Vol. 38, Number 6 — June 2006

Immigration Crisis Tests Federal Courts on Southwest Border

Criminal defendants are herded into a federal courthouse cell in Laredo, Texas, while awaiting a hearing in a magistrate judge’s courtroom. More than 30 defendants at a time may stand before a judge.

"The sad truth is that America has an insatiable hunger for illegal drugs and cheap labor. The southwest border is a gateway for both," Judge George Kazen (S.D. Tex.) said amid a mountain of paperwork in his district court chambers six blocks from Mexico.

Sitting in Laredo, Texas, Kazen is one of the busiest federal judges in America today, his criminal felony docket swollen mostly as the result of heightened law enforcement efforts aimed at illegal immigration.

Federal courts along the southwest border are in crisis mode, contending with criminal caseloads that have skyrocketed since the late 1990s. Drug prosecutions, once the primary cause, have not waned but immigration cases have surpassed them and now drive the unprecedented numbers.

"Additional judges are desperately needed," said Judge W. Royal Furgeson (W.D. Tex.) of San Antonio, who chairs the Judicial Resources Committee of the policy-making Judicial Conference of the United States. "Courts throughout the country have all the work they can handle, but federal judges in the border courts are being worked beyond exhaustion. Congress has to step in and give them relief, the sooner the better."

Not only judges are affected; all in the criminal justice system struggle to keep pace. "You can add Border Patrol agents but if you do, you'd better think upstream. You'd better think marshals, you'd better think prosecutors, probation and pretrial services officers, defense lawyers, judges, and clerk's staff—all of those things," said Judge Robert Brack (D. N.M) in Las Cruces.

Clint Johnson, a federal prosecutor in Las Cruces, agrees. "When you talk about the number of Border Patrol officers and Customs Enforcement officers that are being added to the line, I think that solves part of the problem, if you believe the problem needs more law enforcement," he said.

"However, it's an entire pipeline system. If you're going to increase those resources, the number of arrests are going to increase. Then the number of federal prosecutors needs to increase, your number of public federal defenders, the court staff, the court buildings to handle it," Johnson said.

Some in Congress have heard that message. "We have a crisis on our borders and the status quo is not acceptable . . . .We must have more federal judges," Senator Pete Domenici (R-N.M.), said in comments entered into the Congressional Record in April.

In Las Cruces, Deputy-Clerk-in-Charge Marty Silva reports that taking lunch breaks is rare for members of her staff; working Saturdays and Sundays is common. Robert Kinney, who supervises the federal public defender's office there, says he could add six more lawyers tomorrow and "keep them all with a full caseload."

A defendant has his restraints checked before being led into a federal courtroom. In federal courtrooms throughout the southwest, defendants appear in full body restraints because there are not enough deputy U.S. marshals to ensure security.

Criminal felony cases—those crimes punishable by at least a year in prison—have climbed 287 percent in New Mexico's federal district courts since 1997. Immigration-related felony cases have increased 661 percent in that span.

The average felony caseload (felony cases per authorized judgeship) nationwide is 87. In the District of New Mexico, which ranks first, the average is 405.

The Southern District of Texas ranks third, with an average of 326. But the district's Laredo division, home to Kazen and Judge Micaela Alvarez (S.D. Tex.), carries 2,800 felony cases—an average of 1,400 per judge.

Magistrate judges often handle initial proceedings in felony cases, in addition to handling from start to finish the many more numerous misdemeanor prosecutions. In the first four months of 2006, the two magistrate judges in Del Rio (in the Western District of Texas) presided over 15,586 cases.

In 2005, more than one-third of all federal felonies prosecuted in the United States came from five of the 94 judicial districts—the southwest border courts of the District of New Mexico, the Southern and Western Districts of Texas, the District of Arizona and the Southern District of California. The same appears to be the case in 2006, as "organized chaos" remains part of the daily courthouse regimen.

Not long after dawn, van after van arrive at a secured area of the federal courthouse in Laredo. Their shackled passengers file out in silence at the direction of U.S. marshals. A crowded 70-passenger bus lumbers in and its passengers, most of them wearing orange jumpsuits, join the process.

