CRIMINALIZING MIGRATION:
EXCESSIVE PROSECUTION AND PUNISHMENT
How to ask questions
Please submit questions in
writing.
Substantive questions will be
addressed during the Q&A
session after all the panelists’
presentations.
Follow up
A recording will be made available after the talk.
For more information, please contact Samantha Reiser,
Associate at the US Program at Human Rights Watch, at
reisers@hrw.org.
Panelists
Grace Meng, mengg@hrw.org
US Researcher
Human Rights Watch
Donna Coltharp, donna_coltharp@fd.org
Deputy Public Defender
Western District of Texas
Dan Kesselbrenner, dan@nipnlg.org
Executive Director
National Immigration Project of the National Lawyers
Guild
Claudia Valenzuela, cvalenzuela@heartlandalliance.org
Associate Director of Litigation
National Immigrant Justice Center
Bob Libal, blibal@grassrootsleadership.org
Executive Director
Grassroots Leadership
Poll Question #1
I am interested in this issue because I am a
(a) Criminal defense attorney
(b) Immigration attorney
(c) Not an attorney, but an advocate
(d) None of the above
Turning Migrants into Criminals: The Harmful
Impact of US Border Prosecutions (May 2013)
with video and Q&A
http://www.hrw.org/news/2013/05/22/usprosecuting-migrants-hurting-families
Relevant Statutes
Misdemeanor illegal entry:
8 USC Section 1325
Felony illegal reentry (after
deportation):
8 USC Section 1326
Immigration cases make up over 40% of all federal criminal
cases.
US Attorneys’ Annual Statistical Report, FY 2012:
http://www.justice.gov/usao/reading_room/reports/asr2012/12statrpt.pdf
Changes in Prosecution Policies
1988 Anti-Drug Abuse Act increased maximum penalty for illegal
reentry from 2 years to 15 years. (Maximum is now 20 years.)
Senator Lawton Chiles: to target alien
drug traffickers, such as a drug kingpin
wanted for 50 murders
Julie Myers, former assistant secretary of ICE:
“These are the worst of the worst.”
Assembly-Line Justice
Artist’s rendering of Operation Streamline in Tucson, Arizona, on May 6,
2013. © Maggie Keane for Human Rights Watch
Fast-Track Plea Agreements
From April 2013 Fast-Track plea agreement
offered by the US Attorney’s office in Phoenix
Looking at just illegal reentry felony convictions:
More HRW Data Visualizations
All of them are available here:
http://www.hrw.org/node/115758
UN Special Rapporteur on the human
rights of migrants:
“[I]rregular entry or stay should never be considered
criminal offenses: they are not per se crimes against
persons, property, or national security.”
Defendants
Rosa Emma Manriquez, 62-year-old grandmother, with her US citizen grandchild on the left, and with
her US citizen daughter on the right. After over 40 years of residence in the US, Rosa has two illegal
entry convictions and is barred from returning to the US. © Private
• Migrant workers
• Asylum-seekers
• Long-term US residents trying to return to US families
Norma Pulcher, Rosa’s daughter:
“Never, never in her life had she been in one of these
places, the Christian lady in federal prison...
It doesn’t matter how much pain and suffering her children
and grandchildren are going through, it didn’t touch their
hearts. They didn’t take a minute to look at her situation …
[to ask] why are we separating her from her family?”
Judge Robert Brack, Las Cruces, New
Mexico:
“For ten years now, I’ve been presiding over a process that
destroys families every day and several times each day.”
Deportations are at a record-high.
