Despite 'zero-tolerance' policy, many who cross border are repeat offenders

Produced by La Toya Tooles and Kerri Connolly

NOGALES, Mexico – Men and women recently deported from the United States often sleep here at night among the dead in a pebble-strewn graveyard, a hillside resting place, where winding, dusty trails bisect stone markers decorated with candles, flowers and personal mementos.

But Franklin Alexander Ordonez Ordonez, from the violent Honduran capital of Tegucigalpa, was preparing to sneak back into the United States, his fourth attempt following three U.S. Border Patrol apprehensions. Ordonez said no number of arrests would discourage him from a familiar goal: Find work in America and send money home.

“I’ll try until I make it,” Ordonez, 29, said in Spanish. “It doesn’t matter how many times it takes.”

‘I’ll try until I make it’

‘I’ll try until I make it’

Revolving Door - Franklin Ordonez
Franklin Alexander Ordonez Ordonez (left) is from the capital city of Honduras, considered one of the most violent places on earth. Speaking from a graveyard in Nogales where he sought a shady reprieve close to the Arizona border, Ordonez said he was on his way north and would be trying for a fourth time to enter the country in search of work. He said no number of Border Patrol arrests would be enough to discourage him. “I’ll try until I make it,” Ordonez said in Spanish. “It doesn’t matter how many times it takes.” He does not have family in the United States. Three brothers and sisters are back home in Honduras.

Credit: Will Seberger/For the Center for Investigative Reporting

His repeated arrests are a common story, too. Despite efforts by the Border Patrol to deter migrants from entering the country without authorization and curtail repeat offenses, interviews and data newly obtained by the Center for Investigative Reporting spotlight a revolving door where agents still see many of the same faces again and again.

The number of immigrants caught crossing the border illegally by the Border Patrol is at historic lows, which authorities attribute to bolstered security measures and the faltering U.S. economy. But in more than 21,000 cases last year, agents apprehended border crossers who already had been caught six or more times.

According to the data, more than 100,000 cases involved two or more previous apprehensions. Five crossers had at least 60 apprehensions on their records when nabbed in 2012.

The findings, along with an upcoming report by a senior economist at the Federal Reserve Bank of Dallas, challenge the Border Patrol’s assertion that delivering consequences to offenders – criminal charges in the case of one program called Operation Streamline – can successfully dissuade people who are determined to enter the country.  

First launched in 2005 in the Border Patrol’s Del Rio, Texas, sector by the Bush administration, Operation Streamline became a key enforcement tool. It has been billed as a deterrent because it calls for criminally prosecuting certain border crossers rather than sending them through immigration courts. But its effectiveness at stopping repeat offenders remains in question.
CIR obtained a database of immigration violations under the Freedom of Information Act, and it details about 365,000 immigration apprehensions made by the Border Patrol during the past fiscal year.

During the year, more than 183,000 people were apprehended for the first time, according to the data. Most are from Mexico, but tens of thousands more came from El Salvador, Honduras and Guatemala. They might have been apprehended at other times throughout the year. In nearly 7,000 cases, no information is available on how many times they were caught previously.

Three decades in the U.S.

Three decades in the U.S.

Revolving Door - Raul Alvarado
Raul Alvarado (foreground) said he entered the United States as an 8-year-old and spent 34 years living and working in California. He was deported to Mexico after seeking to renew his green card at a federal building in Bakersfield, Alvarado said. Officials there noted that Alvarado had been convicted of a felony as a young man and ejected him from the country. Alvarado said he then attempted to cross back into the United States alone through the desert but turned himself over to the Border Patrol after the trek turned treacherous. The English-speaking Alvarado is now unsure what to do. “I don’t even have a blanket to sleep in the graveyard tonight.”

Credit: Will Seberger/For the Center for Investigative Reporting

As Congress grapples with the possibility of immigration reform, a key element for some lawmakers is the expansion of Operation Streamline, which the Border Patrol credits for reducing recidivism. Detractors say it’s a costly strategy that jeopardizes due-process rights, clogs federal courts and might not yield results the Border Patrol intends.

For years, the Border Patrol’s strategy has been to discourage crossers with fencing, surveillance technology and an increased number of agents standing watch over the nation’s boundary with Mexico, an approach known as “deterrence.”

