Under Zero Tolerance, Illegal Border-Crossers Can Be Treated More Harshly Than Their Smugglers

The Trump administration’s zero-tolerance approach to immigration has led to lose-lose situations for so-called material witnesses – people who have been smuggled into the United States but help prosecutors build cases against their smugglers, often in exchange for not being prosecuted for their own illegal entry into the country.

Some material witnesses have been kept in Border Patrol stations for weeks before they receive a first court hearing, as prosecutors and U.S. Marshals struggle to manage the surge in immigration prosecutions that began in the spring. That creates a perverse situation in which people who aren’t being charged with a crime are actually treated more harshly than those who are, attorneys say.

In other cases, the typical material witness deal is off the table – and people who entered the country illegally with the help of a smuggler are charged with a misdemeanor crime, while the smuggler escapes a felony charge. Defense attorneys say this is a result of prosecutors prioritizing illegal entry misdemeanors over smuggling felonies under zero tolerance.

Prosecutors can arrest and detain witnesses to crimes in order to secure their testimony for criminal proceedings, under a material witness legal statute. Material witnesses still have a Fifth Amendment right to not have to provide self-incriminating information, and the right to an attorney. Though they’re not charged with a crime, witnesses are still arraigned in court so that they can be informed of their rights, understand the nature of the proceedings they’ll take part in and be given instructions by the court.

The U.S. attorney’s office said it has not changed the way it handles alien smuggling cases since the implementation of zero tolerance.

“We evaluate every case for the appropriate charges under the circumstances and have not implemented any broader policy changes for charging alien smuggling cases,” said Kelly Thornton, spokeswoman for the U.S. attorney’s office in the Southern District of California.

Data from the Transactional Records Access Clearinghouse, a research center at Syracuse University, shows that alien smuggling prosecutions in the Southern District of California are down roughly 20 percent from one year ago.

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On July 30, Border Patrol agents encountered a vehicle near Interstate 8 around Ocotillo with three unauthorized immigrants who had recently crossed the U.S.-Mexico border, according to a report of the incident.

One of the people being smuggled, Kevin Herrera-Salas, told agents that the group had entered the United States near Tecate, Mexico, by walking through the mountains. A guide left them there for days and they had walked to the highway to turn themselves in. Then a woman stopped and agreed to give them a ride – the woman was driving the vehicle when they were apprehended.

Herrera-Salas said he “did not know where she was taking them and that they were not paying her any money,” according to the report.

Human smuggling is a broad charge. According to the Immigration and Nationality Act, criminal penalties for human smuggling or “bringing in and harboring certain aliens,” can result from knowing someone is undocumented and encouraging them to enter the United States illegally, helping them do so, transporting them across the border or housing or hiding them in the United States. Commercial gain isn’t required to be charged with the crime.

The driver, a U.S. citizen, was placed under arrest for alien smuggling.

A search of public federal court filings of the driver’s name turned up no charges in the past several years, and the three individuals who were being smuggled were each charged with illegal entry misdemeanors. Most of the time, if cases don’t show up on the court’s public filing system, PACER, it means they weren’t filed. There are, however, some circumstances where they wouldn’t show up, like if the case was sealed for privacy or other reasons.

Border Patrol confirmed that it charged the driver administratively with alien smuggling – a process outside of the criminal justice system. An administrative charge would mean that Border Patrol would take some action against the driver, rather than referring the person for prosecution in court, but it’s not clear what that action was.

A defense attorney representing one of the unauthorized immigrants charged in the case said that how Border Patrol decided to deal with the driver is telling.

“This is an attempt by the agent to ‘smooth over’ the fact that he elected not to charge the driver and send the case to the U.S. attorney for prosecution,” said Paul Turner, who is representing Maribel Maldonado-Jaimes, who was charged with an illegal entry misdemeanor, in an e-mail.

Turner pointed out several things he said were wrong with the way the case was handled: The driver wasn’t prosecuted for alien smuggling, and the individuals in the car are being charged with misdemeanors, rather than being used as material witnesses in a felony case against the driver. Nor was he given key information about the driver, like her date of birth or contact information, in case he wanted to call her as a witness. He said it’s part of a larger pattern of prosecutors prioritizing illegal entry misdemeanors over felony charges.

