Illegal Re-Entry Now Brings Prison Time

Illegal re-entry now brings prison time
U.S. prosecutes more immigration cases in Nashville

By Janell Ross
The Tennessean (Nashville), November 14, 2008

Middle Tennessee's top federal prosecutor says he's stepping up cases against illegal immigrants who are deported and return to the U.S., hoping prison sentences will deter offenders next time.

Beginning in March, U.S. Immigration and Customs Enforcement started asking U.S. attorneys around the country to prosecute immigrants who repeatedly enter the country illegally. The charges can carry a prison sentence from two to 20 years.

Because Nashville has one immigration enforcement program run out of the Metro jail, the Nashville-based U.S. attorney has been able to nearly double the number of illegal re-entry cases he has brought in just two years.

That might sound like a boon to those in favor of tougher immigration enforcement, but the cost, impact and efficiency aren't clear.

'These are the worst of the worst that we are talking about here and people for whom we can see that deportation will not keep them out,' said Ed Yarborough, U.S. attorney for the Middle District of Tennessee. 'It's probably too early to tell if there's been a deterrent effect. But we think we might, over time, see fewer returning to Nashville.'

This year his office has brought about 40 illegal re-entry cases. About five more are pending. That's almost twice the 22 illegal re-entry cases the U.S. attorney's office brought in 2006, before the Davidson County Sheriff's Office launched its 287g program. Named for a section of federal code, it gives local law enforcement more tools to identify arrested persons who are in the country illegally.

'We've been doing these (criminal re-entry cases) all along,' Yarborough said. 'It's just that when 287g came into the picture it got a lot easier to identify people who have already been deported who were back in the country and which ones have serious criminal histories.'

Yarbrough's office could not say this week if it has prosecuted illegal immigrants who served prison time for re-entry, were deported again and ended up back in the U.S. anyway. But prosecutors play a vital role in ICE's Secure Communities Initiative, said Philip Miller, a New Orleans-based deputy field office director who oversees Tennessee and four other states.

'We need to have a credible re-entry deterrent,' Miller said. 'In the past, that hasn't been there.'

He cited a Nashville case as the best reason for prosecuting as many illegal re-entry cases as possible.

A Mexican national arrested for driving without a license and deported in October 2007 as a result of the 287g program is wanted in the September shooting death of a South Nashville store owner. The man did not have an aggravated felony record at the time of his arrest.

How it works

Most of the re-entry cases in Yarborough's office began when a person previously deported was arrested in Davidson County and brought to jail. A Tennessean analysis of the program's first year, which began in April 2007, found that most of the almost 3,000 people arrested were charged with misdemeanors.

Once in jail, Davidson County sheriff's deputies can use the federal databases and training that came along with the 287g program and identify suspected illegal immigrants. They, in turn, pass the information gathered about these inmates along to ICE, which can place an immigration detainer on an inmate.

Once the person has served time on the misdemeanor, the detainer goes into effect and typically leads straight to deportation. But with the stepped-up enforcement with the U.S. attorney's office, those who have an aggravated felony conviction and a previous deportation in their past are ending up in federal court.

That's 98 of the more than 4,000 foreign-born inmates screened through 287g. Yarborough's office has charged or has plans to charge all of them with federal illegal re-entry, a felony that carries prison time.

Some federal court watchers and public defenders are questioning how dangerous some of these defendants really are and whether it's worth the cost of housing them in federal prison instead of simply deporting them again.

Federal prosecutors have limited resources, said Bruce J. Einhorn, a retired federal immigration judge and law professor at Pepperdine University in Malibu, Calif. Prosecuting illegal immigrants who repeatedly enter the country is one way to stop them, he said. But focusing law enforcement attention on illegal immigrants who are involved in organized crime such as gangs, gun, drug or human trafficking might go further to reduce illegal immigration and street crime in the United States, he said.

'I am not opposed to this strategy,' Einhorn said. 'But every time you stop a smuggler, you have probably stopped or prevented the entry or re-entry of a number of individuals who would have used their services or become their victims. That just seems more efficient.'

People convicted of illegal re-entry and deported aren't likely to find conditions in their home country high unemployment and a lack of education, healthcare and food have changed.

Many opt to come back again and take their chances, Einhorn said.

Approach is costly

In the federal public defender's office, attorneys handling illegal re-entry cases say it's not only the 'worst of the worst' that are being charged with illegal re-entry in Nashville. In one case, a defendant had a low-level drug conviction 18 years ago.

The person had been back inside the United States, working and abiding by most laws before being arrested for driving without a license.

'You don't see many cases where someone has committed multiple aggravated felonies and illegally re-entered the country eight, nine, 10 times. Or, at least I haven't,' said Isaiah Gant, an attorney in the federal public defender's office in Nashville. 'From my perspective, the U.S. attorney's office is basically going over to state court with a net.'

Gant who says he is personally concerned about illegal immigration thinks there may need to be a more fine-tuned approach to illegal reentry prosecutions because imprisoning people is not cheap.

'You lock the individual up in federal prison, even though he's no real danger to the public. Now, under the federal system he will probably serve six to eight years,' said Gant. ' He could have just been deported in the first place. He might have come right back, but we would not have spent eight years of taxpayers' money feeding and medicating and clothing the guy.'

Still, federal prosecutors around the country are stepping up these types of prosecution. This fiscal year, 700 of the 1,900 cases brought by the U.S. attorney's office that prosecutes crimes in the Los Angeles area involve illegal re-entry charges filed against convicted felons. In fact, illegal re-entry has become the most often prosecuted crime in that district, said Thom Mrozek, a spokesman for the Central District of California U.S. attorney's office.

'The core of it is that these are people who are not only violating immigration laws by being here but then they commit or have committed crimes while they are here,' he said. 'So, they are a demonstrated threat to the community.'