The US government's crackdown on illegal immigration is resulting in so many more felony charges against foreigners that the federal courts serving the Southwest border are overwhelmed and reaching for the panic button.
The rising caseloads in five US district courts are a direct result of the beefed-up border patrol. Though tighter border security is deterring illegal entry, resulting in fewer arrests, border agents now have the manpower and resources to be vigilant about checking those in custody for criminal connections and outstanding warrants. They are also increasingly filing more-serious felony charges against repeat border-crossers, sending those cases straight to US district courts in the border area.
"The government front-loaded this system," says former immigration judge Joe Vail, now director of the Immigration Law Clinic at the University of Houston. "It has almost tripled the size of the border patrol since 1996, and last year brought in the National Guard, but has done nothing to increase the personnel they need to process and adjudicate these cases, including federal court judges, prosecutors, federal public defenders, plus the support personnel you need to do all this."
View from Judge Vázquez's bench
It's a situation with which Chief Judge Martha Vázquez is all too familiar. From her bench at federal court in Santa Fe, N.M., she presides over the busiest of America's 94 federal court districts. Just last week she was interrupted in her courtroom to deal with a life-threatening emergency involving a prisoner who had agreed to testify against a criminal organization – but had then been jailed with members of that same group.
"It takes a lot of choreography to keep those defendants away from each other, and in this case each agency involved thought the other had taken care of it," a weary Judge Vázquez said during a phone interview late Friday, having directed that the prisoner in question be moved to a safe location. "But this is what happens when our caseloads become huge. There's not enough marshals, enough US attorneys, judges, court officers, courtrooms – not enough of anything."
The US began laying the groundwork for the current prosecutorial overload as far back as 1996, with enactment of the Illegal Immigration Reform and Immigrant Responsibility Act, says Mr. Vail. That law provided funds for the border patrol to more than double the number of agents along the Southwest border. It also introduced what's known as "reinstatement of removal," which means that any illegal immigrant who'd been deported by a US immigration judge – a misdemeanor – would be automatically subjected to reinstatement of that previous order if caught again trying to sneak into the United States. No new hearing before an immigration judge would be needed.
Moreover, under that law the illegal entrant can be charged with illegal entry after deportation, a felony – an option now being applied more often by US Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) officers.
Fingerprinting leads to more cases
An advance in technology also helps CBP and ICE generate more felony arrests. By the end of 2004, all border patrol sectors had been hooked up with the Integrated Automated Fingerprint Identification System. All people detained at the border are fingerprinted, and that digital print is immediately transmitted to the FBI in Washington. Within minutes, a report comes back indicating whether the detainee has been caught and deported before, and whether that detainee has a criminal history.
"It is one of the most useful tools we have," says Gus Soto, supervisory border patrol agent in Tucson. "We're finding that for every 10 people we're apprehending, at least one has a criminal record in the US, and these are people we are, of course, prosecuting."
Tucson is the busiest of the border patrol's Southwest sectors, with the most apprehensions of illegal immigrants and illegal drugs. Although apprehensions are down in Tucson – as well as along the entire Southwest border – the numbers of prosecutions are up.
In March 2007, for example, US agents apprehended 52,688 individuals in the Tucson sector, compared with 63,583 in March 2006. But it processed 559 prosecutions this past March – 64 more than in the previous March.
Prosecutors, defenders struggle, too
The added caseload has challenged a justice system already under strain. The US Attorney's office in Arizona, for example, was essentially under a hiring freeze for the past two years and only now is receiving enough funds to fully staff its offices – and pursue some of these immigration-related cases. The Federal Public Defenders offices are also inundated with clients to represent.
"The system is overwhelmed, and it's a lot harder to provide individualized attention to the client that is, frankly, required of us," says Milagros Cisneros, an assistant federal public defender in Phoenix. "The [government's] emphasis on numbers [of cases referred for prosecution] is making it very, very difficult to do this job."
John Roll, chief judge of both federal district courts in Arizona, feels the full impact of those numbers. "Our plate is full," says Judge Roll. "You can't add an unlimited number of agents and not have additional judicial resources to process those individuals."
He sees a "tremendous difference" between 1991, when he was first appointed to the bench, and now. The federal court in Tucson where he works, which is closer to the border than the US court in Phoenix, handles two-thirds of all criminal cases for the state of Arizona, Roll says. Between September 1996 and December 2006, the federal caseload increased by 94 percent in the state. The federal caseload just for the district court in Tucson jumped 113 percent in that 10-year period. In 1996, there were 1,800 criminal felony filings, and in 2006, there were more than 3,500, Roll says.
Moreover, he adds, while the average number of sentencings per federal judge is 100 a year, each of the five Tucson judges now averages 604 per year.
The Arizona district of the federal court is ranked fourth-busiest of the 94 districts in the number of felony filings per judgeship. The District of New Mexico is ranked first, followed by the District of Western Texas and the District of Southern Texas.
Answer: more federal judgeships?
Sens. Pete Domenici (R) of New Mexico and Jon Kyl (R) of Arizona introduced legislation late last month to create 10 new permanent and temporary federal judgeships for the US district courts to deal with the backlog of immigration-related cases.
"Increasing numbers of apprehensions along the Southwest border have led to a tremendous backlog of immigration-related cases in the federal courts," Senator Kyl said in an April 24 statement. "Adding more judges to the courts where the backlog is the greatest, as this bill does, will help alleviate the burden on our court system."
That help can't come soon enough for Chief Judges Roll and Vázquez. Vázquez says she was confronted with another emergency Friday. She is looking into an allegation that a young man detained and held in a jail along the New Mexico border didn't receive proper medical care and, as a result, his foot had to be amputated.
"I find that disconcerting as a chief judge because we have so many more in our system than it was meant to bear," says Vázquez. "If we decide as a nation we are going to be aggressive with a particular crime, so be it. But the resources have to follow."