May 22, 2013

III. Criminal Prosecutions Impinge on the Rights to Family Unity and to Seek Asylum

My heart is there. My body is here.
— Juan S. (pseudonym), Tijuana, Mexico, October 22, 2012
For 10 years now, I've been presiding over a process that destroys families every day and several times each day.
—Judge Robert Brack, Las Cruces, New Mexico, April 25, 2013

Nearly every person charged with illegal entry or reentry who spoke to Human Rights Watch said they came to the United States for one of three reasons: 1) to seek work; 2) to reunite with family, often after many years of residence in the United States; or 3) to flee violence or sometimes persecution abroad. For purposes of prosecution under the US statutes prohibiting illegal entry and reentry, the motives with which people seek to enter the US are irrelevant. But their motives for entry highlight why criminal prosecutions may be misguided and, in some cases, impinge on fundamental human rights.

International human rights law acknowledges that every country has a clear interest in regulating the entry and stay of migrants in its territory, and it does not explicitly prohibit the use of criminal sanctions against unauthorized immigrants. However, United Nations human rights experts have emphasized the importance of using civil rather than criminal law to accomplish this task. The UN special rapporteur on the human rights of migrants has noted, “[Irregular entry or stay] are not per se crimes against persons, property, or national security.” [105] Moreover, “[ir]regular entry or stay should never be considered criminal offences.” [106] Likewise, the UN Working Group on Arbitrary Detention has determined that “criminalizing illegal entry into a country exceeds the legitimate interest of States to control and regulate irregular immigration and leads to unnecessary detention.” [107]

The criminal prosecution of unauthorized migrants raises particular concerns where the migrants in question have been separated from their children or other close family members by deportation, and when they may be eligible for asylum under international refugee law. In each case, when there is no genuine threat to public safety, the United States has chosen to criminally prosecute conduct that undermines rights that the government appropriately has an interest in protecting and promoting, namely the rights to family unity and to seek asylum from persecution.

Though this chapter focuses on these two categories, we note there are also serious questions about whether criminal sanction and incarceration are appropriate punishments for migrants seeking work. In several cases Human Rights Watch documented or observed, defendants spoke about dire economic needs, often for medical or education expenses. One man we met in a Texas jail, who was facing a likely sentence of 8 to 14 months in federal prison for illegal reentry after prior illegal entry and reentry convictions, asked his attorney, “Can we ask the judge for less time because my children have nothing to eat?”[108]

Family Unity

The stereotypical migrant who enters the US illegally is a young, single man seeking work. But increasingly, such migrants are older and have previously lived in the United States, sometimes for many years. Many are trying to rejoin their families, including US citizens and permanent residents.[109]

Staff at a women’s migrant shelter in Tijuana reported that the large majority of migrants they see are no longer people who are trying to cross for the first time, but people who were recently deported, [110] a trend also noted by staff at a humanitarian organization that aids migrants in Nogales. [111] A recent study of 1,000 Mexican deportees found that one-fourth said they had US-born children and 28 percent considered the United States home. [112]

Human Rights Watch has requested but not yet received information from ICE and CBP on ties to families in the United States among the unauthorized immigrants they have referred for criminal prosecution, but recently released data indicates that in the past two years, over 205,000 parents of US citizens were deported.[113] That number does not include the many deportees with US citizen or permanent resident spouses, parents, or siblings.

Article 17 of the International Covenant on Civil and Political Rights (ICCPR), to which the United States is a party, states that no one shall be “subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.”[114] Article 23 provides that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the state,” and that all men and women have the right “to marry and to found a family.”[115] The UN Human Rights Committee, the international expert body that monitors compliance with the ICCPR, has stated that despite a state’s power to regulate entry or residence, non-citizens may still enjoy the protection of the Covenant, particularly when considerations of respect for family life arise.”[116] The right to found a family, the Committee has noted elsewhere, includes the right “to live together.”[117] Even where the government has a strong interest in deporting an individual because of the non-citizen’s prior criminal convictions, the right to family unity should be weighed against the seriousness of the offenses.