Poll Question #2
Which federal agency refers the most cases for federal
criminal prosecution?
(a) Federal Bureau of Investigations (FBI)
(b) Arms, Tobacco, Firearms (ATF)
(c) Drug Enforcement Administration (DEA)
(d) Department of Homeland Security (DHS)
Answer:
(d) The Department of Homeland Security
http://trac.syr.edu/tracreports/bulletins/overall/monthlyjul13/f
il/
In 2012. . . .
• Immigration was the largest category of federal
offenses—for the 4th year in a row;
• More than 83 percent of these offenses were entry and
reentry crimes.
• Non-citizens made up more than 46 percent of all
federal defendants.
In FY 2012, defendants in five federal divisions made up more than 37
percent of the total number of federal defendants. Those divisions were
California Southern, Arizona, New Mexico, Texas Western, and Texas
Southern:
Prosecutions continue to increase
Numbers in the Western District
of Texas
• January 2, 2012, to December 31, 2012: 6,788 new
entry or reentry cases.
• 3,782 new entry cases.
• 3,006 new reentry cases.
• Entry or reentry cases per
trial attorney: ~161
Expected per-attorney immigration
workload for 2013
(due to sequester cuts): 170
• FY 12: Entry/reentry cases required
125,120 work hours, or were 55.27 percent of the
WDTX’s
workload.
Cost in Dollars
• FY 12: The average entry/reentry case: $831
• FY 12: Total costs for entry/reentry cases:
$2,542,457.
**These are conservative numbers
Factors that can affect the cost of
defending a reentry case
• Language barriers
• Travel
• The complexity of laws determining derivative
citizenship
• This may require:
• Extensive document research by investigators
• Extensive travel and witness interviews
• In some cases, immigration “experts”
U.S. Sentencing Guidelines
Why Illegal Reentry
Sentences Can Be So High
Some Perspective
Aggravated Assault with a Gun,
Causing Permanent or LifeThreatening Injury
Illegal Reentry after a single
prior felony drug-trafficking
offense
• Base offense level: 14
• Base offense level: 8
• Use of a firearm: + 5
• Causing permanent or
life-threatening injury: +
7
______________
Total increase: 12 levels
• Prior drug offense: + 16
________________
Total increase: 16 levels
Sentencing Discretion
• While courts do not have to follow the guidelines,
they generally do so in immigration cases.
• For example, between Oct. 1, 2012 and June 30,
2013, courts “varied” below the guideline range—
•
•
•
•
•
In 40.8 percent of child pornography cases
In 27.6 percent of kidnaping cases
In 40 percent of antitrust cases
In 20 percent of drug-trafficking cases, BUT
In only 7.2 percent of immigration cases
The cost of incarcerating
immigration defendants
In FY 2012, the average annual cost to incarcerate
one person in federal prison was $29,027.
Due Process concerns
• Time and manpower resources
due to sheer number of cases
and increased border
enforcement.
• Reduced time and manpower
resources due to sequestration
and budget cuts.
• Results:
• Difficulty investigating legitimate
defenses
• Difficulty visiting clients and
fulfilling Sixth Amendment
obligations
• Plea and sentencing hearings that
involve multiple defendants with
little individual treatment.
Former Supervisory Assistant Federal
Public Defender Elizabeth Rogers
AlJazeera
Poll Question #3
True or false: Unlawful presence in the United States is a
federal crime.
(a) True
(b) False
Answer:
(b) False
Relationship Between Federal
Criminal and Immigration Courts

