Trump administration's 'zero tolerance' border prosecutions led to time served, $10 fees

Brad Heath | USA TODAY

Show Caption Hide Caption Trump stops family separation, but continues ‘zero tolerance’ Amid public outcry over the thousands of migrant children separated from their parents at the U.S.-Mexico border, President Donald Trump signed an executive order to keep families together. Here’s a wrap-up of everything that led to this moment.

WASHINGTON — The Trump administration border crackdown that has separated thousands of children from their parents is built on a mountain of small-time criminal prosecutions that typically end with people sentenced to spend no additional time in jail and pay a $10 fee, according to a USA TODAY analysis of thousands of cases.

The “zero tolerance” push along the U.S. border with Mexico was meant to deter migrants by bringing criminal charges against everyone caught entering the United States illegally. In addition, it served as the legal machinery for splitting children from parents who were accompanying them across the border. Since the crackdown began in May, border agents have separated about 2,300 children from their families.

The administration gave little sign that it would ease that stance Thursday despite an international backlash so intense that even some of the president's allies had threatened to break with the White House. The Justice Department said there would be "no change" in its enforcement push, and Trump insisted the government must to maintain "a very tough policy" along the border.

The crackdown has produced a high-velocity assembly line of prosecutions that has sped thousands of migrants through crowded federal courtrooms to answer for the misdemeanor of having entered the United States illegally.

An examination of thousands of pages of federal court records shows that those cases are seldom more than a symbolic undertaking. In many cases, migrants are taken from an immigration holding facility, bused to federal court, quickly plead guilty to having entered the country illegally, and are sentenced to whatever time they have already spent in the government’s custody and a $10 court fee. Then they're returned to immigration authorities to be processed for deportation.

“There is no reason for the government to do this other than to be cruel and send the message that you are not welcome,” said Marjorie Meyers, the chief federal public defender in southern Texas. “The thing that’s just horrible is that they’re using it to take the children.”

USA TODAY examined 2,598 written judgments in border-crossing cases filed in federal courts along the border since mid-May. In nearly 70 percent of those cases, migrants pleaded guilty and immediately received a sentence of time served, meaning they would spend no additional time in jail. Another 13 percent were sentenced to unsupervised probation, including a condition that they not illegally re-enter the United States. In both cases, that meant they would immediately be returned to immigration officials to be processed for deportation, leaving them in essentially the same position as if they had not been prosecuted.

Still, Meyers and other defense lawyers said that by the time some of their clients returned to the immigration facilities where they had been held, their children were gone.

President Trump on Wednesday signed an executive order instructing officials to attempt to keep children with their parents. But he also left in place the zero-tolerance policy that pushed the parents into federal court.

“We don’t like to see families separated,” Trump said after signing it. “At the same time, we don’t want people coming into our country illegally. This takes care of the problem.”

Exactly how it would take care of the problem remained unclear Thursday. U.S. Customs and Border Protection said in a statement that it "will continue to refer for prosecution adults who cross the border illegally." And a spokeswoman for the Justice Department, Sarah Isgur Flores, said in a statement there had been “no change” in its policy of prosecuting everyone who crosses the border illegally.

Still, defense lawyers said Thursday there were hints the government might have softened its position. Border agents bused 17 people to court in McAllen, Texas on Thursday, then abruptly returned them to an immigration facility without filing charges, assistant U.S. attorney James Sturgis said during a hearing. Meyers said the Border Patrol told her staff that they were taking people who had been caught along with their children off of the docket.

It wasn't clear whether the government might charge them in the future.

"They were not prosecuted today but they are still separated from their children. They're still having to endure the pain of being separated," said Azalea Aleman-Bendiks, a public defender. "Every day that goes by, these children are continuing to suffer the pain of being separated from their parents."

Since the beginning of June, authorities have brought criminal charges against at least 4,174 people for entering the U.S. illegally along the southwest border. Hundreds of others were charged with the more serious crime of re-entering the country after having been deported.

Justice Department officials did not respond to questions about why the government pursues such minor cases so vigorously. Last month, when he announced the crackdown to a gathering of police officials in San Diego, Attorney General Jeff Sessions offered this explanation: “We are not going to let this country be overwhelmed. People are not going to caravan or otherwise stampede our border,” he said.

And he was clear on the consequences of that plan: “If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.”

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Stephen McCue, the chief federal public defender in New Mexico said he doubted the threat of a misdemeanor conviction would be much of a deterrent. “It’s a life or death decision for people,” he said. “No one brings their kids up here just for the heck of it. They come because they have to.”

Federal prosecutors have been bringing those charges against some border-crossers for more than a decade, but seldom did so in cases involving children because of the risk of breaking up families. Even when they didn’t end in much of a sentence, prosecutors used them as a way to identify repeat offenders. “It’s graduated punishment,” said Kenneth Magidson, who was the U.S. attorney in Houston during the Obama administration. “You have to start at square one. Next time it’s going to be more.”

Still, he said, until the start of the administration’s zero-tolerance push, prosecutors had the ability to decline to bring charges if they thought the harm would outweigh the benefit. “When you have a zero tolerance policy on any kind of crime, you take away the discretion that allows us to look at cases individually, to balance the scales of justice,” Magidson said.

The zero-tolerance push has brought a swift increase in the number of minor criminal cases filed in federal courts along the border. The number of criminal filings in some the courthouses in Brownsville, Laredo and McAllen, Texas more than doubled, court records show.

Those records seldom reflect whether the migrants charged with crimes were arrested with their child, let alone whether they were separated or where the child ended up. Defense lawyers said they try to alert judges when people have been separated, but in many cases, the assembly line moves so fast that there’s no record on the courts’ public docket. In at least a few cases, however, judges have ordered the government to do more.

On Monday, agents brought a Honduran man, Mariano Torres-Perdomo, into court to face a misdemeanor charge of entering the country illegally. Border agents had caught him two days earlier crossing into Texas with his 6-year-old son. He quickly pleaded guilty. But court records show that before Magistrate Judge Ignacio Torteya would sentence the man, he demanded to know what had happened to his child. A prosecutor replied that he thought the boy was in San Diego, but couldn’t be sure whether he was in California or Texas.

It took the government until the next day to notify the judge that the boy was in a detention facility in El Cajon, Calif., 1,400 miles away. Torteya sentenced the man to time served and a $10 fee.

In El Paso on Thursday, Josue Saul Aguilar-Sanchez waited in a federal courtroom in handcuffs and a blue jail uniform to find out what had happened to his 16-year-old daughter, who crossed the border with him last week.

His lawyer, Alex Almanzan, peppered a Border Patrol agent with questions abut what had happened to the girl. The agent replied that he did not know anything about where she was being kept.

Contributing: Trevor Hughes in McAllen, Texas; Aaron Martinez of the El Paso Times in El Paso, Texas.