For Immigrants Who Return After Deportation, Little Chance at Due Process, Say Advocates

Despite increased risks of jail time or deportation without a hearing in immigration court, deported immigrants still struggle to return to the United States.

In 2007, Anibal Fuentes Aguilar left the United States to see his parents in his native Guatemala one last time before they died. The 27-year-old had been in Chicago without papers since he was 16, and knew that getting back into the country after leaving would be difficult. But he had crossed the border before, and besides, he had five of his six brothers waiting for him in the Chicago neighborhood of Albany Park, a port of entry for refugee and immigrant communities from all over the world.

Aguilar spent two years in Guatemala, long enough to see his parents pass away and reappraise the economic situation, finding it dismal. He headed north. After several attempts to cross the border in Texas, including an encounter with the Border Patrol that ended in deportation in San Antonio in 2009, he made it back to Chicago in 2010.

Aguilar went back to Albany Park, picked up his work as a day laborer, got married and had a child. Then, on December 13, 2013, officials who may have been immigration agentsknocked on his door, ostensibly looking for someone else. Aguilar says he opened the door, believing they were from the Chicago Police Department.

The encounter ended with Aguilar being given a deportation order. Because he had previously been deported, he would not be heading to immigration court, where there wasa chance that a judge would consider his ties to the country and grant him the opportunity to stay. Instead, he was given an immediate deportation order.

This order is known as a reinstatement of removal, and in recent years it has topped the list of reasons for deportation orders issued by Immigration and Customs Enforcement (ICE). In 2013, 43 percent of detainees – 159,524 people – removed by ICE were issued a “reinstated final order of removal,” according to ICE data analyzed by the Immigration Policy Center.

Aguilar’s story isn’t unique, say community organizers who helped build support around his case. As the Obama administration nears or possibly surpasses a record two million deportations, while many undocumented immigrants reach milestones of having lived in the United States for 10 or 20 years, deported immigrants are increasingly returning to the United States, despite the risk of jail time or summary deportation if caught.

“The reason they return is because their family is here,” says Gaby Marquez-Benitez, domestic worker program coordinator at the Latino Union of Chicago, an organizing center for day laborers and domestic workers in Chicago’s Albany Park neighborhood. Many of the day laborers are immigrants, likely undocumented, and it’s not uncommon for them to have been deported and then cross the border back into the United States. “A lot of individuals have families and have been here at least for several years,” Marquez-Benitez told Truthout.

There is also the economic reality in the home countries of immigrants. A 2013 report by Migrant Peacebuilding and Reconciliation Project, a non-profit working with Guatemalans deported from the United States, described immigrants’ return as a product of long-term regional inequality. “Certainly many forced returnees seek to reunite with family and friends in the United States or are drawn by the better wages and standards of living. For those who have spent significant time in the United States building connections and developing a set of skills specific to the US labor market, the economic and personal pull of the United States is considerable. These reasons . . . are an unfortunate consequence of a national and regional inequality that disenfranchises an economic underclass which it has largely served to create,” the report said.

After months of community organizing by immigrants’ rights groups and day laborer organizing networks, as well as a denied request for prosecutorial discretion through the Chicago ICE office, immigration authorities granted Aguilar a six-month stay of removal. It will expire in September, but his lawyer is confident that Aguilar has a chance to apply for DACA, or deferred action for childhood arrivals, an administration program offering a temporary work permit for undocumented immigrants who came to the United States as minors.

But most immigrants who return after a deportation and then come in contact with Border Patrol or ICE don’t even get that far. Both along the border and inside the country, the stakes are rising.

Immigrants Returning to the Border Face Criminal Charges for Immigration Violations

For deported migrants looking to get back into the United States, the environment has never been more punitive than it has been in the past several years. A growth in enforcement along the southern border has pushed migrants into further reaches of the desert, which in turn has led to a more dangerous crossing. Between 1998 and 2012, according to the Washington Office on Latin America, fatalities on the border have nearly doubled. For those immediately deported, they are often left to fend for themselves in dangerous border cities where the struggle between drug cartels and the Mexican army rages, and penniless migrants make easy targets.

Those who are deported and make it across a second time, only to be caught again, face a different threat. The first time an immigrant enters the country and is met by Border Patrol, they are charged with a petty misdemeanor. For entering the country a second time, an immigrant can be charged with a felony. This comes with a 20-year-entry bar, and about two years of jail time. In the first six months of fiscal year 2014, “illegal re-entry” charges were higher than misdemeanor entry charges.