Yet family ties are given little weight in US immigration law in determining whether a person should be deported, and even where they may be a factor, most non-citizens have little opportunity to provide evidence of such ties.[118] Once a non-citizen is ordered removed by an immigration judge, he or she is barred from the United States for at least 10 years—or, if deported for certain criminal convictions, for life. These life-changing decisions are made in immigration court hearings that may raise serious due process problems (including no right to appointed counsel), as previously documented by Human Rights Watch,[119] or outside of proceedings altogether, through “stipulated removal,” which non-citizens have subsequently reported they were pressured or misled to accept, even when they might have been eligible to apply for permission to stay.[120] Susan Anderson, an assistant federal defender, reported that three-quarters of her clients charged with illegal reentry had been removed without ever seeing an immigration judge.[121]

Immigration law is also particularly harsh on those who have long lived in the US without status, leave the US temporarily (often to visit a sick or dying relative), and then try to enter again illegally; such individuals’ prior unlawful stay bars them from the US regardless of family ties. [122] For the vast majority of these people, there is no legal way to return and if apprehended, they are often put in expedited removal proceedings that ignore the fact that they have been long-term residents, making them ineligible for certain kinds of relief from deportation.

Not surprisingly, non-citizens who are barred from returning and separated from their families are highly motivated to reenter the United States illegally. When they do return, many end up prosecuted for illegal entry or reentry. Those most desperate to be with their families return again and again, undeterred even by repeat prosecutions and long prison sentences. The University of Arizona study of 1,000 Mexican deportees referred to above found that more than half said they were going to try to cross again; 70 percent who considered the US home indicated they would keep trying to enter. [123] In several cases we documented, defendants who had served federal sentences for illegal reentry stated they did not plan to try again, because they feared getting more time if they returned. But others remain undeterred and end up serving back-to-back criminal sentences. Said one criminal defense attorney, “There’s a class of people doing life sentences on the installment plan.” [124] Alicia Estrada, whose brother is mentally disabled and has repeatedly reentered illegally, recognized the pull his family had on him: “If we stay here, we’re going to see my brother live his life in jail.” [125]

In criminally prosecuting non-citizens who have been separated from their families for illegal entry and reentry, the US government is giving insufficient attention to the right to family unity, a fundamental human right. The laws creating criminal penalties for illegal entry and reentry provide no exceptions for individuals whose motive is to rejoin their children or other close family members, and the agencies whose decisions lead to prosecutions also do not to take these ties into account. As Candis Mitchell, an assistant federal defender, noted, “The guy who is coming in to reunite with family is treated as just as culpable as someone who is paid to bring drugs into the US.” [126] The failure to protect family unity begins with US immigration law, and that law needs to be reformed. But the use of federal criminal law against those seeking reunification with their families also undermines this fundamental human right.

“They didn’t take a minute to look at her situation ... [to ask] why are we separating her from her family”

Rosa Emma Manriquez with her US-born grandson. © Private

In March 2012, Rosa Emma Manriquez, a 62-year-old grandmother, was sentenced to four months in federal prison for illegal entry. She is now living in Ciudad Juarez, Mexico, several hundred miles and a world away from her six adult children and numerous grandchildren, who are all US citizens or permanent residents.

According to her daughter, Norma Pulcher, Manriquez was told from childhood that she had been born in Texas and was a US citizen. Although she had no birth certificate to prove it, she had lived without incident in the US for over 40 years, living a quiet life that revolved around cleaning houses, going to church, and being with her family. She had a Social Security number and a valid Texas drivers’ license, which she had used for years to travel to Juarez to visit or shop.

In the fall of 2011, Manriquez went to Juarez for dental work. On her way back, she was stopped at the port of entry in El Paso, Texas. According to the complaint, she presented her driver’s license and said she was a US citizen, as she always had. She was charged with illegal entry based on a false claim to US citizenship. Pulcher and her siblings hired a criminal defense lawyer, but she said, “[H]e did nothing for my mom. My mom said he never even talked to her, just once before the court, and he told her that if you want to be free, you just need to plead guilty. He never told her that pleading guilty meant she was going to be deported to Mexico.” Manriquez was deported immediately afterward.

