised in advance by Sessions that the new policy was coming.

“I found out about that through the press,” said Miguel A. Nogueras, a supervising attorney in the federal public defenders’ office there. But in late April, federal officials told Nogueras that his office should be prepared to handle as many as 350 illegal entry cases a day by August.

“I thought, well, wishful thinking,” Nogueras said. “We’re people, and there’s just so much of resources, of people that can do that.”

To date, even with hearings crammed to capacity, the court has not done more than 200 cases a day. There are not enough hours, clerks, paralegals, marshals, busses or detention beds to handle more.

Border
Patrol Agent Carlos Ruiz apprehends Santo, 18, from Honduras, in Rincon Village, near Mission, Texas. After crossing the Rio Grande river, Santo said, he became lost in the brush for over 24 hours without food or water.
After
writing up information about Santo, Ruiz handed him over to a security guard from a transportation company to take him to a holding facility for further booking. At 18, Santo was old enough to be processed as an adult.

Before zero tolerance, most people caught crossing illegally were deported, or they could go to immigration court, which is separate from the federal courts, to fight to stay in the United States. Migrants who said they faced dangerous persecution at home could pursue a claim for asylum.

Under President George W. Bush and President Obama, border crossers sometimes were criminally charged, mainly under a program started in 2005 called Operation Streamline. It was applied in limited, high-traffic areas of the border. Many of the cases were people who returned after being formally deported, a separate federal felony.

Belmary,
18, wiped away tears as a Border Patrol agent took down information about her and a relative, Edda, 63. They were among a new stream of Nicaraguans coming to the border after recent turmoil there. "I'm scared I'll be sent back," Belmary said. "We can't live there."
A
group of migrants, including adults and children, who turned themselves in to the Border Patrol near Mission. After an outcry about family separations, parents with their children are no longer sent for criminal prosecution in federal court under zero tolerance.

In Texas, lawyers said, before this year migrants with children and asylum-seekers were generally spared from criminal court. Border Patrol agents searched local jails for undocumented people convicted of offenses like drunk driving, domestic violence or narcotics.

“Your docket would reflect people found because they were committing crimes,” Nogueras said.

“And I always thought that was appropriate.”

Migrants remove their shoelaces as a security measure after being taken into custody by the Border Patrol near Mission.

Under zero tolerance, migrants are prosecuted regardless of whether they have a criminal record or prior deportations.

“We are not going to simply turn a blind eye to people who are breaking the law by entering the country illegally,” said Patrick, the U.S. Attorney, whose vast territory includes hundreds of miles of winding river border from Brownsville to Laredo. In a telephone interview from his office in Houston, he said his prosecutors are currently trying to file charges in every case the Border Patrol brings.

Although Sessions launched zero tolerance at Justice, many of its burdens have fallen to border officials in another agency, the Department of Homeland Security, which oversees the Border Patrol.

Migrants
were given plastic bags for their belongings after they turned themselves in and were taken into custody. The Border Patrol made 37,544 apprehensions along the southwest border in August.
Marvin
Alexander, 19, from El Salvador, turns himself in, and his information is recorded by a security guard from a transportation company.

At an office in McAllen that buzzes 24 hours a day, Border Patrol agents and lawyers labor through the night churning out stacks of documents to charge dozens of migrants, who often are taken to federal court directly from frontline patrol stations.

At 6.45 a.m. each weekday, emails go out to prosecutors and federal defenders with the long rosters of defendants for court that day. At the same hour, buses with bars on the windows pull up behind the McAllen courthouse. Migrants stumble out, struggling to negotiate steps with their ankles chained and their belts and shoelaces removed.

During four days of hearings in August, everyone at the court, from the judges on down, seemed to be working under the torrent of cases to do their jobs, preserving some basics of due process.

Every public defender—there are currently 18 lawyers in the McAllen office—goes to the courthouse in the early morning to meet with the defendants before their hearing.

“When we speak to them privately, I make sure they understand that it’s a crime and that they get it,” Nogueras said. With few exceptions, the migrants were captured by the Border Patrol not long after they crossed the river. “They know it, they’re here illegally, and they have no defense,” he said.

“We don’t rush our clients,” Nogueras said. But given the numbers, most consultations last only a few minutes, just long enough to prepare people to plead guilty.

In the hearing on Aug. 16, the migrants listened to a Spanish interpreter as Judge Alanis confirmed their names one by one, apologizing to Marcial Acatitlan-Tepetitlan from Mexico for bungling the pronunciation. Addressing them as ladies and gentlemen, he asked them repeatedly if they understood the charges, their rights to a trial, and the consequences of a guilty plea, getting answers to each question.

Opening Statement

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Then he asked them one by one, “How do you plead?”

“Culpable, señor.” Guilty, sir. Eighty times.

After turning himself in to the Border Patrol, Alexander is transported to detention near McAllen. Under zero tolerance, many migrants are taken to the federal courthouse for criminal prosecution within 72 hours after they crossed the border.

The judge moved quickly to sentencing. Like the great majority of the migrants prosecuted under zero tolerance, most defendants in the hearing had no criminal record or prior deportations. Those first-time migrants all received the same sentence: time served. For most of them, that was the time elapsed since they were arrested, two days or less.