“Illegal re-entry” prosecutions have been driving the growth in immigration cases in federal court, accounting for nearly half of the growth in individuals sentenced in federal court, compared to 22 percent of the growth driven by drug convictions. Research conducted by the Pew Center put the number of immigrants tried for “illegal re-entry” in 2012 at 19,463, a 28-fold increase from 1992. In the same time period, the federal prison population more than doubled, reaching 75, 867 in 2012.

They’ve also changed the racial composition of federal prisons. From the Pew report:

In 1992, Latinos made up 23 percent of sentenced offenders; by 2012, that share had grown to 48 percent. Over the same period, the share of offenders who did not hold US citizenship increased from 22 percent to 46 percent. Among federal sentenced offenders in 1992, 12 percent were unauthorized immigrants. By 2012, that share had increased to 40 percent.

According to the Transactional Records Access Clearinghouse (TRAC), a data collection project run out of Syracuse University, the average prison sentence where an “illegal re-entry” was the lead charge was 14 months, compared to 1 month under the “illegal entry” misdemeanor charge. Together, they make up over 90 percent of immigration charges prosecuted criminally, TRAC found.

Under the Obama administration, more immigrants have been charged for “illegal re-entry,” and therefore are often jailed at taxpayer expense, than under previous administrations, according to TRAC. Many of these have happened under Operation Streamline, a controversial Border Patrol program that “streamlines” – charging immigrants with criminal convictions by trying up to 40 at once. In some cases, public defenders represent up to 50 immigrants a day, and rarely have more than 30 minutes to explain the process and consequences to their clients.

The increasing prosecution of criminal charges at the border has come in concert with a slow decline in the absolute numbers of migrants stopped at the border, with migration, from Mexico in particular, reaching a net zero in 2012. Other migrants, particularly unaccompanied minors and those from Central America, are increasingly fleeing violence, which some argue makes them prime candidates for asylum.

The Pew report attributes the transformation to a 2005 policy decision to severely curtail “voluntary return” as an option for migrants stopped by Border Patrol. This would leave immigrants with a formal misdemeanor order against them, the thinking went, and minimize the likelihood of return.

But despite this, what drives immigrants stopped on the border to come back are often connections made while living in the US, said Isabel Garcia, executive director of Coalicion de Derechos Humanos, a Tuscon-based advocacy group. Garcia, who is also a public defender in Pima County, Arizona, said she sees “every single human story you can imagine” driving people across the border. But for those who already have a deportation and are facing jail time, “coming back to join their families, to go back to their jobs,” is a key factor.

Inside the Country, Reinstatement of Removal Bypasses Immigration Courts

When an immigrant is detained by ICE inside the country, the charge is not a criminal one. Instead, it is called a reinstated order of removal. A “reinstatement of removal” falls into Priority 3 of ICE’s three priority categories under a 2011 directive issued by John Morton, then-head of US Immigration and Customs Enforcement, which detailed an executive order to help direct ICE agents regarding who should be a priority for deportation, and who should not.

For fiscal year 2013, reinstatement of removals made up the largest charge against immigrants who were deported by ICE. In the Chicago area of responsibility where Aguilar was detained by ICE, which includes Illinois, Indiana, Kansas, Kentucky, Missouri and Wisconsin, 8,300 people received reinstatements of removal between October 2007 and September 2011, according to data obtained by the Chicago Reporter.

Though reinstatement of removals are the lowest priority level – Priority 3 – they are also among the easiest charges to prosecute, said Cesar Cuauhtemoc Garcia Hernandez, an immigration attorney and visiting professor at the University of Denver. “We are seeing an increase in the number of reinstatements because those are just easy removals for ICE,” Hernandez told Truthout. “They don’t have to go through any formal proceeding; they don’t have to go before an immigration judge. It allows ICE simply to rely on the existence of a removal order to send somebody out of the country.”

For someone like Aguilar, who believed he had a compelling case to stay despite having been previously deported, this meant he had no chance to plead his case before an immigration judge. He was granted his six-month stay on his second appeal to ICE, after the first was rejected.

“The obstacle that migrants face when they have a negative order of removal is that the process works so quickly, there is no time to talk to an attorney who might advocate on their behalf,” Hernandez said.

