Michael Neal is an assistant federal defender in El Paso, Texas. He graduated from the University of Florida Fredric G. Levin College of Law. Since qualifying as an attorney he has clerked at the U.S. Department of Veteran Affairs in Florida, and later served as counsel in Washington DC; been counsel at a local legal aid; and was an assistant public defender in Florida’s 10th Judicial Circuit, prior to accepting his current position. His writing here stems from his personal and professional experiences working on immigration cases. To protect the interests of persons involved, names have been changed and case numbers omitted.
Brown and Dangerous: How the Trump Administration Sees Immigrants
* When nineteen year old Joni García was released from a Texas jail in June 2019,[i] he thought his nightmare was over. The Guatemalan-born teenager was falsely accused of possessing a tiny amount of marijuana found in a friend’s car. Joni was merely a passenger. The case was dismissed, and renewed hope lifted his spirits. He could now finish his senior year of high school, enlist in the Navy and, one day, become a citizen of the United States of America. But to the teenager’s despair, his American Dream was over.
Joni was sent to a detention camp for immigrants. However, he did not come to the United States illegally. Joni was a humanitarian parolee. In 2015, Joni and his family fled Guatemala amidst violence surrounding a foreign hydroelectric project.[ii] The project threatened the water supply of Mayan communities and drew both protests and retaliation against indigenous opposition. Joni’s mother brought him and his two little sisters to US-Mexican border near San Diego, California. Customs and Border Protection granted them humanitarian parole, an extraordinary measure permitting entry into the United States for urgent humanitarian reasons. They settled in the Fort Worth, Texas, where Joni and his sisters attended school and learned English.
Every year, Joni’s family reported to Immigration and Customs Enforcement (ICE). But after Joni’s arrest, ICE revoked his humanitarian parole. It did not matter that the case was dismissed. It did not matter that Joni was innocent. ICE kept Joni behind bars and began deportation proceedings. For six months, Joni fought his deportation from inside the detention camp. It was the most time the wide-eyed teenager in braces had ever spent away from his family. But in December 2019, Joni was deported, all for a crime he did not commit.
Joni is a casualty of the Trump Administration’s zero tolerance approach towards immigration enforcement. Parole is a discretionary form of relief and may be taken away at any time.[iii] However, immigration authorities have historically exercised varying degrees of prosecutorial discretion.[iv] Whether they would revoke parole and detain an undocumented immigrant hinged, in part, on the immigrant’s ties to the country and danger posed to the public, if any.[v] Today, prosecutorial discretion has virtually vanished under the guise of national security.[vi] Undocumented immigrants are arrested, detained, and processed for deportation without regard to the families or communities they leave behind.
At the same time, legal immigration to the United States is on the decline.[vii] The number of refugees admitted into the country by the Office of Refugee Resettlement has reached its lowest level ever.[viii] The recently expanded travel ban deems immigrants of certain nationalities and religions as inherently dangerous.[ix] The Administration’s message to immigrants is clear: we don’t want you, and even if you’re here legally, we will find any excuse to kick you out.
Joni’s deportation adds another dimension to this cruel crusade against immigrants. By being deported, any future unlawful entry into the United States can be charged criminally as illegal reentry, a felony offense.[x] Under zero tolerance, illegal reentry is prosecuted without exception.[xi] However, pressures on certain immigrants to reenter the United States are overwhelming. For example, under the Migrant Protection Protocols, an asylum-seeker must remain in Mexico while they await a decision on their asylum petition.[xii] Mexican cities along the southern United States border are among the most dangerous in the world.[xiii] Asylum seekers waiting on the Mexican side of the border have fallen victim to assault, kidnapping, rape, and murder.[xiv] Rather than wait in Mexico, some asylum-seekers illegally enter or reenter the United States for safety. As duress is an extremely narrow defense[xv], such asylum-seekers are almost guaranteed of being convicted at trial.