They have traveled hundreds of miles, from jail cells rented by the federal government all over south Texas, for what will be a brief courtroom appearance. In all, U.S. marshals in Laredo have 2,500 prisoners in custody at any one time.

The men and women are separated into smaller groups and herded to holding cells upstairs to meet the lone defense lawyer who will represent all of them. Then, still fully restrained, they shuffle into a magistrate judge's courtroom, 30 or 40 at a time.

"Security is a main concern," said Alex Ramos, the deputy U.S. marshal in charge of the Laredo division. The overwhelming majority of the prisoners offer no threat of violence, but their sheer numbers make full restraints necessary. "In most federal courts, the ratio of prisoners to deputy marshals is one-to-one or two-to-one," Ramos said. "Here, as it is in most other border courts, it's more like 30-to-one even though we enlist help from other law enforcement agencies."

Most apprehended illegal aliens from Mexico are returned administratively, but those whom the government chooses to prosecute criminally are flooding the federal courts along the southwest border.

Most of the prisoners are Mexican nationals charged with immigration-related U.S. crimes. Before they reach the courtroom they are told, in Spanish or English, about the charges against them and the options they have. Virtually all will plead guilty to a misdemeanor offense. If the crime is illegal entry, they will be sentenced to the short time they have served behind bars awaiting their day in court, and be deported.

In the Laredo division, Magistrate Judge Adriana Arce-Flores (S.D. Tex.) alternates seamlessly between English and Spanish as she addresses the first group of 42 defendants and the government and defense lawyers who play a part in their legal cases. Most of the prisoners wear earphones and rely on a court interpreter when English is used.

"The lawyers are used to the organized chaos," Arce-Flores said after her morning on the bench navigating nearly 100 cases. "We here on the border have learned to be efficient."

One fact should not be overlooked: only a tiny percentage of the illegal aliens apprehended each year (more than 1 million in 2005) along the 1,989 miles of border the United States shares with Mexico ever face prosecution in federal courts. The overwhelming majority are handled administratively by Border Patrol agents and other law enforcement agencies—those apprehended are escorted to the border and told to go home.

A person who enters the United States illegally to look for work and has no other criminal charge pending typically may be "voluntarily returned" to Mexico more than a dozen times before facing the charge of illegal entry. Some did not get into federal court until they amassed 60 voluntary returns.

Citing that reality, Brack said, "I'm not in the policy-making or policy-advising business. I enforce policy. But what I've come to know is that if they were to prosecute everyone they apprehended we would just absolutely collapse under the weight of it."

Rob Johnson, an assistant U.S. attorney in Laredo, cited prosecutorial discretion in acknowledging a startling irony. "As Congress ratchets up the number of agents they have down here creating cases, we increase the number of cases that we dismiss." Noting that unfilled prosecutor jobs exist because of budget constraints, he added, "We can't prosecute any more cases than we already are prosecuting. So, if they increase the number of cases, we're just going to have to dismiss more cases, or not take more cases."

In Las Cruces, federal prosecutor Clint Johnson voiced another frustration—the inability to more aggressively prosecute the criminal organizations behind the illegal drug and illegal immigration trafficking.

"Because of the caseload, we can't always be as proactive as we'd like to be because we're so busy being reactive," he said. "Those cases do exist, we do work them up the ladder. To be very honest, would I like to spend a lot more time trying to work up the ladder to some of these organizations? Most definitely."

As resources pour into those agencies responsible for apprehending illegal immigrants, the rest of the criminal justice system suffers from relative neglect. "We really are part of homeland security," said Anita Chavez, chief of probation and pretrial services for the District of New Mexico. "When you arrest someone along the New Mexico border, my people see them within 24 hours. The impact is immediate."

She adds, "Our biggest concern is that by not having the resources we might miss something, that there is someone coming across the border who is not who he says he is. And we don't have the time to process it appropriately, that the volume is so high we didn't check everything that we should."

Those prisoners who are convicted of, or plead guilty to, more serious crimes—felonies—must be sentenced by a district judge. Judge Frank Montalvo (W.D. Tex.) in El Paso calls it the most important and most difficult task any judge must do.

