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2 How to ask questions Please submit questions in writing. Substantive questions will be addressed during the Q&A session after all the panelists’ presentations.

3 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

4 Panelists Grace Meng, US Researcher Human Rights Watch Donna Coltharp, Deputy Public Defender Western District of Texas Dan Kesselbrenner, Executive Director National Immigration Project of the National Lawyers Guild Claudia Valenzuela, Associate Director of Litigation National Immigrant Justice Center Bob Libal, Executive Director Grassroots Leadership

5 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

6 Turning Migrants into Criminals: The Harmful Impact of US Border Prosecutions (May 2013) with video and Q&A prosecuting-migrants-hurting-families

7 Relevant Statutes Misdemeanor illegal entry: 8 USC Section 1325 Felony illegal reentry (after deportation): 8 USC Section 1326


9 Immigration cases make up over 40% of all federal criminal cases. US Attorneys’ Annual Statistical Report, FY 2012:


11 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.”

12 Assembly-Line Justice Artist’s rendering of Operation Streamline in Tucson, Arizona, on May 6, 2013. © Maggie Keane for Human Rights Watch

13 Fast-Track Plea Agreements From April 2013 Fast-Track plea agreement offered by the US Attorney’s office in Phoenix

14 Looking at just illegal reentry felony convictions:

15 More HRW Data Visualizations All of them are available here:

16 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.”

17 Defendants Migrant workers Asylum-seekers Long-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. © Private

18 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?”

19 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.”

20 Deportations are at a record-high.

21 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)

22 Answer: (d) The Department of Homeland Security il/

23 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.

24 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:

25 Prosecutions continue to increase

26 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.

27 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

28 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”

29 U.S. Sentencing Guidelines Why Illegal Reentry Sentences Can Be So High

30 Some Perspective Aggravated Assault with a Gun, Causing Permanent or Life- Threatening Injury Base offense level: 14 Use of a firearm: + 5 Causing permanent or life-threatening injury: + 7 ______________ Total increase: 12 levels Illegal Reentry after a single prior felony drug-trafficking offense Base offense level: 8 Prior drug offense: + 16 ________________ Total increase: 16 levels

31 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

32 The cost of incarcerating immigration defendants In FY 2012, the average annual cost to incarcerate one person in federal prison was $29,027.

33 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

34 Poll Question #3 True or false: Unlawful presence in the United States is a federal crime. (a) True (b) False

35 Answer: (b) False

36 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.

37 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.

38 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.

39 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.

40 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

41 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.

42 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!

43 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

44 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.

45 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

46 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 history

47 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.

48 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

49 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

50 Impact of S.744 Border Provisions  Increases likelihood of civil and human rights enforcement violations  Provides no meaningful accountability mechanism  WASTES MONEY

51 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

52 Answer: (c) Less than 50 percent Migration Policy Institute, Immigration Enforcement in the United States: The Rise of a Formidable Machinery (2013)

53 Connect with NIJC: E-Newsletter & Action Alerts: Twitter: Facebook:

54 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)

55 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, recreation

56 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

57 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 parties

58 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)

59 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

60 Lack of accountability & oversight lead to due process & human rights violations FOIA study regarding ICE and CBP’s use of stipulated removal orders: 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: /OIG_13-114_Sep13.pdf /OIG_13-114_Sep13.pdf; Antonio’s story (below)

61 Unfettered authority: DHS Enforcement Officers The result? DHS enforcement officers serve as police, prosecutor, judge and jury in determining a non-citizen’s fate.

62 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.

63 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)

64 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)

65 Gabriela’s Family

66 Sources Department of Homeland Security (DHS) FY 2012 Removal Statistics: statistics/ statistics/ DHS 2011 Yearbook of Immigration Statistics statistics statistics Executive Office for Immigration Review (EOIR) FY 2012 Statistical Yearbook: Transactional Records Access Clearinghouse (TRAC): National Immigration Forum, “The Math of Immigration Detention: Runaway Costs for Immigration Detention Do Not Add Up to Sensible Policies” mathofimmigrationdetention.pdf mathofimmigrationdetention.pdf

67 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

68 Answer: (d) 6 percent Congressional Research Service, The Federal Prison Population Buildup: Overview, Policy Changes, Issues, and Options (2013)

69 “Operation Streamline: Costs & Consequences” Released September 2012 More information: WWW. GRASSROOTSLEADERSHIP. ORG / OPERATIONSTREAMLINE

70 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 Growth

71 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

72 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


74 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



77 Criminalizing Migration: Costs and Consequences – Private Prison Lobbying

78 “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

79 Criminal Alien Requirement-contract BOP facilities: - Privately-operated under long-term contracts with occupancy guarantees - Safety concerns with deadly consequences Criminalizing Migration: Costs and Consequences – Facility Conditions

80 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

81 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.

82 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.

83 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.

84 Immigration prosecutions in the news: “Is Operation Streamline Worth Its Budget Being Tripled?”, NPR, September 5, 2013, operation-streamline-worth-its-budget-being-tripled operation-streamline-worth-its-budget-being-tripled “War on Undocumented Immigrants Threatens to Swell US Prison Population,” Huffington Post, August 23, 2013, prison_n_3792187.html prison_n_3792187.html “Prison Reform Must Include Undocumented Immigrants,” Texas Observer, August 22, 2013, defender-prison-reform-must-include-undocumented-immigrants-2/ defender-prison-reform-must-include-undocumented-immigrants-2/ “Betraying Gideon in Alpine, Texas,” Al Jazeera America, September 20, 2013, gideoninalpinetexas.html gideoninalpinetexas.html

85 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

86 Thank you to all our panelists and co-sponsors. To learn more about our work, please visit: Grassroots Leadership Human Rights Watch, US Program Immigrant Justice Network National Immigrant Justice Center National Immigration Project of the National Lawyers Guild Follow on Twitter @Grassroots_News Follow on Twitter @grace_meng and @HRW Follow on Twitter @ImmJustice Follow on Twitter @NIJC Follow on Twitter @NLGNews


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