“Deterrence is a failed strategy for the Border Patrol, even though that’s what they claim is our main goal,” said Shawn Moran, a vice president of the National Border Patrol Council, a union representing agents. “Displacement is actually what’s happening. We squeeze one area, they show up in another.”

Heather Williams agrees, but for different reasons. A federal public defender in Arizona until recently being named to the Eastern District of California, Williams said deterrence as a public safety tactic is supposed to prevent criminals – fraudsters, rapists and killers – from acting on the impulses of rage or greed. But it’s often family and jobs that fuel border jumpers, she said.

“It’s a desperation to improve one’s economic situation, or they’re returning to the United States because their ties are here,” Williams said.

Senior officials at the Department of Homeland Security laud Operation Streamline as evidence that repeat violators will suffer the consequences with time spent behind bars. Border Patrol spokesman William Brooks said in an email that the agency’s so-called consequence delivery system, which aims to mete out punishment for nearly all unlawful crossers, has been effective, driving down recidivism rates from 24 percent in 2010 to 17 percent last year.

“Breaking the smuggling cycle and reducing recidivism are critical to the Border Patrol’s success in enhancing border security,” he said.

A recent Government Accountability Office report found a similar drop in recidivism between 2008 and 2011. But the watchdog arm of Congress also cited much higher rates than the Border Patrol – a drop from 42 percent to 36 percent. For two Border Patrol sectors in California – San Diego and El Centro – repeat offenders made up the majority of individuals apprehended during 2011.

Variations of the program – at times referred to as a zero-tolerance approach to border security – have expanded since to El Paso, Brownsville, McAllen and Laredo in Texas, as well as to Tucson and Yuma in Arizona, where officials implemented Operation Streamline in 2006.

During 2012, however, more than half of 6,500 cases reported in Yuma were not referred for prosecution, according to a data analysis. In more than 3,000 of those instances, the individual voluntarily returned home or was subject to expedited removal from the country.

Considering another crossing

Considering another crossing

Bandages wrapped the feet and legs of Araceli, who declined to give her last name, as she recovered from injuries at the San Juan Bosco aid center in Nogales. Araceli said in Spanish that she and her husband, Placido, were attempting to cross the border with a group of about 30 other people when her right ankle began to give out and her left leg got caught in a rock crevice. She had to be carried out of the area on a body board by Border Patrol agents, Araceli said. The husband and wife said they previously had lived and worked in Denver performing jobs like landscaping, but sometimes returned to Mexico when family members became sick or to visit. “Quizás,” or “perhaps,” came the answer when Placido was asked if he would consider trying to cross the border again.

Credit: Will Seberger/For the Center for Investigative Reporting

In the Del Rio sector of Texas, where Operation Streamline started, 67 percent, or two-thirds, of the nearly 22,000 people apprehended were referred for prosecution.

But in Arizona’s Tucson sector, 23 percent, or fewer than 1 in 4, of the 120,000 apprehension cases were referred for prosecution, with expedited removal from the country making up most of the cases in which people were not criminally charged.

Across the southwestern United States, that proportion is about the same: About 1 of every 4 people apprehended was referred for prosecution last year.

In a paper due to be published soon, Pia Orrenius, a senior economist with the Federal Reserve Bank of Dallas, reports that criminal prosecutions have a local deterrent effect, but the overall impact diminished as the Border Patrol expanded the program to new areas of the border. Orrenius provided a copy of the report to CIR.

That “suggests that the main effect was to deflect crossers from sectors that had implemented the policy,” she said in an interview. “It’s still questionable whether there is an overall deterrence effect.”

The Justice Department doesn't track Operation Streamline prosecution statistics or the costs associated with the program, said Wyn Hornbuckle, a department spokesman. Nor has it conducted "a systematic evaluation of Streamline's efficacy," he wrote in a statement.

Justice Department officials in the field and a federal magistrate judge who hears volumes of Operation Streamline cases in Tucson remain skeptical of its effectiveness. In an interview, U.S. Magistrate Judge Bernardo Velasco said the drop in apprehensions is “because of the economy. It’s not because of this program. The Border Patrol disagrees.”