“Despite the constitutional mandate for separation of powers, this is clear evidence that the enforcement, prosecution and the judiciary is allowing the executive branch to dictate its ‘zero tolerance’ policy toward minor immigration offenses to take precedence over more serious offenses such as smuggling and transporting offenses,” Turner said.

All three of the individuals smuggled pleaded guilty to illegal entry misdemeanor charges and were given time-served sentences, meaning they were immediately released from criminal custody and turned over to immigration officials to be returned to Mexico.

Even those smuggled individuals who have been used as material witnesses – and are not facing any criminal prosecution, but are helping the government build cases against alien smugglers – have faced unusual problems since the start of zero tolerance.

As the courts, prosecutors and the U.S. Marshals adjust to the surge in illegal entry misdemeanor defendants, material witnesses have languished in Border Patrol stations before their arraignments for weeks. Whereas defendants accused of crimes have a right to a prompt initial hearing, material witnesses have no such rights. That has set up a situation in which the people who aren’t being charged with a crime are actually being held in custody without a hearing longer than those who are.

In June, attorney Stacey Kartchner asked Magistrate Judge William Gallo to dismiss her clients who were being held as material witnesses in a smuggling case.

Her five clients, including one minor, were arrested on May 31 and were held in Border Patrol stations for 16 days before being transferred to U.S. Marshal custody. Border Patrol stations are not equipped to detain people long-term, a fact driven home by Kartchner’s filing. She provided a declaration describing the conditions her clients endured while in Border Patrol custody and further described the conditions in her motion to dismiss the case:

While there, they were not allowed to shower, they were not given anything for personal hygiene (no toothbrush, toothpaste, soap, or shampoo), and they were not given a change of clothes.  Moreover, they slept on the floor on a thin mat with a light blanket.  One of the material witnesses ripped his blanket, but was told by a guard not to ask for another one because he would not get it. The facility was so cold that the Material Witnesses dubbed it the “ice box.” Further, according to the Material Witnesses, they were only given three burritos and two crackers per day. They complained of being hungry all of the time. Additionally, they were not allowed outside at all for the first nine days.  Moreover, according to one of the Material Witnesses, “there were two toilets up against the wall expose to everyone in the same room where we slept.”  In addition, the lights were always on, even during sleeping hours.  Finally, they were not allowed to make even one telephone call.

By the time Kartchner was assigned as the individuals’ legal representative, they’d already been in custody for 15 days, she wrote in the filing.

“Material Witnesses in the Southern District of California are experiencing conditions of confinement that amount to punishment at the Ports of Entry and Border Patrol Stations,” Kartchner wrote. “These facilities are not set up to handle dozens of arrestees for stays of weeks at a time (lengthy stays in violation of their due process rights).”

In one of the Border Patrol stations where Katchner’s clients were held, they shared a cell with approximately 35 people, she wrote. In another, they were detained with roughly 59.

Border Patrol has previously told Voice of San Diego it cannot comment on allegations about conditions in its stations, since the issue is currently being litigated.

A Customs and Border Protection document laying out its national standards for transportation and detention state that the agency’s facilities are not meant to hold people long-term, but that people detained there are supposed to be provided with a change of clothes, showers and phone calls, among other things.

“There was a 19-day delay in the Government presenting the Material Witnesses to a Magistrate Judge, during which time the Material Witnesses were held at Border Patrol stations without contact with counsel or their families (not even the minor material witness E.H.G.),” Kartchner wrote. The minor was in the care of Southwest Key, a nonprofit that runs three shelters for unaccompanied migrant minors in San Diego County.

Kartchner noted that this wasn’t just an issue with her clients, but is becoming a systemic problem in the district. She cited another case in which a material witness wasn’t brought to court for arraignment for 20 days, despite repeated inquiries and requests from his lawyer.

In that case, the witness was arrested on May 25, and was not arraigned in court until June 14.

“Not bringing material witnesses before this Court in a timely manner is becoming a real problem in this District,” she wrote. “Material Witnesses are not getting near the level of protection that Defendants are getting, and they are witnesses.  Do we really want to give less protections to witnesses than we do to defendants?  I think not.”