The Department of Homeland Security (DHS) recommended the prosecution of 65% more immigration cases in FY 2004 than it did in the previous year, according to authoritative Justice Department data obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC). See Figure 1.
Controlling U.S. borders against unwanted persons has been a contentious and difficult challenge ever since the nation was born. For example, John Adams, the second president of the United States, persuaded Congress to adopt the Alien and Sedition Acts. One of President Adams' central concerns was his belief that agents of the radical forces leading the French government during the French Revolution posed a genuine threat to the American political system. Thomas Jefferson, who became the third president, did not agree with Adams and was outraged by the law.
More than 200 years later, immigration is still a divisive issue for the American people, for the Congress and even for the highly disciplined Bush Administration. In late July, for example, the challenge of finding a broadly acceptable solution became painfully obvious when Homeland Security Secretary Michael Chertoff and Labor Secretary Elain Chao unexpectedly failed to appear at a long-scheduled Senate hearing to discuss two opposing immigration bills.
But the chairman of the Senate Judiciary Committee, Republican Arlen Specter, said he would not let the administration's silence stop his committee from doing its work. The search for consensus, of course, has been difficult because the American people have profoundly different views about what the government should do. Many business leaders, for example, believe a smoothly operating guest worker program is essential for the economy to expand. On the other hand, many citizens living along the border with Mexico feel the government's primary emphasis should be on preventing the entry of illegal migrants. And clearly, with the events of 9/11/01, the long national debate about who should enter the country, when they should enter and under what conditions has become unusually intense.
The current debate has manifested itself in many different ways. Very recently, for example, the Democratic governors of New Mexico and Arizona said the federal government's inability to control crime and violence on the U.S. border with Mexico had forced them to take separate actions that would provide emergency funding for additional state and local enforcement activities in a number of their counties. In Washington, the DHS immediately responded with a statement asserting that "extraordinary progress" was being made in controlling the border. And this spring, in Arizona, hundreds of volunteers joined what was called the "Minuteman Project", anointing themselves as citizen border patrol agents. Meanwhile the United States Congress was battling over the merits and demerits of a variety of border control measures that some viewed as essential to the survival of the nation and others saw as undermining the democratic system.
As was demonstrated by the declarations of emergency in New Mexico and Arizona, the battle in Congress over a law requiring states to issue new tamper-proof driving licenses and the mobilization of the "Minutemen" to beef up security along a 23-mile stretch of the Arizona border, immigration has once again become a hot political issue.
But with the decision of Mr. Chertoff and Ms. Chao not to testify before the Senate Judiciary, the Bush Administration's position on these and other immigration issues remains somewhat murky, largely defined by a generally worded January 2004 statement on the White House web site that called for "fair and secure immigration reform." These twin goals can be achieved, the administration said, by emphasizing the improvement of the nation's control of its borders and a new guest worker program under which willing workers would be matched with willing employers when no American worker is available for a particular job.
Often, however, through the systematic examination of individual actions taken by the government, official policies can be discerned even when they are not directly articulated by the governors. When it comes to protecting the borders, for example, dramatic changes in the criminal enforcement of the immigration laws may well provide important clues as to actual policy.
What Indeed Is the Administration's Enforcement Policy?
When the changes in the overall immigration enforcement effort are examined, it would appear that the Bush Administration has in fact adopted an across-the-board get-tough policy: more referrals, more prosecutions and more convictions. The overall counts for the entire nation seem clear. Referrals climbed from just under 24,000 in FY 2003 to almost 40,000 in FY 2004 -- an increase of 65%. In the same period, prosecutions rose 82% -- from almost 21,000 to just under 38,000. And the increase in convictions was similarly up, 18,000 to 31,000. (See Figure 1 above.)
This stark difference between the documented policies of the nation and a district are more evidence of how federal enforcement in one part of the country -- influenced perhaps by the ambitions of an individual U.S. Attorney, staffing decisions of a key agency or some other unannounced change -- sometimes goes its own way. Although the federal government is often viewed as a rule-bound organization whose various parts mostly follow their orders from Washington, Justice Department data going back almost two decades indicate that sharp and hard-to-explain regional variations are not all that rare.
The National Picture
The national surge in the referral and prosecution of DHS immigration matters from 2003 to 2004 is unusual in its own right. But the jump also resulted in a number of dramatic changes in the overall look of the federal government's criminal enforcement effort. Among the changes are the following:
Texas South, originally established in 1902, currently is the seventh largest in the nation with over 7 million residents, 43 counties and more than 150 assistant U.S. Attorneys.
From December 2001 until June of 2005 the U.S. Attorney in Texas South was Michael T. Shelby. He is now an attorney with Fulbright and Jaworski, a major national law firm based in Houston. In his May 13 resignation statement, Mr. Shelby praised the work of his office in handling cases involving international terrorism, corporate fraud and public corruption, but did not mention criminal cases involving immigration violations.
Given the circumstances, this seems a curious lapse. According to the case- by-case information provided the Executive Office for United States Attorneys by the district he until recently headed, the office in FY 2004 prosecuted a total of slightly more than 21,000 individuals, 18,340 of whom it said were charged with immigration violations. By comparison, his office said, it only prosecuted 90 white collar crime matters, 35 internal security and terrorism matters and 15 official corruption matters.
For the federal prosecutors in Texas South handling immigration matters, the data show that in 2004 -- the year when their enforcement effort absolutely exploded -- their favorite charge was a section of 8 USC 1325, illegal entry, that previously had been cited much less frequently. Convictions in the district where the section of illegal entry statute law was the lead charge went from 304 in FY 2003 to 13,778 in FY 2004. This jump means that in the most recent complete fiscal year that 8 USC 1325 convictions made up an overwhelming majority of all immigration matters in the district. See Table.