"Respecting the dignity of any defendant is essential," he said. "I'm duty-bound to follow the law, I've taken an oath to follow the law. If I need to send that person away for 78 months, 98 months, that's what I have to do. But I need to respect that person's dignity.

"I am a judge, not a processor. Any time someone comes before me in a criminal case, the full weight of the Constitution comes into play. Here is where the ‘due process' the founding fathers talked about a couple of hundred years ago gets tested. Here is where the rubber meets the road," Montalvo said.

Elsewhere in the El Paso courthouse, Magistrate Judge Norbert Garney (W.D. Tex.) calls his work a balancing act. "I loathe assembly line justice, but the reality is I can only pull in a certain number of bodies per day, per hour, and process their cases," he said. "I try to give every defendant as much personal attention as I can. I even take questions. But at a certain point, you cut it off or we're going to be sitting here until 10, 11 or 12 every single night."

The effects of stress and the possibility of burnout loom large.

"My heart gets broken several times every day doing this job," Brack said after sentencing several men to prison. "I'm a father and a husband just like these people I'm talking to. I relate to them as a husband and a father, but I'm also a judge. When their efforts on behalf of their family involve breaking the laws of the United States, I have to say ‘basta'—enough."

Montalvo tells his law clerks he expects them to be very tired each Friday evening, "but I also let them know that if they get stressed out we need to talk about it."

It's not only the volume of cases in his court that can be wearing, he said. "There's a misconception elsewhere in the country that everything we do here is routine. This concept is simply misguided. Our caseload is more sophisticated than that."

Judges along the southwest border and those who work for them try hard to do justice in each case, but many judges voice concerns.

"The increase in our criminal caseload, especially in Las Cruces, has caused us to conduct hearings in a way that we've never had to conduct them before, and in a way that other jurisdictions don't have to," said Chief Judge Martha Vazquez of the District of New Mexico.

"We have . . . up to 90 defendants in a courtroom. Our magistrate judges try very hard to conduct these hearings in a way that is understandable to the defendants. But most of our defendants have a first or second grade education in their native countries. Some of them are not even able to read in their native languages. And so, we explain to them their constitutional rights in a legal system entirely foreign to them," she said.

"You line them up in a courtroom that is intimidating even to American citizens, and we ask them to waive their constitutional rights. It is a difficult atmosphere in which to waive important constitutional rights, and to ask them if they understand their rights. Defendants in other parts of the country do not have to give up critical rights in this atmosphere, only in the border districts because of this exploding caseload," Vazquez said.

Visiting federal judges from elsewhere in New Mexico and from other districts around the country help keep the court docket in Las Cruces afloat. But the number of judges who can visit is limited by the costs and a courthouse space crunch. Plans for a new courthouse are on hold, victimized by budget woes.

The court in El Paso likely could qualify for another magistrate judge, but Judge David Briones (W.D. Tex.) reported, "We simply have run out of space." A new courthouse is being built there.

Those under siege know that their caseload reflects a problem of national, not regional, proportions.

"All these drugs are not coming to Laredo. All this stuff is just passing through," Kazen said. "Likewise, the aliens rarely want to come and work cutting grass in Laredo. Most of them are trying to go north. They're ending up all over the country."

Magistrate Judge Richard Mesa (W.D. Tex.) in El Paso sounds the same theme. "Narcotics prosecution here is intended to stop the flow before the narcotics get to the interior of the country. The same applies in the immigration area," he said. "There's a tremendous number of prosecutions brought here, but illegal immigrants are working and living throughout the United States."

In Laredo, Arce-Flores believes border courts are growing accustomed to the unrelenting pace. "But the visiting judges who come to help us, they are shocked," she said.

Chief Judge William Downes of the District of Wyoming has served in Las Cruces as a visiting judge. In Wyoming, he said, he may sentence 75 people a year to long prison terms. In Las Cruces, he has sentenced 50 in a week.

"The challenge that my border colleagues have is astonishing," Downes said. "I'll go down there for two weeks and I go home exhausted. But I can go home. They stay, day in and day out. I don't know how they deal with it. It is unbelievable the work they do. They are my heroes. They are at the front line of this crisis in our country."