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Slide1
Criminalizing Migration: Excessive Prosecution and PunishmentSlide2
How to ask questions
Please submit questions in writing.Substantive questions will be addressed during the Q&A session after all the panelists’ presentations.Slide3
Follow upA 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.Slide4
Panelists
Grace Meng, mengg@hrw.org US Researcher Human Rights WatchDonna Coltharp, donna_coltharp@fd.org
Deputy Public Defender Western District of TexasDan Kesselbrenner, dan@nipnlg.org Executive Director National Immigration Project of the National Lawyers GuildClaudia Valenzuela, cvalenzuela@heartlandalliance.org
Associate Director of Litigation
National Immigrant Justice Center
Bob Libal,
blibal@grassrootsleadership.org
E
xecutive Director Grassroots LeadershipSlide5
Poll Question #1I am interested in this issue because I am a
Criminal defense attorneyImmigration attorneyNot an attorney, but an advocateNone of the aboveSlide6
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/us-prosecuting-migrants-hurting-familiesSlide7
Relevant Statutes
Misdemeanor illegal entry: 8 USC Section 1325Felony illegal reentry (after deportation): 8 USC Section 1326Slide8Slide9
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.pdfSlide10Slide11
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,
f
ormer
a
ssistant secretary of ICE: “These are the worst of the worst.” Slide12
Assembly-Line Justice
Artist’s rendering of Operation Streamline in Tucson, Arizona, on May 6, 2013.
© Maggie Keane for Human Rights WatchSlide13
Fast-Track Plea Agreements
From April 2013 Fast-Track plea agreement offered by the US Attorney’s office in PhoenixSlide14
L
ooking at just illegal reentry felony convictions:Slide15
More HRW Data Visualizations
All of them are available here:
http://www.hrw.org/node/115758Slide16
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.”Slide17
Defendants
Migrant workersAsylum-seekersLong-term US residents trying to return to US families
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. © PrivateSlide18
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?”Slide19
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.”Slide20
Deportations are at a record-high.Slide21
Poll Question #2Which federal agency refers the most cases for federal criminal prosecution?
Federal Bureau of Investigations (FBI)Arms, Tobacco, Firearms (ATF)Drug Enforcement Administration (DEA)Department of Homeland Security (DHS)Slide22
Answer: (d) The Department of Homeland Security
http://trac.syr.edu/tracreports/bulletins/overall/monthlyjul13/fil/Slide23
In 2012. . . . Immigration was the largest category of federal offenses—for the 4
th 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.Slide24
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:Slide25
Prosecutions continue
to increaseSlide26
Numbers in the Western District of TexasJanuary 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: ~161Expected per-attorney immigration
workload for 2013 (due to sequester cuts): 170FY 12: Entry/reentry cases required 125,120 work hours, or were 55.27 percent of the WDTX’s workload.Slide27
Cost in DollarsFY 12: The average entry/reentry case: $831
FY 12: Total costs for entry/reentry cases: $2,542,457.**These are conservative numbersSlide28
Factors that can affect the cost of defending a reentry caseLanguage barriers
TravelThe complexity of laws determining derivative citizenshipThis may require:Extensive document research by investigatorsExtensive travel and witness interviewsIn some cases, immigration “experts”Slide29
U.S. Sentencing Guidelines
Why Illegal Reentry Sentences Can Be So HighSlide30
Some PerspectiveAggravated Assault with a Gun, Causing Permanent or Life-Threatening Injury
Base offense level: 14Use of a firearm: + 5Causing permanent or life-threatening injury: + 7______________Total increase: 12 levels
Illegal Reentry after a single prior felony drug-trafficking offenseBase offense level: 8Prior drug offense: + 16________________Total increase: 16 levelsSlide31
Sentencing DiscretionWhile 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 casesIn 27.6 percent of kidnaping casesIn 40 percent of antitrust casesIn 20 percent of drug-trafficking cases, BUTIn only 7.2 percent of immigration casesSlide32
The cost of incarcerating immigration defendants
In FY 2012, the average annual cost to incarcerate one person in federal prison was $29,027.Slide33
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 defensesDifficulty visiting clients and fulfilling Sixth Amendment obligationsPlea and sentencing hearings that involve multiple defendants with little individual treatment.
Former Supervisory Assistant Federal Public Defender Elizabeth Rogers AlJazeeraSlide34
Poll Question #3True or false: Unlawful presence in the United States is a federal crime.
TrueFalseSlide35
Answer:(b) FalseSlide36
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.Slide37
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.Slide38
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.Slide39
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.Slide40
H.R. 2278Has 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 offenseMake unlawful presence after getting voluntary departure an aggravated felonySlide41
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. Slide42
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!Slide43
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 Slide44
HR 2278Undercuts 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. Slide45
S. 744Funds 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 Slide46
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 re-entry after prior criminal historySlide47
New Ground for Suspected Gang Members
Law is overbroad and will be retroactive Challenging such a classification will be difficultWill exacerbate existing problems of misidentification, increase profiling, and target children and youth, many of whom are the victims of crime and human trafficking.Slide48
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 Slide49
S. 744’s expanded border enforcement
Expands border patrol (almost doubles)Requires completion of fencingMakes the Southern Border one of the most militarized regions in the worldCreates a $3.2 billion high-tech border surveillance plan including drones, which will undermine public safetySlide50
Impact of S.744 Border Provisions
Increases likelihood of civil and human rights enforcement violationsProvides no meaningful accountability mechanism WASTES MONEYSlide51
Poll Question #4What percentage of deportations occur after a hearing before an immigration judge?