Records from both the Justice Department and the courts show that many if not most of these cases are handled in a cursory way by magistrate judges rather than district court judges. For a flavor of how the process works consider the case brought in the Southern District of Texas against one Eduardo Garcia Nunez.
The complaint was filed against Garcia Nunez by Amador H. Carbajal, a senior agent of the Border Patrol, who said the defendant had been apprehended by an agent who was not named while wading across the Rio Grande River near Brownsville on October 30, 2004. On the next business day, at a brief hearing before Magistrate Judge John William Black, Nunez was formally charged with violating 8 USC 1325(a) (1) for "willfully, knowingly and unlawfully" entering the United States at "a place other than designated by an immigration officer in violation of the law." During the same short session, represented by Sandra Zamora Zayas, a public defender, the defendant was advised of his right to trial, the right to remain silent, the right to bring witnesses on his behalf. Nunez, waiving all his rights, pled guilty and was sentenced to 30 days of confinement.
The official minutes of the whole process required only a few lines of text:
Counsel was appointed to represent the Defendant. The defendant was advised of and waived the following rights: The right to trial; the right to at least thirty (30) days to prepare for trial before the Magistrate Judge; the right to remain silent; the right to bring witnesses and present testimony on his/her behalf; the right to confront and cross examine witnesses. The Defendant was arraigned on the charge(s) contained in the criminal complaint. The Defendant pleaded guilty to the charge(s) in the criminal complaint. The Defendant was sentenced as outlined in the Judgment signed this day. ... (Entered 11/01/2004)
Neither Mr. Shelby, the former U.S. Attorney, nor the public affairs officer in the Texas South responded to written inquiries requesting their explanations for the recent abrupt enforcement changes in the district.
The sheer volume of DHS immigration referrals in Texas South (Houston) in FY 2004 (18,092) tower over the totals racked up by the four other districts along the Mexican border in the same year -- 4,170 in Texas West (San Antonio) , 3,407 in Arizona (Phoenix), 2,801 in California South (San Diego) and 1,771 in New Mexico (Albuquerque).
Along the border with Canada, although there were many fewer criminal referrals than in the districts next to Mexico, the overall total on the northern border increased by over a third between FY 2003 and FY 2004. As it was along the southern border, the growth rate in these districts was widely varied, ranging from increases of 140% in Pennsylvania, West (Pittsburgh) and 126% in Michigan East (Detroit) to decreases of 13% in New Hampshire and 17% in Alaska. See Tables.
Some of the district-to-district differences may be attributable to varying reporting practices for immigration offenses among the U.S. attorney offices. Historically, petty offenses were not included in the official counts published by the Department of Justice for U.S. Attorney offices. However, the erratic recording practices even now make distinguishing "petty" matters from more serious (Class A) misdemeanors somewhat difficult.
While data compiled by the Administrative Office of the U.S. Courts for FY 2004 show higher numbers of immigration prosecutions than recorded by U.S. Attorney offices, the overall patterns noted above are similar. In particular, court data confirm that the Southern District of Texas leads the country in immigration prosecutions and has experienced a large surge in volume during FY 2004. In fact, court data indicate that there were over 19,211 prosecutions in Texas South while U.S. attorney's office recorded only 17,136. In addition to apparent under-counting of petty immigration prosecutions in Texas South, court data indicate significant under-recording by U.S. attorney offices in Arizona and in the Western District of Texas. See Table.
The Law Is the Law
Most DHS immigration prosecutions were brought under one of three laws:
The growth in these prosecutions also varied by charge. Between FY 2003 and FY 2004 the number of convictions under two out of three of these laws in fact fell. These two statutes were the ones more commonly relied upon in district court. In the case of 8 USC 1326 (re-entry of deported aliens) convictions were in fact down by nearly a one thousand -- from 10,217 during FY 2003 to only 9,245 in FY 2004. See Table. But last year's convictions were substantially up from the levels of five years ago of 6,540, and prosecution filings were up between 2003 (11,134) and 2004 (12,866).
In contrast, the prosecution of cases for the less serious charge of the entry of aliens is sharply up. It is this increase of petty misdemeanor, charges under 8 USC 1325 that accounts for a great deal of the growth in the overall number of immigration cases in the past year. And most of this growth was recorded as being brought in the Southern District of Texas. See Table.
As noted earlier, only a handful of DHS immigration prosecutions are classified by the Justice Department under one of the terrorism program categories. Of the total of 37,765 DHS immigration cases in FY 2004, the Justice Department said that only 11 were believed to be actual terrorists -- three classified as domestic terrorists, one as a financial terrorist, and seven as international terrorists.
In addition to these terrorism categories, however, the Justice Department also has a category it calls "anti-terrorism". This area, according to the department's data manual, covers cases brought by the prosecutors that were "intended to prevent or disrupt potential or actual terrorist threats where the offense conduct is not obviously a federal crime of terrorism."
Listed in the somewhat murky "anti-terrorism" category, there are several sub-categories with the largest concerning 105 DHS immigration situations. All together, however, during 2004, only 145 of the departments immigration prosecutions were classified as involving terrorism or anti-terrorism.
Questions Raised by a Closer Examination
At first glance, the Justice Department data about DHS immigration enforcement in FY 2004 and the first half of FY 2005 suggests that the overall quality of the cases had seriously declined. That would seem to be the obvious conclusion from the finding that the median sentence for these cases --half got more, half got less -- had gone from 15 months in 2003 to one month in 2004. Similarly, the median time spent on each case dropped from 131 days in 2003 to only 38 days in 2004.