Crime or crime + sentence can result in
an “aggravated felony,” which means
permanent exile from the U.S., for even
long term lawful permanent residents
and refugees.
AG Holder’s Directive:
 Recognizes that mandatory minimum
sentences lead to unsustainably high
rates of incarceration that are:
wasteful and ineffective, exacerbate
poverty, cause insecurity for families
and weaken communities
 take away discretion from sentencing
judges.

Immigration
 Immigration judges have little or no
discretion when faced with the ever
increasing number of crimes that
constitute “aggravated felonies,” which
are neither aggravated nor felonies.
Proposed Laws
 Unfortunately S. 744 and H.R. 2278 (Safe
Act) do not learn lessons from the
criminal justice system to temper the
generally automatic nature of immigration
consequences of criminal convictions,
which funnel hundreds of thousands of
immigrants through the detention and
deportation system each year.
H.R. 2278
 Has not passed House, but has passed
House Judiciary Committee,
 In addition to harm to due process and
expanding grounds of deportability, bill
would:


Make unlawful presence a federal offense
Make unlawful presence after getting
voluntary departure an aggravated felony
Amendment: Making Unlawful
Presence a Federal Crime
 An amendment adopted by the Judiciary
Committee that made unlawful presence
a federal crime received little attention.
 Under language approved by
Committee, being in the United States
without proper documents would
become a federal crime for the first time
in U.S. history.
Impact 2
 Under SAFE Act, a person who gets
voluntary departure from a judge and
departs during the period of voluntary
departure has not done anything wrong
and can get status in the future. Under
Safe Act, as adopted by Committee, a
person who gets voluntary departure and
comes back into US, would have an
aggravated felony!
H.R. 2278 (continued)
 Add additional overlapping offenses,
including those involving false Social
Security Numbers and identity
documents
 Increased list of deportable offenses and
criminal bars to getting legal status
HR 2278
Undercuts Padilla v. Kentucky
 A conviction vacated because it was
constitutionally invalid can remain a basis
for deportation.
 This would eliminate the rule that
convictions vacated based on
constitutional or legal error will no longer
have immigration effect.
S. 744
 Funds and expands border militarization
policies that devastate border
communities and violate human rights.
 E.g. fully funds Operation Streamline
described earlier that requires the
federal prosecution of undocumented
immigrants
Changes to illegal entry and
re-entry provisions
 Imposes one-year prison sentence for
illegal entry, instead of 6 months;
 Imposes 3 years in prison for every
subsequent illegal entry, instead of 2
years;
 Increases enhancements for illegal reentry after prior criminal history
New Ground for Suspected
Gang Members
 Law is overbroad and will be retroactive
 Challenging such a classification will be
difficult
 Will exacerbate existing problems of
misidentification, increase profiling, and
target children and youth, many of whom
are the victims of crime and human
trafficking.
Other Enforcement
 Creates harsh new deportation ground
for DUIs including an aggravated felony
 Creates three new federal crimes related
to border, which punish people for
avoiding border patrol and circumventing
equipment.
 These crimes carry stiff sentences
S. 744’s expanded border
enforcement
 Expands border patrol (almost doubles)
 Requires completion of fencing
 Makes the Southern Border one of the
most militarized regions in the world
 Creates a $3.2 billion high-tech border
surveillance plan including drones, which
will undermine public safety
Impact of S.744 Border
Provisions
 Increases likelihood of civil and human
rights enforcement violations
 Provides no meaningful accountability
mechanism
 WASTES MONEY
Poll Question #4
What percentage of deportations occur after a hearing
before an immigration judge?
(a) More than 90 percent
(b) About 75 percent
(c) Less than 50 percent
(d) 10 percent
Answer:
(c) Less than 50 percent
Migration Policy Institute, Immigration Enforcement in the
United States: The Rise of a Formidable Machinery (2013)
http://www.migrationpolicy.org/news/2013_1_07.php
Connect with NIJC:
E-Newsletter & Action Alerts: www.immigrantjustice.org/action
Twitter: twitter.com/nijc
Facebook: http://www.facebook.com/immigrantjustice
www.immigrantjustice.org
Unprecedented Apprehension,
Prosecution & Detention
of Non-Citizens
The numbers:
 429,247 people passed through
Department of Homeland Security custody
(FY2011)
 409,849 deportations (FY2012)
 104,051 cases completed for detained
individuals by the immigration courts (FY
2012)
Mandatory Detention
 Use of remote detention facilities
 Inadequate access to counsel
(including phone & law library access)
 Difficulties in obtaining evidence to
adequately present case
 Indefinite nature of detention
 Conditions: segregation, medical care,
recreation
55
Right to a hearing?
Maybe.
 No right to court-appointed counsel
 A majority of individuals in DHS
custody appear pro se
 In absentia removal
 “Request” for a stipulated removal order
Dissecting the stipulated
removal process




Entails waiver of rights, including a
hearing before an immigration judge
Documents prepared, explained and
executed by DHS enforcement officer
Later, DHS prosecutor (Office of Chief
Counsel) “concurs” in request by noncitizen
Immigration judge approves the “request”
and enters removal order in the absence
of the parties
57
No right to a hearing:
Summary removal
procedures
•
Currently account for the majority of
removals (FY2011)
Deportation without a hearing:
•




Expedited removal (at border or point of
entry)(account for 31% of removals FY2011)
Reinstatement of removal (typically
precedes an illegal reentry
prosecution)(currently account for 33% of
removals FY2011)
Visa Waiver Program
INA § 238 administrative removal order (no
lawful status + convicted of an aggravated
felony = automatic removal)
Summary removal
process

Summary removal procedures are
carried out by DHS enforcement officers
 Immigration & Customs Enforcement
(ICE)
 Customs & Border Protection (CBP)