“There’s nobody who can tell you if the program is effective,” Velasco said. “You can come up with your biased point of view, your impartial point of view, your favorable point of view and your unfavorable point of view.”

A cycle of deportations

A cycle of deportations

Revolving Door - Eduardo Bolaños
Eduardo Bolaños said in Spanish that he periodically lived in the United States for years and worked everywhere from Kentucky to New Mexico. On an April night, he was staying at the San Juan Bosco aid center in Nogales and said he had successfully evaded the Border Patrol until a cycle of deportations began in 2006. On three recent occasions, he said authorities threatened him with years behind bars, but he actually served days in a lockup. Bolaños said he was not frightened to cross again but would be returning home to the Mexican state of Guanajuato for now.

Credit: Will Seberger/For the Center for Investigative Reporting

Eduardo Bolaños, 38, of Guanajuato, Mexico, said he wasn’t frightened enough to stop trying to cross the border. Each of the three times Border Patrol agents collared him, Bolaños said he was threatened with years behind bars but actually served days in a lockup.

Speaking in Spanish recently from the San Juan Bosco aid center in Nogales shortly after being deported, Bolaños said he already had been caught on several other occasions since 2006 after periodically living and working in the United States since 1999. For now, he said he would return to his home in central Mexico.

Randy Beardsworth, who helped craft homeland security policy during the Bush administration, said the threat of a criminal charge can prompt individuals to voluntarily return home, something he counts as a success for the program.

“That was a desired outcome,” Beardsworth said. “That wasn’t a cop-out or anything. We didn’t have to carry every criminal prosecution through to trial.”

The persistence of some crossers presents a difficult logistical and political problem for the Border Patrol. Conservative lawmakers may wonder why every border crosser without authorization doesn’t immediately face criminal charges.

But prosecuting every border crosser would jam the judicial system, experts say. Operation Streamline, along with other immigration proceedings, already has contributed to a ballooning caseload in federal courts over the past decade. In the five court districts along the southern U.S. border, immigration prosecutions accounted for one-fifth of total criminal defendants during 2012.  

Congressional researchers report that although Operation Streamline “has been described as a zero-tolerance program leading to prosecutions for 100 percent of apprehended aliens, the program confronts limits in judicial and detention capacity.”

Two attempts are enough

Two attempts are enough

Revolving Door - Alonzo Payan Rivera
Alonzo Payan Rivera is from the Mexican state of Sinaloa and said he twice tried to enter the United States in search of work but was caught by the Border Patrol, most recently in the Arizona desert. A bracelet on his wrist signifies that Rivera was criminally prosecuted for violating the nation’s immigration laws under a program called Operation Streamline. Rivera said in Spanish that before he pleaded guilty and received 60 days in jail, he was given just a few minutes to speak with a lawyer. He will not try to cross again, Rivera said. “(My lawyer) told me to accept the charges, because if I didn’t, it was going to be worse for me, they would give me more time,” he said of the guilty plea. “It was just better to sign.”

Credit: Will Seberger/For the Center for Investigative Reporting

That much was clear on an April afternoon in Tucson’s federal courthouse. Fifty-four defendants, still wearing the clothes that Border Patrol agents apprehended them in, spilled over into a jury box, and an acrid smell of stale sweat and desert air permeated the polished courtroom. 

U.S. Magistrate Judge Leslie Bowman then did something unusual for federal criminal justice. She had all 54 people stand before her in groups of four and five – chains at their hands, waists and legs – to face a charge of illegally entering the country after briefly speaking with an attorney.

“Culpable,” came the response in Spanish when each was asked to enter a plea. Guilty. The group received sentences ranging from 30 to 180 days, after which they would be ejected from the country. The hearing was over in less than 90 minutes. 

Down in Nogales, Ordonez, the Honduran migrant, seemed unfazed by the days it took just to reach northern Mexico. Considering the crime and poverty that he said engulfs his native country and the perilous trip north riding trains and evading bandits, another run at the Border Patrol was worth the risk of jail time if agents caught him.

“I’m going to keep trying,” he said.

Shane Shifflett contributed to this report. This story was edited by Robert Salladay and copy edited by Nikki Frick and Christine Lee.

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