With no family in Juarez, Manriquez tried to return two months later with false documents. This time, after pleading guilty again to illegal entry, she was sentenced to four months and transferred from the jail in Pecos to the Federal Detention Center in Houston. The entire process was horrifying to her family. Pulcher described how her eight-year-old son Christopher cried at the sentencing hearing when he saw his grandmother’s hands shackled to her feet. 

Being in jail in Pecos was hard on Manriquez, Pulcher told Human Rights Watch. She was taken to the emergency room at one point when she experienced shortness of breath, and was diagnosed with high blood pressure and anxiety disorder. But the federal detention facility in Houston was even worse. “She said it was very rough,” Pulcher said. “Never, never in her life had she been in one of these places, the Christian lady in federal prison.... Every time I went to see her, all of us would cry. She would start crying so bad, she’d start shaking.”

Manriquez now lives in Juarez alone. All the lawyers her family has consulted have said the same thing: because she pled guilty the first time, all doors were closed and she would never be able to come back to the United States.

 

Rosa Emma Manriquez at a family dinner with her US citizen daughter, Norma Pulcher. © Private

When her mother was deported, Pulcher felt like “she had died,” and she began to be treated for depression. She continues to worry about her mother’s safety in Juarez and has considered moving to Mexico to be with her mother, but she cannot make that decision for her husband and her son.

Pulcher lost her stepson last year; he died while serving in the US military in Afghanistan. Before he died, he had tried to help the woman he considered “granny” by contacting his congressional representative. Pulcher is angry that the US government has taken her mother away from her as well: “It doesn’t matter how much pain and suffering children and grandchildren are going through, it didn’t touch [the US officials’] hearts. They didn’t take a minute to look at her situation ... [to ask] why are we separating her from her family?” [127]

There is no data yet available on how many unauthorized immigrants referred for prosecution have US citizen or permanent resident children or other close relatives, but the defense attorneys, judges, and prosecutors we interviewed all said that many of them do have immediate family members who are US citizens or permanent residents. Estimates varied from district to district, but in Los Angeles and San Diego, where there are few prosecutions for illegal entry but many prosecutions for illegal reentry, several defense attorneys estimated that 80 to 90 percent of their clients charged with illegal reentry have US citizen family members.[128] When asked how often he sees illegal reentry defendants with US citizen family members, Judge Robert Brack in Las Cruces, New Mexico estimated he sees it in 30 to 40 percent of his cases, adding, “It’s an everyday occurrence.”[129]

Individuals charged with illegal entry are less likely to be returning to join US families, but even among these defendants, ties to US citizen or permanent resident family are not uncommon. When asked about clients’ ties to US citizen families, Heather Williams, who represents six clients every day she is on duty for Operation Streamline in Tucson, said, “All six clients a day, they’re coming here usually to reunite with family members or because their situation is so desperate.” [130] In the course of this research, Human Rights Watch observed Streamline hearings in Tucson, Arizona and Brownsville and Del Rio, Texas, as well as numerous hearings outside the Streamline process; we observed many defendants tell the judge that they had previously resided in and have immediate family in the United States. [131]

A significant number of these defendants also appeared to have strong ties to the United States based on their having have been raised in the country. Human Rights Watch observed several defendants in hearings speak fluent English and participate without the help of an interpreter, which Magistrate Judge Philip Mesa noted is “not unusual.” In his experience, “One or two out of ten will be English-speaking. There are defendants who don’t speak Spanish, who grew up in the US.” [132]

Defendants who grew up in the US from a young age, whose entire families are in the US, and who have no ties to the countries of their birth are so common, the US Sentencing Commission in 2010 amended the sentencing guideline to recognize “cultural assimilation” as a valid reason for granting a lower-than-guideline sentence, to be considered in cases where, in part, “those cultural ties provided the primary motivation for the defendant’s illegal reentry or continued presence in the United States.”[133]