Often, no review of the officer’s decision
by a judge; limited review at the federal
courts of appeals

Strict timelines to appeal

Complex legal findings made by
non-lawyers
Lack of accountability & oversight
lead to due process & human rights
violations
•
FOIA study regarding ICE and CBP’s
use of stipulated removal orders:
http://www.stanford.edu/group/irc/Deporta
tion_Without_Due_Process_2011.pdf
See also, U.S. v. Ramos, 623 F.3d 672
(9th Cir. 2010); Gabriela’s story (below)
•
Recent Office of Inspector General
(OIG) report on excessive use of
force by CBP:
http://www.oig.dhs.gov/assets/Mgmt/2013
/OIG_13-114_Sep13.pdf; Antonio’s story
(below)
Unfettered authority:
DHS Enforcement Officers
The result?
DHS enforcement officers
serve as police, prosecutor,
judge and jury in
determining a non-citizen’s
fate.
Kicking the Due Process
Can Down the Road
In light of the lack of appointed
counsel, combined with an area
of law constantly in flux, and
streamlined removal
proceedings in the immigration
context, federal defense
attorneys may be the first time
many non-citizens have access
to due process.
Case Study 1: Antonio
In Absentia Removal
Order
 Long-time LPR, travels to Mexico while in
removal proceedings to see sick son
 Denied entry by CBP upon return
 Ordered removed in absentia
 Re-enters unlawfully
 Removal proceedings re-opened
 Successfully defends against illegal re-entry
case (WDTX)
Case Study 2: Gabriela
Stipulated Removal Order
 Brought to US when 9 months old; LPR at age
11
 Married U.S.C., 4 U.S.C. children
 2003 Possession of methamphetamine
conviction
 Unaware that the issue in her case is pending at
the court of appeals and Supreme Court
 Detained, indigent & pro se, “stipulates” to
removal
 5 months later, court of appeals rules offense is
not aggravated felony, Supreme Court later
agrees
 Re-entered: reinstatement + illegal reentry
prosecution (WDTX)
Gabriela’s Family
Sources
 Department of Homeland Security (DHS) FY 2012
Removal Statistics: http://www.ice.gov/removalstatistics/
 DHS 2011 Yearbook of Immigration Statistics
http://www.dhs.gov/yearbook-immigrationstatistics
 Executive Office for Immigration Review (EOIR)
FY 2012 Statistical Yearbook:
http://www.justice.gov/eoir/statspub/fy12syb.pdf
 Transactional Records Access Clearinghouse
(TRAC): http://trac.syr.edu/
 National Immigration Forum, “The Math of
Immigration Detention: Runaway Costs for
Immigration Detention Do Not Add Up to Sensible
Policies”
http://www.immigrationforum.org/images/uploads/
mathofimmigrationdetention.pdf
Poll Question #5
What percentage of federal prisoners in 2010 were serving
time for a violent offense?
(a) 50 percent
(b) 25 percent
(c) 12 percent
(d) 6 percent
Answer:
(d) 6 percent
Congressional Research Service, The Federal Prison
Population Buildup: Overview, Policy Changes, Issues, and
Options (2013)
http://www.fas.org/sgp/crs/misc/R42937.pdf
“Operation Streamline:
Costs & Consequences”
Released September 2012
More information: blibal@grassrootsleadership.org
WWW.GRASSROOTSLEADERSHIP.ORG/OPERATIONSTREAMLINE
Criminalizing Migration: Costs
and Consequences – Prison
Growth
Migrants criminally prosecuted are
held by of one of two agencies:
- US Marshals for pre-trial detention
& short-term sentences
- Bureau of Prisons “Criminal Alien
Requirement” facilities for longer
sentences
Criminalizing Migration: Costs
and Consequences – Prison
Demographics
• Immigration crimes are highest
prosecuted offenses in the country.
• Over the past decade, felony immigration
crimes led to an 87% increase in Latinos
sent to prison.
• Latinos now over 50% of individuals
sentenced to federal prison (16% of U.S.
pop.)
Criminalizing Migration: Costs
and Consequences – Swelling
Costs
• The federal government now
commits over $1.02 billion per year
towards the criminal incarceration of
migrants (2011 figures).
• Since 2005, the federal government
has committed more than $6.5 billion
towards incarcerating immigrants for
unauthorized entry and re-entry
Criminalizing Migration: Costs
and Consequences – Swelling
Costs
Criminalizing Migration: Costs