More than 90 percentAbout 75 percentLess than 50 percent10 percentSlide52
Answer:(c) Less than 50
percentMigration Policy Institute, Immigration Enforcement in the United States: The Rise of a Formidable Machinery (2013)http://www.migrationpolicy.org/news/2013_1_07.phpSlide53
www.immigrantjustice.org
Connect with NIJC:
E-Newsletter & Action Alerts: www.immigrantjustice.org/action
Twitter: twitter.com/nijc
Facebook: http://www.facebook.com/immigrantjusticeSlide54
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) Slide55
55
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, recreationSlide56
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 orderSlide57
57
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 non-citizen
Immigration judge approves the “request” and enters removal order in the absence of the partiesSlide58
No right to a hearing:
Summary removal procedures
C
urrently 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)Slide59
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-lawyersSlide60
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/Deportation_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)Slide61
Unfettered authority:
DHS Enforcement Officers
The result?
DHS enforcement officers serve as police, prosecutor, judge and jury in determining a non-citizen’s fate.Slide62
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.Slide63
Case Study 1: Antonio
In Absentia Removal Order
Long-time LPR, travels to Mexico while in removal proceedings to see sick sonDenied entry by CBP upon returnOrdered removed in absentia
Re-enters unlawfully
R
emoval proceedings re-opened
S
uccessfully defends against
illegal re-entry case (WDTX
) Slide64
Case Study 2: Gabriela
Stipulated Removal OrderBrought to US when 9 months old; LPR at age 11
Married U.S.C., 4 U.S.C. children2003 Possession of methamphetamine convictionUnaware 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)Slide65
Gabriela’s FamilySlide66
Sources
Department of Homeland Security (DHS) FY 2012 Removal Statistics:
http://www.ice.gov/removal-statistics/
DHS 2011 Yearbook of Immigration Statistics
http
://
www.dhs.gov/yearbook-immigration-statistics
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.pdfSlide67
Poll Question #5What percentage of federal prisoners in 2010 were serving time for a violent offense?
50 percent25 percent12 percent6 percentSlide68
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.pdfSlide69
“Operation Streamline:
Costs & Consequences”Released September 2012
More information: blibal@grassrootsleadership.org
www.grassrootsleadership.org/operationstreamlineSlide70
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 sentencesCriminalizing Migration: Costs and Consequences – Prison GrowthSlide71
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 – Prison Demographics Slide72
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-entryCriminalizing Migration: Costs and Consequences – Swelling CostsSlide73
Criminalizing Migration: Costs and Consequences – Swelling CostsSlide74
Private prison corporations like
Corrections Corporation of America, GEO Group, and
Management and Training Corporation are big winners in migrant prosecutionsCriminalizing Migration: Costs and Consequences – Private Prisons Slide75
Criminalizing Migration: Costs and Consequences – Private Prisons Slide76
Criminalizing Migration: Costs and Consequences – Private Prisons Slide77
Criminalizing Migration: Costs and Consequences – Private Prison LobbyingSlide78
“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 – Private Prisons Slide79
Criminal Alien Requirement-contract BOP facilities:
Privately-operated under long-term contracts with occupancy guaranteesSafety concerns with deadly consequences
Criminalizing Migration: Costs and Consequences – Facility ConditionsSlide80
Advocacy Opportunities
Short-termJoin Federal Private Prison Working Group effortsAdvocate BOP cancel new CAR-contract solicitations
Contact House over-criminalization task force to address immigration prosecutionsLong-termDe-prioritization of immigration prosecutionsSlide81
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.Slide82
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. Slide83
Criminal JusticeSupport 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. Slide84
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/is-operation-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-immigrants-prison_n_3792187.html“Prison Reform Must Include Undocumented Immigrants,” Texas Observer, August 22, 2013, http://www.texasobserver.org/public-defender-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/betraying-gideoninalpinetexas.htmlSlide85
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.
YesNoSlide86
Thank you to all our panelists and co-sponsors. To learn more about our work, please visit:
Grassroots LeadershipHuman Rights Watch, US Program
Immigrant Justice NetworkNational Immigrant Justice CenterNational Immigration Project of the National Lawyers Guild
www.grassrootsleadership.org
blibal@grassrootsleadership.org
Follow on Twitter @
Grassroots_News
http
://
www.hrw.org/en/united-states
mengg@hrw.orgFollow on Twitter @grace_meng
and @HRWhttp://www.immigrantjusticenetwork.org Follow on Twitter @ImmJusticehttp://www.immigrantjustice.org/
Follow on Twitter @NIJChttp
://www.nationalimmigrationproject.org/Follow on Twitter @NLGNews