Illegal reentry prosecutions increase

Immigration statute being applied more widely

By Andrew Clevenger / The Bulletin / @andclev

WASHINGTON — Although immigrants in the U.S. illegally represent a fraction of Oregon’s population, immigration-related offenses constitute the second-highest category for prosecution in Oregon’s federal courts, trailing only drug crimes in number.

Almost one in six federal prosecutions initiated in Oregon in fiscal year 2014 has been for immigration-related charges, with illegal re-entry by far the most common charge, according to Department of Justice figures collected by the The Transactional Records Access Clearinghouse at Syracuse University.

Nationwide, immigration-related offenses accounted for more than half of all federal prosecutions initiated in April, the last month TRAC data was available. During that month, the Department of Homeland Security referred to U.S. Attorney’s offices almost twice as many cases resulting in prosecutions as the Federal Bureau of Investigation, the Drug Enforcement Agency, the Bureau of Alcohol, Tobacco, Firearms and Explosives and the Defense Department combined.

Illegal re-entry constituted the top criminal offense nationwide, just as it had a year earlier and four years before that, according to TRAC figures.

As the law is written, illegal re-entry applies to anyone who has previously been removed from the United States and returns without advance permission, said David Leopold, a criminal defense attorney from Cleveland who specializes in immigration law and is a past president of the American Immigration Lawyers Association. Initially, illegal re-entry was applied mostly to violent offenders who had been deported following a serious crime and then returned to the United States, posing a serious danger to the community, he said. But in recent years, it has been applied more generally, even to people with no criminal histories who often come back because they have family in the U.S., he said.

“(The statute is) very broad, and it’s used very broadly,” he said. “It’s one of the most insidious statutes on the books. We all stand for the rule of law, and want the borders secure. But on the other hand, there’s no common sense to that statute.”

The application of the illegal re-entry law has grown dramatically in recent years. In 1992, 36,564 defendants were sentenced by federal judges, including 670 for illegal re-entry. Two decades later, the number of total defendants had grown to 75,867, and the number for illegal re-entry skyrocketed to 19,463, a 29-fold increase, according to a study published earlier this year by the Pew Research Center, a nonpartisan organization based in Washington, D.C.

The increase in unlawful re-entry cases accounted for 48 percent of the overall increase in cases between 1992 and 2012, the report said.

N. David Shamloo, a Portland defense attorney who specializes in immigration cases, has noticed the increase in re-entry prosecutions during his 20-year career.

“What I’m seeing more and more is that the illegal re-entry cases for non-aggravated felons or criminal aliens have gone up,” he said. “(Prosecutors) are no longer distinguishing between an aggravated felon and someone with a minor record.”

Estimates place Oregon’s population of immigrants here illegally around 160,000 or 170,000, or less than 4.5 percent of the state’s total population.

“Illegal re-entry cases have been prosecuted by the U.S. Attorney’s Office in the District of Oregon for some time,” said Billy Williams, criminal division chief for the U.S. Attorney’s Office of Oregon. “Prosecution of previously deported individuals who have been convicted of criminal offenses for qualifying aggravated felony convictions continues to be a priority in the District of Oregon.”

Many defendants are the children or grandchildren of migrant workers who came to work farms in Oregon and settled down, said Shamloo. The younger generations often grew up and went to school in the U.S., but find themselves deported after a minor brush with the law, he said.

“They’re not what we used to think of as undocumented folks who used to be migrant workers,” Shamloo said. “I see them employed in all walks of life. They’re working everywhere.”

After deportation, most often to Mexico or Central America, they return to America for the same reasons that have driven countless immigrants before them, Shamloo said: safety, family, economic opportunity, and the American way of life.

“These are often heartbreaking cases. The federal crime is simply being here after a deportation,” said Steve Sady, the chief deputy in the Oregon Federal Public Defender’s Office, which handles many illegal re-entry cases. “‘Here’ is often where the person grew up and where the family lives. Sometimes they have lived here since they were small children.”

Allegra McLeod, a law professor at Georgetown University who has written about the convergence of immigration and criminal law, offered two possible explanations for the nationwide increase in illegal re-entry prosecutions.

One reflects “a general societal turn towards addressing an array of social problems in the United States through criminalization and punishment,” she said. It could also be attributable to “the desire, on the part of this administration, to create political space for comprehensive immigration reform by demonstrating a ‘get tough’ approach on enforcement.”

“We are treating as criminal what is effectively a civil regulatory violation,” McLeod said.

Defense attorney Leopold agreed that President Obama wants to appear tough on crime, but questioned the value of creating “an assembly line of felonization” by indiscriminately applying the illegal re-entry law without considering additional factors, such as lack of serious criminal history and family ties in the U.S.

“If we felonize the very people who are going to benefit from immigration reform, we are solidifying a class of people who have strong ties to this country, and will never come back or will be forever undocumented,” he said.

The relative ease of prosecuting illegal re-entry cases makes it tempting to bring as many as possible, since caseload is a consideration when determining budgets, he said.

“The prosecution case is no different than a traffic violation. It’s paperwork,” he said. “U.S. Customs and Border Protection (receives) a huge amount of money, and they’ve got to justify their existence. How do you justify your existence better than (with) statistics?”

Leopold urged U.S. Attorney General Eric Holder to offer guidance for what types of illegal re-entry cases justify federal prosecution.

“I have a hard time believing that tax dollars are being well used when a dishwasher, waitress, or construction worker is felonized and removed” from the country, Leopold said. “The quality of these prosecutions — meaning the type of people who are prosecuted — are basically dishwashers.”

— Reporter: 202-662-7456, aclevenger@bendbulletin.com