and Consequences – Private
Prisons
• Private prison corporations like
Corrections Corporation of America,
GEO Group, and Management and
Training Corporation are big winners in
migrant prosecutions
Criminalizing Migration: Costs
and Consequences – Private
Prisons
Criminalizing Migration: Costs
and Consequences – Private
Prisons
Annual Revenues Provided by the Federal
Government
$1,600,000,000
$1,400,000,000
$1,200,000,000
$1,000,000,000
$800,000,000
CCA
$600,000,000
The GEO Group
$400,000,000
$200,000,000
$0
Criminalizing Migration: Costs and
Consequences – Private Prison
Lobbying
Criminalizing Migration: Costs and
Consequences – Private Prisons
“The main driver for the growth of new
beds at the federal level continues to be
the detention and incarceration of
criminal aliens.”
-George Zoley, Chairman, Founder and
CEO of GEO Group, Inc.
Criminalizing Migration: Costs
and Consequences – Facility
Conditions
Criminal Alien Requirement-contract
BOP facilities:
- Privately-operated under long-term
contracts with occupancy guarantees
- Safety concerns with deadly
consequences
Advocacy Opportunities
• Short-term
• Join Federal Private Prison Working Group
efforts
• Advocate BOP cancel new CAR-contract
solicitations
• Contact House over-criminalization task
force to address immigration prosecutions
• Long-term
• De-prioritization of immigration
prosecutions
To sum up:
• Illegal entry and reentry cases have skyrocketed.
• These prosecutions impact basic human rights.
• These cases are overwhelming the federal courts, the
federal defenders, and many aspects of the federal
criminal justice system.
• Proposed immigration reform bills call for increased
criminal prosecutions of immigrants.
• These prosecutions exacerbate lack of due process in the
immigration system.
• These cases burden an already overcrowded and costly
federal prison system.
Immigration
• Oppose the House “SAFE” Act.
• Support family reunification provisions in immigration
reform.
• Reach out to local prosecutors and law enforcement
officials.
• Identify compelling stories from your community.
• Discuss these prosecutions when talking about border
security with elected officials.
Criminal Justice
• Support funding for the federal courts and the federal
defenders.
• Write letters to the editor and op-eds making clear federal
criminal justice reform must include immigration
prosecutions.
• Identify compelling stories from your community.
• Discuss these prosecutions when talking about federal
criminal justice reform with elected officials.
Immigration prosecutions in the news:
“Is Operation Streamline Worth Its Budget Being Tripled?”, NPR,
September 5, 2013, http://www.npr.org/2013/09/05/219177459/isoperation-streamline-worth-its-budget-being-tripled
“War on Undocumented Immigrants Threatens to Swell US Prison
Population,” Huffington Post, August 23, 2013,
http://www.huffingtonpost.com/2013/08/23/undocumented-immigrantsprison_n_3792187.html
“Prison Reform Must Include Undocumented Immigrants,” Texas
Observer, August 22, 2013, http://www.texasobserver.org/publicdefender-prison-reform-must-include-undocumented-immigrants-2/
“Betraying Gideon in Alpine, Texas,” Al Jazeera America, September
20, 2013, http://america.aljazeera.com/articles/2013/9/20/betrayinggideoninalpinetexas.html
Poll Question #6:
I would be interested in a follow-up seminar for
practitioners on nuts-and-bolts issues in representing
clients in illegal entry and reentry cases.
(a) Yes
(b) No
Thank you to all our panelists and co-sponsors. To learn more about our work, please visit:
Grassroots Leadership
www.grassrootsleadership.org
blibal@grassrootsleadership.org
Follow on Twitter @Grassroots_News
Human Rights Watch, US Program
http://www.hrw.org/en/united-states
mengg@hrw.org
Follow on Twitter @grace_meng and @HRW
Immigrant Justice Network
http://www.immigrantjusticenetwork.org
Follow on Twitter @ImmJustice
National Immigrant Justice Center
http://www.immigrantjustice.org/
Follow on Twitter @NIJC
National Immigration Project of the National
Lawyers Guild
http://www.nationalimmigrationproject.org/
Follow on Twitter @NLGNews