Nearly every defense attorney interviewed, however, stated they had rarely seen judges cite this provision in granting lower sentences. Because there are many defendants in this situation, reducing sentences every time someone has strong family ties arguably would defeat the purpose of the guideline, which aims to set the sentence for the majority of defendants. For example, in ruling on a case in which the defendant had grown up in El Paso since the age of 10 and had parents, siblings, and children in the US, the judge noted, “Unfortunately, the Court sees a number of illegal aliens who come into the United States around age 10, and the Court has trouble distinguishing [the defendant] from the many others before the Court.” [134] Angela Viramontes, an assistant federal defender in Riverside, California, said she had heard a judge tell her colleague, “If I apply it in this case, I’d have to apply it to all cases.” [135] Defense attorneys also noted that “cultural assimilation can be a double-edged sword,” [136] as judges sometimes see these very ties as evidence that the defendant is likely to come back and should be more harshly sentenced in order to provide a stronger deterrent.

Human Rights Watch acknowledges that many illegal reentry defendants with strong family ties have prior criminal convictions in the United States, and human rights law recognizes that the privilege of living in any country as a non-citizen may be conditional upon obeying that country’s laws. But as we have previously documented, the US government regularly withdraws that privilege without adequately weighing family ties, evidence of rehabilitation, and other factors against the seriousness of the criminal offense. [137] In the vast majority of deportations for criminal convictions, the non-citizens are deported for nonviolent offenses. [138] No matter how many years have passed since the offense was committed and no matter how minor the offense was, it is almost impossible for non-citizens deported for criminal convictions to enter the United States, even for a visit, regardless of family ties.

For example, Heather Gonzales, a US citizen, reported that when her husband, Elmer Gonzales, applied for permission to reenter the United States, the interviewing officer initially was positive. “[He said], ‘I’m going to get you back home, I think I can, your case is good, you’re a good guy, I can tell, you haven’t been convicted of anything for over a decade’—it had been 15 years,” she told Human Rights Watch. “And then the supervisor comes back [and says,] ‘You’re never coming back.’” [139]

“Whether they deport her or release her … we’re still a family”

Benny Lopez is a 38-year-old US citizen born in Kansas. He and his wife, Gabriela Cordova-Soto, have four US-born children. Until Christmas 2011, the family lived in a comfortable home in Wichita, Kansas, where Benny had a successful siding and remodeling business. In September 2012, when Human Rights Watch met him, he and his children were sharing a cramped apartment in a small Texas border town, waiting to find out if Gabriela will ever be allowed to return to the US.

Gabriela was nine months old when she was brought to the United States. She is now 35. She was a legal resident and grew up in Texas and Kansas, where she and Benny met. Benny said that in their twenties, he and Gabriela were hanging out with the wrong crowd and got into drugs. Gabriela was convicted of possession of methamphetamine in 2005. Benny was a US citizen and he went into drug treatment, but Gabriela, who was put on probation and did not serve any time in prison, was deported. In November 2005, she lost her status as a legal resident and was told she was permanently barred, as an “aggravated felon,” from returning to the US.

With only distant relatives in Mexico and no real experience living there, Gabriela soon returned to the United States to be with her family. [140] Benny said, “We just changed our whole lives.” Benny started a successful business and began building a new home. Their twin daughters regularly made the honor roll; their oldest son was a star chess player. For five years, said Benny, “We were going to church every Sunday, on Wednesdays. We were just living life like we should be.”

Benny Lopez (right) and his four US-born children, in their Texas apartment, near the Mexican border. Their mother, formerly a permanent resident of the US, was deported after a conviction for drug possession. Lopez uprooted his family from his native Kansas to be closer to his wife. ©2012 Grace Meng/Human Rights Watch.

In 2010, immigration authorities came to their house and arrested Gabriela again. The fact that she had changed her life did not matter for immigration purposes, and she was deported again—even though in the meantime, the Supreme Court had ruled a drug possession conviction like Gabriela’s did not constitute an “aggravated felony.” Benny tried to maintain two households, but it was too difficult, and he gave up his business and the house he had just finished building. He and the children moved to Piedras Negras, Mexico, just on the other side of the border, so the family could be together. But Benny and his children were unable to live a productive life in Mexico. They do not speak Spanish and Benny could not earn enough money to support the family. When Benny’s truck was stolen, he suspected drug traffickers were responsible; the police would not investigate.

