By Elizabeth Hewitt
Wednesday, July 18, 2018

Washington — Arrests of immigrants who have attempted to enter the U.S. illegally through the Canadian-Vermont border have more than doubled.

In the past nine months, 267 people have been apprehended by Border Patrol for being in the country illegally, according to Christina Nolan, the U.S. Attorney for the District of Vermont.

In fiscal year 2017, Border Patrol apprehended a total of 132 people for being in the country illegally.

Court and detention records show that dozens of people have been arrested and held in federal custody in Vermont prisons over the past two months on charges related to illegally entering the country or helping others illegally enter the country.

“There’s been a pretty steep increase lately,” Nolan said.

While Nolan acknowledged there has been an uptick in the number of criminal prosecutions involving illegal border crossings, she says the U.S. attorney’s office in Vermont does not apply the “zero tolerance” policy for illegal entry cases that was put in place by the U.S. Department of Justice in several southwestern districts in April.

The policy, announced by Attorney General Jeff Sessions, required federal prosecutors to file criminal charges against anyone who crossed the United States-Mexico border illegally. Thousands of migrant children were separated from their parents as a result, because children cannot be held in federal prison.

The Trump administration has since halted the practice, and courts have ordered the government to reunite families, though thousands remain separated.

According to Nolan, the rising number of cases in Vermont has been driven by a sharp increase in unlawful activity along the border.

Several cases filed in court in recent weeks involved instances where one or two people faced charges for allegedly smuggling other people who did not have documented legal status in the United States across the border.

Three Guatemalan citizens are currently being held in a state-run prison in Franklin County after they were found in the country illegally. The Vermont Department of Corrections leases 60 beds in state facilities to the federal system, which are used to hold people involved in federal criminal proceedings. An affidavit from a Border Patrol officer details that they were intercepted as they walked through Derby Line carrying backpacks early in the morning of July 1. The affidavit notes they were in violation of a law barring illegal entry into the country — a misdemeanor offense.

Imer Mardoqueo Castillo, who was arrested in a car a short distance away, was indicted last week for attempting to transport the three men after they entered illegally — a felony offense.

In a separate case last Thursday, Border Patrol, alerted to a possible suspicious crossing by a civilian report to the Royal Canadian Mounted Police, stopped a white SUV with out-of-state plates outside of Swanton.

A Border Patrol officer noted in an affidavit that the pant legs of four of the five men in the car were soaking wet up to their knees.

According to court papers, the men, who were between the ages of 24 and 28, told him they had arrived in Canada by plane within the last week. They reported they agreed to pay for help crossing the border, and were directed to cross in an area by their contacts. One planned to go to New York City to pay down a $7,000 debt for the smuggling fee.

One person, Francisco Ramirez Espinoza, is facing charges for transporting the four undocumented individuals after the entered the country illegally. Others are being held as material witnesses, according to court records.

Nolan believes the increase in southbound illegal crossings stems from a change in Canadian policy lifting visa restrictions for people from other countries, including Mexico and Romania.

The Canadian policy shift gives people who are trying to enter the United States illegally another potential route, she said. They can fly to Canada and tap into networks that help people cross the border illegally for a fee.

“I think it’s just a realization that, if we link up with these smuggling organizations who are equal opportunity, for-profit smugglers, that’s one way we can do it,” she said.

Migrants paid thousands of dollars to smugglers, according to recent court affidavits. Nolan said her office is going after those networks.

“We’re trying to respond and be vigilant in upholding the integrity of the border,” Nolan said.

Prosecutors, Nolan said, are trying to “prioritize the people who are making money off of this situation.”

They are focusing on people who have allegedly either played a role in smuggling others across the border, or who are returning to the United States without documentation after they were previously removed from the country, according to Nolan. Both of those offenses are felonies.

However, records show that some of the people apprehended by Border Patrol are being charged for illegally entering the country — a misdemeanor offense.

People apprehended under that statute have often not been criminally charged. Instead, they have been referred directly to civil deportation proceedings.

Nolan said there has been an increase in illegal entry-related criminal cases, which she said is “commensurate” with unlawful activity.

Her office does not pursue charges against everyone who is apprehended under the first-time illegal entry statute in Vermont, she said. Trump has directed Border Patrol along southern border states to adopt a “zero tolerance” policy for illegal entry into the United States.

The “zero tolerance” directive is not in place in the district of Vermont, she said Tuesday, reiterating a point she made about the policy in June.

Nolan declined to detail the strategy prosecutors use when deciding whether to pursue charges for illegal entry or other offenses.

“We make our charging decisions … based on how we think we can best stem the flow of the unlawful activity and work our way up the chain to the people who are profiting by really putting others at risk,” she said.

She said there has not been a shift in the office’s approach to taking on border offenses in recent months, though she noted that there has been more attention to border cases because there has been such a marked increase in the number of cases.

In the past, border cases have made up less than a fifth of the docket in the district of Vermont. They currently represent 30 percent of the U.S. attorney’s docket, she said.

Federal Public Defender Michael Desautels also said he has observed a recent influx in border-related cases, however, over the course of the past 12 years, he has noticed periods when there is a higher frequency of border cases.

New Hampshire immigration attorney SangYeob Kim, who has been involved with cases related to people who crossed the border illegally in Vermont in the past, has observed a recent shift, according to the Vermont Chapter of the American Civil Liberties Union

In the past, people apprehended near Vermont have referred for deportation without criminal charges. Last week, Kim reported, all of the detainees were prosecuted by federal authorities in Vermont.

Jay Diaz, of the Vermont Chapter of the American Civil Liberties Union, questioned the use of resources to prosecute those individuals.

“Regardless of whether the Vermont U.S. attorney is choosing to criminally prosecute more immigrants than before, such prosecutions are a waste of resources and time,” Diaz said. “As in the past, such criminal immigration prosecutions result in the filling of Vermont’s prisons on the taxpayers dime for what used to be considered minor offenses.”

A spokesperson for U.S. Customs and Border Protection confirmed there has been a higher rate of activity in the Border Patrol station headquartered in Swanton Vermont. The sector is responsible for enforcing the border in New Hampshire, Vermont and much of upstate New York.

Malin noted that the region is between large population centers in both Canada and the United States. Boston and New York are nearby in the U.S., while Montreal and Toronto are not far from the border to the north.

Historically, Malin said, the location has made the area a “natural location” for people trying to cross the border illegally.