Other undocumented immigrants reenter the United States after having lived in the country as a child. They went to school in the United States, learned English, and assimilated into their communities. They have little to no remaining family in their country of origin, where locals easily distinguish them as “American” by their accent and mannerisms. Deportation of such cultural Americans separates them from their parents, spouses, and children and plunges them into a country they no longer know, often without a penny to their name. Their illegal reentry is not only understandable but expected by federal judges who often impose longer periods of supervised release on immigrants with extensive family ties to the United States.[xvi]
Such was the case of Joni. His deportation to Guatemala was akin to being led into the desert, depriving him of his family as one is deprived of water. It was not long before the teenager returned to the United States to reunite with his mother and little sisters. Through wall, fence, and razor-sharp barbed wire, Joni successfully crossed into the United States from Mexico. His wounds oozed blood and conviction as he made his way back home to Fort Worth, Texas. However, on January 10th, 2020, Border Patrol agents arrested Joni at a highway checkpoint. Without hesitation, the Government charged him with illegal reentry. After spending nearly three months in jail, Joni was convicted.
Once convicted of illegal reentry, immigrants are branded as felons for the rest of their lives. A felony conviction decimates the chances of ever legally entering the United States, leaving further illegal reentry the most realistic means of returning. For the most desperate of undocumented immigrants, that means reoffending and facing years of imprisonment. This is at the heart of zero tolerance—attempting to deter illegal immigration through mass incarceration. A border-to-prison pipeline. At a time when the Trump Administration is cutting legal immigration, zero tolerance falls harshest on those with the most reason for returning.
Joni’s case illustrates the Trump Administration’s ever-increasing hostility towards immigrants. To the Administration, Joni’s conviction means the country can sleep safely now that a harmless teenager, brought to America legally as a child, has been placed behind bars. To Joni, it means he may never see his family in the United States again.
* Since the writing of this article, an infectious disease known as COVID-19 has ravaged much of the world. The United States is no exception. Correctional institutions are particularly vulnerable to the disease’s spread. See Timothy Williams et al., ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, The New York Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/us/coronavirus-prisons-jails.html. On March 27, 2020, hundreds of former federal judges and attorneys signed a letter to the White House urging it to limit “new custody to only individuals who present a serious and demonstrable risk to public safety.” Letter to President Donald J. Trump, Fair and Just Prosecution (Mar. 27, 2020), https://fairandjustprosecution.org/wp-content/uploads/2020/03/Letter-to-Trump-from-DOJ-and-Judges-FINAL.pdf. In the face of a public health crisis, the Government has ceased prosecuting most illegal border crossings. See Ryan Devereaux, Mass Immigration Prosecutions on the Border are Currently on Hold. What Comes Next Is Uncertain., The Intercept (Mar. 18, 2020) https://theintercept.com/2020/03/18/immigration-border-prosecution-coronavirus/. This drastic change in policy is likely only temporary. Even amidst the COVID-19 pandemic, the Trump Administration has doubled down the construction of a wall along the southern border. See Alfredo Corchado et al., Crews still hard at work on Trump’s border wall, despite stay-home orders and coronavirus pandemic, The Dallas Morning News (Apr. 2, 2020), https://www.dallasnews.com/news/politics/2020/04/02/crews-still-hard-at-work-on-trumps-border-wall-despite-stay-home-orders-and-coronavirus-pandemic/.
[I] In an abundance of caution, I have assigned a pseudonym to protect my client’s privacy and safety.
[ii] See Jeff Abbott, Guatemala’s indigenous water protectors organize to challenge hydroelectric projects, Waging Nonviolence (Nov. 30, 2016), https://wagingnonviolence.org/2016/11/guatemala-indigenous-hydroelectric/; Situation of Human Rights in Guatemala, Inter-American Commission on Human Rights Organization of American States, 94-95, 97 (Dec. 31, 2015), http://www.oas.org/en/iachr/reports/pdfs/guatemala2016-en.pdf (noting specific instances of human rights abuses against opponents of the hydroelectric projects).
[iii] See 8 U.S.C. § 1182(d)(5).
[iv] For a thorough review of prosecutorial discretion in the context of immigration, see Shoba S. Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. L. J. 243 (2010).
[v] See generally Understanding Prosecutorial Discretion in Immigration Law, American Immigration Council (Sep. 2011), https://www.americanimmigrationcouncil.org/sites/default/files/research/IPC_Prosecutorial_Discretion_090911_FINAL.pdf.
[vi] See Exec. Order No. 13768, 82 Fed. Reg. 8799 (2017) (“Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety.”); The End of Immigration Enforcement Priorities Under the Trump Administration, American Immigration Council, https://www.americanimmigrationcouncil.org/sites/default/files/research/the_end_of_immigration_enforcement_priorities_under_the_trump_administration.pdf (Mar. 2018) (“[T]he Trump administration expanded ‘enforcement priorities’ so broadly as to render the term meaningless”).
