- The Washington Times - Sunday, May 13, 2018

The Trump administration’s “zero-tolerance” vow to pursue criminal charges against all illegal border crossers is already stumbling, with one judge cutting migrants loose without any bail payment and federal prosecutors telling Border Patrol agents they’re full up and can’t actually bring cases against everyone.

There have been some prosecutions — two illegal immigrants who were part of the illegal immigrant caravan who jumped the border in Texas and were nabbed by agents from the Laredo region were quickly prosecuted, agreed to plea deals and slapped with five-day jail sentences last week.

But elsewhere, agents are finding that when they apprehend illegal immigrants and turn the cases over to prosecutors, the lawyers say they’re not interested.

Thirteen illegal immigrants nabbed by agents in the Border Patrol’s Boulevard station in California were declined on Fridayalone, said Brandon Judd, president of the National Border Patrol Council, and an agent himself. He said his fellow agents were telling him prosecutors were picking and choosing, constrained chiefly by resources, leaving “a good number of them … being turned down” for prosecution.

“It’s a far cry from zero tolerance,” Mr. Judd told The Washington Times.

Justice Department spokesman Devin O’Malley said they are committed to establishing law and order at the border.

“We are working hand-in-hand with the Department of Homeland Security to ensure a seamless transition to the ‘zero tolerance policy.’ Our U.S. Attorneys along the border are aggressively prosecuting cases of illegal entry pursuant to the attorney general’s directive,” Mr. O’Malley said.

“Important work takes time, but with the additional resources this administration has provided, combined with the commitment of the dedicated professionals from DHS and prosecutors from the Justice Department, the deterrent effect of prosecutions along the border will begin to take hold,” he said.

Attorney General Jeff Sessions announced the zero-tolerance policy in April, soon after the government revealed illegal immigration across the southwest border had soared 203 percent in March, according to year-over-year comparisons. The announcement also came just as the illegal immigrant caravan was testing the administration’s resolve.

“To those who wish to challenge the Trump Administration’s commitment to public safety, national security, and the rule of law, I warn you: illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice,” Mr. Sessions said at the time.

But in the weeks since, the illegal immigrant numbers have only gotten worse: The month of May was 230 percent higher than the same time last year.

Some prosecutions have happened under the zero-tolerance policy, including at least 13 members of the caravan who jumped the border in recent weeks.

Two caravan members caught in Texas on May 4 were charged with illegal entry, entered guilty pleas on May 9, and agreed to five-day sentences — apparently covering the time they’d already served.

In southern California, where the caravan’s effects were more prevalent, prosecutors lodged charges against 11 migrants, and are offering them time-served plea deals as well.

Illegal entry is a misdemeanor and can be punished by up to six months in jail. If someone who’s been deported before tries to sneak back in that’s illegal reentry after deportation, a felony, and can earn up to two years in prison.

A spokesperson for Adam L. Braverman, the U.S. attorney in southern California, declined to comment on the decision-making, citing the ongoing cases.

A Homeland Security official said they’re the department is doing what was asked of it, apprehending and referring all illegal immigrants for prosecution.

The lawyers for the migrants challenging the prosecutions did not respond to email and phone requests from The Washington Times.

But according to court documents, Eric S. Fish, the lawyer defending some of the caravan migrants in southern California, is mounting a vigorous resistance. He’s pushing for the migrants to be released without having to post any financial bond — and has already won that argument with at least one judge, Gonzalo P. Curiel, with whom President Trump clashed during the 2016 campaign.

The government has asked for Marbel Yaneth Ramirez-Raudales to be held on a $10,000 secured bond but Judge Curiel instead only required a signature and an unsecured bond promise. The judge reasoned that the migrant was going into immigration custody, so there was no risk of flight.

Once in immigration custody, the migrants are expected to make claims of asylum. Having jumped the border is not held against them in those asylum claims, multiple experts told The Washington Times.

Mr. Fish is also making a case of the government’s failure to follow through on Mr. Sessions’ zero-tolerance pledge, saying that prosecutors appear to be illegally picking on the Central American caravan members.

In court filings pointed to several caravan members who jumped the border as part of larger groups. The caravan migrants charged, while others in their group who weren’t part of the caravan were not, he said, signaling illegal discrimination against the Central Americans who made up the caravan.

The caravan’s couple hundred members, though, are just a small portion of the tens of thousands of illegal immigrants jumping the border each month, leaving the administration and Congress stymied.

Mr. Judd said he pushed for zero tolerance last year, in the early days of the administration. He said there was a time when it would likely have been clearly successful, during the first few months of Mr. Trump’s time in office, when illegal immigration fell dramatically to levels not see since at least the early 1970s.

Analysts said Mr. Trump’s tough talk on the campaign trail had a major impact on would-be migrants and the smugglers who control the traffic through Central America and Mexico, frightening them away from making the trips. But after little substantively changed in those early months, the migrants and smugglers regained their confidence in being able to make it into the U.S., and the numbers had once again surged, surpassing even the last couple years of President Obama’s time in office.

“The fear of deportation and/or prosecution is what caused the historic drop, but because both Congress and the agency didn’t follow through on President Trump’s promises, illegal immigration shot back up,” Mr. Judd said. “Congress failed to pass laws that would have closed loopholes in immigration laws currently being exploited, and the agency failed to implement zero tolerance policies that would’ve ended the catch-and-release program.”

Mr. Judd said it would make sense for Mr. Trump, who reportedly lashed out at his Homeland Security secretary last week, to be frustrated.

“He’s lost all of the gains he made in 2017 and his frustration is understandable and his anger is not misplaced. He rightfully expected his surrogates to enact his vision and he gave them the necessary tools to succeed; they, however, failed to use those tools and enact zero tolerance policies until after all the gains were lost,” Mr. Judd said.

Several experts said zero tolerance has worked where it’s been used in the past — including in Yuma, Arizona, where Operation Streamline, started under the Bush administration, saw prosecutors lodge charges against illegal immigrants. That move, combined with new fencing and more Border Patrol agents, saw illegal immigration drop 95 percent.

Immigrant-rights activists complained about assembly-line justice, with dozens of illegal immigrants pushed through the courts in the span of a couple of hours, with each of them pleading guilty and accept deportation. The Obama administration would eventually end Operation Streamlne.

The key, analysts said, was getting a decent sentence — somewhere in the range of a couple of weeks — and having the conviction on their record, so if they try again they can be charged with illegal reentry, which is a felony and can draw even more jail time.

“You want it to be long enough that it stings a little bit for the alien, but not so long it becomes extremely costly for the government and starts sucking up too much detention space you need for other cases. So you have to find that balance — making the penalty stiff enough without bankrupting the agency,” said Jessica Vaughan, policy studies director at the Center for Immigration Studies.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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