But in each hearing there were some defendants—as many as a dozen—who were not likely to be deterred from returning, even by criminal convictions. They were immigrants who had lived in the United States and had homes and families here. Some had run up small-scale criminal records, for drunk driving or minor narcotics violations.

Alejandra Hernández Vásquez, a 30-year-old Mexican, was an undocumented immigrant living in Beaumont, Texas, raising two children. With no other criminal record, she was in court for her third illegal entry in as many months. So far prosecutors had gone easy, and she had not been charged with a felony. Her face was tight with anxiety.

Another magistrate, Scott Hacker, wrestled with her case. “I could give you the maximum, and I’m sure it would not deter you from coming back to be with your kids,” he said.

He sentenced her to 60 days, warning that if she returned again she would get a harsher charge and could spend up to two years in jail. She was part of an expanding class of immigration criminals being created by the zero tolerance policy.

One impact of the criminal prosecutions has been to disrupt the quest of migrants for asylum.

Attorney General Sessions and Secretary of Homeland Security Kirstjen Nielsen have insisted that people must go to a border station if they want to apply for asylum lawfully. But the law states that migrants seeking protection can ask for asylum “whether or not at a designated port of arrival.”

Likewise, the misdemeanor conviction of hopping the border does not disqualify someone from applying. “They can still make their asylum claim at any time during the process,” Patrick confirmed.

But many migrants know little about asylum procedures and don’t understand that the criminal court is different from the immigration court where they would pursue a claim.

“They thought they were getting deported during those criminal proceedings,” said Rochelle Garza, an immigration lawyer in Brownsville who has represented migrants after criminal convictions. “They didn’t understand they were in a different system altogether.”

A 29-year-old Nicaraguan named Paula Somarriba is an asylum-seeker who became tangled in zero tolerance. She was part of a new stream of Nicaraguans who have been coming to the southwest border after the bloody suppression of recent protests against President Daniel Ortega.

Somarriba crossed the river on Aug. 14. Two days later, she was standing before Judge Alanis, pleading guilty to a crime.

“I felt so destroyed,” she said by telephone from a detention center in Laredo where she was sent after the hearing. “To see myself with handcuffs on my wrists, I felt very bad. And humiliated.”

Somarriba said she helped run a family luncheonette in a working-class neighborhood in Managua. After they offered meals to protesters, hooded militias associated with Ortega’s government sacked the restaurant, stealing food supplies and stoves, according to a notarized written account provided by a relative. The family was forced to close the business.

The high school of her sister, Jullieth, who is 17, suspended classes after students were killed by gunmen allied with Ortega. The two sisters fled.

At the border, Paula was separated from her sister by Border Patrol agents hours after they were detained. Since Paula was not a parent, the sisters were not exempted from zero tolerance separation. Jullieth, panicked, was sent to a shelter for migrant minors.

After her criminal hearing, Paula was remanded with the other migrants to immigration detention. Desperately anxious to see her sister, she kept insisting to officers that she wanted to pursue asylum. But she saw that many others thought they had no option. They agreed to be deported.

On
an early September morning, migrants, with their ankles and wrists shackled, are brought by bus to the rear entrance of the federal courthouse in McAllen.
Migrants
undergo a security check by U.S. Marshals before entering the courthouse, where they will be taken to a hearing to be prosecuted for the misdemeanor of illegal entry.

The Trump administration is pouring resources into the zero tolerance effort. In May, the Justice Department sent 35 new prosecutors to the border.

The Border Patrol has cooperated, taking agents from the front lines along the river and dispatching them to office legal work. But Border Patrol officials have chafed under the demands of a policy they did not create. To avoid clogging the system even more, as of June, the Border Patrol is still sending fewer than half of people captured along the southwest border to court for prosecution, according to TRAC. The rest go through the civil immigration system.

“The goal is 100 percent, to prosecute everyone who crosses illegally,” a Department of Homeland Security official said, speaking anonymously to discuss the policy. “But the goal and the operational reality are not always aligned.”

With a surge of illegal crossers over the summer in the Rio Grande Valley, agents here were stretched thin. “Ideally we would have every Border Patrol agent in green on the front line,” the official said.

“It’s a waste of resources,” said Efrén Olivares, an attorney at the Texas Civil Rights Project, who leads a team that has visited the zero tolerance hearings in McAllen every day since June. “These are not dangerous criminals. But now they walk away for the rest of their life with a criminal conviction. And no one is punished. No one is going to prison. There really is no point.”

A migrant in shackles steps down from a bus at the federal courthouse in McAllen.

But Patrick, the U.S. Attorney, said the misdemeanor convictions are only the first phase under a “strategic decision” by the Justice Department. On the second offense of illegal entry, it can become a felony with a penalty of up to two years in prison. A felony record makes it much more difficult, if not impossible, for a migrant to come to the United States legally, or to become a resident or a citizen.

But felony cases take longer and place even greater demands on the courts. For now, the resources are not there. But before long the federal prisons could begin to see a new surge of criminal migrants whose offense was trying to reach the United States.

For now the plan is to continue to push toward prosecution of every border crosser. “We are doing that,” Patrick said, “and we are going to continue to do that until told otherwise.