Thread: Courts face equal strain from incessant immigrant casework

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Courts face equal strain from incessant immigrant casework
February 06, 2006
Brittney Booth
The Monitor


EDINBURG — In the dozen years he’s presided over the 370th bench, state District Judge Noe Gonzalez doubts he’s ever called an entire criminal docket without dealing with a defendant’s immigration issues.

In fact, illegal immigrants are so common at the Hidalgo County Courthouse that judges and prosecutors face a daily dilemma in deciding how to factor immigration statuses into plea recommendations and sentencing — even though immigration violations are a federal crime.

"Most judges try hard to treat everyone the same, but (immigration status) is a factor," Gonzalez said.

The federal and state systems often collide as local judges consider how to punish non-U.S. citizens convicted of crime, like theft or prostitution, that will likely result in deportation.

If a U.S. citizen committed the same crime, a judge may grant probation as part of a plea agreement, but probation is often not a feasible option for an illegal immigrant on the road to deportation. For one, an illegal immigrant wouldn’t be able to report to their probation officer if they returned to their home country.

On the other hand, if the judge opts for a prison sentence instead, taxpayers will pay for incarceration time on someone who authorities will likely deport at the end of their sentence anyway.

Judges tend to make a case-by-case evaluation considering how the person has lived in the United States, how tight their family and other ties are here and whether they have a prior criminal record, Gonzalez said.

"I don’t think judges treat them differently; the system treats them differently," Gonzalez said.

The probation department isn’t really concerned about those who don’t report due to deportation, though, as long as they are not arrested again in this country, said Hidalgo County Adult Probation Director Joe Lopez.

"If they are deported, it becomes impossible for them to meet conditions, which is OK, so long as they don’t come back and commit more crimes," said Lopez, who reports that nearly 9 percent of the 17,304 people in the probation system are Mexican nationals deported to their home country. "Some have had their probation revoked based on the fact they came back illegally."

There are only certain crimes that are deportable, which the U.S. Border Patrol tags as "aggravated felonies." Those include murder, sexual assault and drug crimes.

"Criminal aliens" — as the Border Patrol calls non-U.S. residents who commit crimes — can also be deported if they have already been convicted of a crime and are picked up a second time. Non-U.S. residents or illegal immigrants who commit crimes that are not deportable are given voluntary return, meaning they are supposed to return on their own.

A special team of Border Patrol agents conducts checks on the Hidalgo County Jail twice each day and interviews all new inmates to determine their immigration status. The team, called the Border Patrol Criminal Alien Program, or BORCAP, identifies inmates who are illegally in this country and foreign nationals with permission to be here, according to John Gutierrez, the supervisory agent of the program.

Border Patrol then places a "detainer" on those with questionable immigration statuses, which prevents the inmate from bonding out of jail. The detainer also prevents the inmate’s release after his sentence is complete and allows federal authorities to process immigration violations.

From October 2004 to September 2005, BORCAP found 1,008 criminal aliens in Hidalgo County jail, up from 986 during the same period the year before. BORCAP agents interviewed 969 undocumented immigrants in jail who did not have a prior criminal record, also higher than the 854 they found the year before, according to the Border Patrol.

While sentencing is up to a judge’s discretion, they typically follow the prosecutors’ recommendation and often it’s the district attorney’s office that factors immigration status into punishment.

Hidalgo County District Attorney Rene Guerra said while his office decides recommendation on a case-by-case basis, it typically favors incarcerating defendants living illegally in the United States — especially considering that U.S. officials can’t enforce the probation sentence on an illegal immigrant when he’s not here. Nor are they able to require that the illegal immigrant pays his or her own court costs if they allow a voluntary return option or deportation, Guerra said.

Ultimately, Guerra said, illegal immigrants "are a drag on the system."

But some convicted felons sentenced to probation and deported to their home country have found ways to meet their probation requirements, according to Lopez, the county’s adult probation director.

Though it is not the norm, he said, cases have been closed in which people were deported — they just served out their probation by reporting via mail each month.

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Brittney Booth covers courts and general assignments for The Monitor. You can reach her at (956) 683-4437.

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