[vii] Stuart Anderson, New Data: Legal Immigration Has Declined Under Trump, Forbes (Jan. 13, 2020), https://www.forbes.com/sites/stuartanderson/2020/01/13/new-data-legal-immigration-has-declined-under-trump/#3f88fa36e999.
[viii] See Jens M. Krogstad, Key facts about refugees to the U.S., Pew Research Center (Oct. 7, 2019), https://www.pewresearch.org/fact-tank/2019/10/07/key-facts-about-refugees-to-the-u-s/ (noting about 23,000 refugees were admitted in 2018); History, Office of Refugee Resettlement, https://www.acf.hhs.gov/orr/about/history (noting a previous historic low of 27,100 refugees admitted in 2002).
[ix] See Proclamation 9983, 85 Fed. Reg. 6699 (2020); Proclamation 9645, 82 Fed. Reg. 45161 (Sep. 24, 2017); Exec. Order No. 13780, 82 Fed. Reg. 13209 (Mar. 6, 2017); Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017).
[x] 8 U.S.C. § 1326.
[xi] The Trump Administration’s “Zero Tolerance” Immigration Enforcement Policy, Congressional Research Service (Feb. 26, 2019), https://fas.org/sgp/crs/homesec/R45266.pdf (“Under the zero tolerance policy, DOJ prosecuted 100% of adult aliens apprehended crossing the border illegally, making no exceptions for whether they were asylum seekers or accompanied by minor children.”); Attorney General Sessions Delivers Remarks Discussing the Immigration Enforcement Actions of the Trump Administration, Department of Justice (May 7, 2018), https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-discussing-immigration-enforcement-actions;Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry, Department of Justice (Apr. 6, 2018), https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry.
[xii] Migrant Protection Protocols, Department of Homeland Security (Jan. 24, 2019), https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols; Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration, Department of Homeland Security (Dec. 20, 2018), https://www.dhs.gov/news/2018/12/20/secretary-nielsen-announces-historic-action-confront-illegal-immigration.
[xiii] In 2018, three of the top ten most dangerous cities in the world were Mexican cities on or near the border with the United States. Las ciudades más violentas del mundo 2018, Consejo Ciudadano para la Seguridad Pública y la Justicia Penal (Mar. 12, 2019), http://seguridadjusticiaypaz.org.mx/files/estudio.pdf. Twelve other cities in Mexico were among the world’s fifty most dangerous cities. See 50 of the Most Dangerous Cities in the World, USA Today (Aug. 14, 2019), https://www.usatoday.com/picture-gallery/travel/news/2019/07/24/most-dangerous-cities-world-tijuana-caracas-cape-town/1813211001/.
[xiv] See Human Rights First Publishes Running Database of Attacks on Asylum Seekers Under MPP, Human Rights First (Nov. 21, 2019), https://www.humanrightsfirst.org/press-release/human-rights-first-publishes-running-database-attacks-asylum-seekers-under-mpp.
[xv] A defendant claiming duress must show, in part, that he or she was under an imminent and impendingthreat of death or serious bodily injury and had no reasonable legal alternativeto violating the law.See United States v. Willis, 38 F.3d 170, 175 (5th Cir. 1994). The threat must occur at the time of crossingthe border into the United States. See United States v. Vasquez-Hernandez, 924 F. 3d 164, 171 (5th Cir. 2019). Crossing into the United States minutes after escaping kidnappers, for example, would not necessarily warrant a duress defense. See United States v. Ramirez-Chavez, 596 Fed. Appx. 290, 293 (5th Cir. 2015).
[xvi] In an immigrant’s first illegal reentry, a judge may impose up to one year of supervised release following up to two years imprisonment. See 8 U.S.C. § 1326(a); 18 U.S.C. § 3559(a)(5), § 3583(b)(3). In a subsequent illegal reentry, a judge may impose up to three years supervised release following up to ten years imprisonment. See 8 U.S.C. § 1326(b)(1); 18 U.S.C. § 3559(a)(3), § 3583(b)(2). Returning to the United States illegally while under supervised release would violate the conditions of release and expose immigrants to much more time in prison. See U.S.S.G. § 7B1.4 (applicable range of imprisonment for supervised release violations).