Only 30 percent of people Department of Homeland Security reported last year had a hearing at an immigration court. Along with reinstatement of removal, immigration authorities also use expedited removals to order deportations without an immigration court hearing. Under expedited removals, detained immigrants are asked to sign a piece of paper which will immediately allow them to leave ICE authority, but also waives their right to a hearing in immigration court and has them agree to a deportation.

The Immigration Policy Center estimates the entire process – from apprehension to deportation out of the country – can take less than 24 hours. “Such summary processes raise serious due process concerns given the inherent risk of arbitrary, mistaken, or discriminatory conduct that can occur in the absence of adequate deliberation and oversight mechanisms,” the Washington, DC-based advocacy group said in a post noting a drop in court-ordered deportations.

Hope for Changing Priorities?

“People who are being pushed into criminal re-entry charges or reinstatement are really the same people,” says Hernandez, a Denver-based attorney. “They are almost indistinguishable except for where they were apprehended by agents.”

For many advocates, neither of these groups should be a priority, even the lowest priority, for ICE enforcement.

The highest profile call for an end to prosecuting people who reentered the country has come from John Sandweg, previously a director of ICE. In a March 2014 op-ed in the Los Angeles Times titled “Who should be deported?” Sandweg argues that “Homeland Security’s Immigration and Customs Enforcement division, known as ICE, should eliminate ‘non-criminal re-entrants and immigration fugitives’ as a priority category for deportation.”

In his article, he echoed the reality stated by many activists and organizers who work with immigrant communities: “Many of these people have been in the United States for a decade or more. They often have spouses who are US citizens and have never been convicted of a criminal offense. Frequently, they were deported years earlier and returned to this country to reunite with their families. As a result, focusing ICE’s effort on them disproportionately separates parents and children, breadwinners from families, spouse from spouse.”

The Obama administration has hinted at a willingness to change immigration enforcement priorities through executive action in light of the continued political deadlock over immigration reform. The administration is considering removing immigrants who ICE says are repeat immigration violators from the list of priorities, a change which the Associated Press estimates could keep tens of thousands of immigrants from facing deportation.

Sandweg, in an interview with the Los Angles Times, also said he had pushed for the change while director of ICE, and believed it was currently under consideration by the administration.

However, the mixed results of other Obama administration executive orders have left some activists skeptical. The responses in the immigrant community to the deferred action for childhood arrivals program have been mostly positive, though the years undocumented young people spent locked out of education and full-wage jobs still haunt them.

Prosecutorial discretion as described by John Morton in his 2011 memo, however, has been shown to be sparingly used by ICE agents.

The other Congressional action, prosecutorial discretion as mentioned above, has been shown to be rarely applied. Only 6.7 percent of cases in immigration court between October 2012 and March 2014 were closed on the basis of prosecutorial discretion, according to the Transaction Records Access Clearinghouse. Meanwhile, deportations continued to follow primarily immigrants with minor, or no, criminal histories.

It’s unclear whether the changes proposed by the Obama administration will also help immigrants being criminally prosecuted for re-entry at the border, along with those who face deportation after being detained by ICE inside the country. The Senate immigration reform bill, for example, called for $250 million in funding to increase prosecutions of migrants along the border, and would have increased the maximum penalties for both “illegal entry” and “illegal re-entry.”

“I do not see very much political will at the national level among elected officials to reduce the use of criminal prosecutions,” said Hernandez. “On the contrary, what we are seeing is a greater emphasis and reliance on criminal prosecutions. It’s hard for elected officials to take a position that they are going to reduce penalties, as they believe people don’t get elected that way.”

However, Hernandez said, “I do see advocates making the argument that it is unjustifiable to criminalize conduct that essentially consists of nothing more than coming to the country without the government’s permission. It may be illegal but that doesn’t mean it justifies imprisonment or the stigma of a felony status.”

The American Immigration Lawyers Association has several suggestions for changes they would like to see to enforcement measures, including using prosecutorial discretion for people who have family or strong community ties in the country, as well as limiting removals without an immigrant going before an immigration judge.

Meanwhile, an immigration movement previously divided between those who were in favor of comprehensive immigration reform and those who were not has coalesced to call for an end to deportations.

Aguilar sees his future tied up in the success of this fight, and plans to be a part of it.

“Every time I look at my son I wonder how much longer I will have to see him. Can President Obama imagine how that feels?” he said. “The president has the power to close my deportation case and keep me with my son. He has the power to keep families together.”