Benny and the children returned to the United States. When Gabriela tried to join them, she was caught and prosecuted for illegal reentry. She has been in federal jail since September 2012. “Whether they deport her or release her here legally, we’re still a family,” Benny said. “I can’t just leave their mom. I know it’s hard on the kids. What am I to do? I don’t know what to do.” [141]

The impact of family separation and prosecution falls not only on the defendants themselves, but also on their US family members. Firdaus Dordi, an assistant federal defender in Los Angeles, estimated that in 12 years of practice, among his clients alone, about 6,000 US citizen children have likely been directly affected by illegal reentry prosecutions of their parents. [142] For Heather Gonzales, whose husband and father of their two children was deported and then prosecuted for illegal reentry, when the US government “took away one illegal person, they ruined the lives of three US citizens.” [143]

Several defendants told Human Rights Watch that they had come back because their deportation had been hard on their children, the impact varying from depression and decreased performance in school to abusive conditions that could have led them to end up in the custody of the state.

Artemio Lechuga-Lechuga, for example, whom we interviewed in the federal detention center in El Paso, Texas, told us he came back to the US because his 16-year-old daughter, a US citizen, is mentally disabled and recently had become pregnant. [144] His wife, a permanent resident, agreed that their daughter “started showing signs of depression more strongly … [and] things got worse” when her father was deported in 2010. [145] The rest of his family was suffering as well. He was concerned about his sons, including his 13-year-old who was starting to get in trouble with the police and using drugs. Without his income, his wife was unable to make the mortgage payments on their house, so she and the six children were about to lose their home. Although the only offenses on his record apart from illegal entry and reentry are traffic violations, he is permanently barred from gaining legal status through his wife, in part because of mistakes an immigration lawyer made in 2000. [146] He now has a felony conviction for illegal reentry, as well as a misdemeanor conviction for illegal entry. [147]

Others reported how the pain their deportation had brought on their parents and siblings compelled them to return. Roberto Huerta Huerta, a former permanent resident who had lived in the US since he was 14, said that he was deported after a conviction for possession of one gram of cocaine. According to the complaints in his two cases for illegal reentry, Huerta had tried to reenter and been removed six times. [148] He wrote in a letter while serving a one-year sentence,

[My mother] already had a heart condition when I got arrested and by the time I was deported her condition worsened to the point where she was constantly being hospitalized. This last time I crossed the border line was to see her because I was afraid she might die and I would not be able to attend her funeral.”[149]

Huerta also left a son behind in the US. He told us that when his son was killed, he was unable to go to the funeral. [150]

In several cases, defendants or their attorneys reported that they had returned to the US because of specific family emergencies. Heather Williams recounted a case in which her client returned illegally because his permanent resident wife was dying of cancer; he had been denied permission to enter temporarily, and he wanted to arrange for his oldest daughter to take legal custody of her younger siblings. [151] In another case, a judge in a 2011 illegal reentry case in New Mexico gave a below-guideline sentence, noting that there was strong evidence the defendant had returned to the United States because of reports his children were being sexually abused. [152]

In several cases, people cited fear of losing custody or seeking to regain custody of their children as a reason they returned. Yanir Pioquinto Cruz, interviewed while serving a Streamline sentence in Florence, Arizona, reported he had entered illegally because he had heard that his US citizen wife, struggling with a drug addiction, had lost custody of their five children to the child welfare system in Atlanta, Georgia. His goal had been to keep his parental rights and return with his children to Mexico. [153] Maureen Franco, an assistant federal defender in El Paso, recounted the case of a client who had been told by a caseworker that if he did not come get his children, they would end up in foster care. [154]

 “Though I’m in jail here, I feel closer to my kids than I did there, free”

Roberto Lopez, called Robert, first came to the United States when he was three years old and grew up in Los Angeles, California. He has four US-born children; his mother and siblings live in the United States as well. He is now 28 years old and spoke fluent English in a calm, low voice when we interviewed him in a federal detention center. He is currently serving a sentence of four-and-a-half years for illegal reentry. [155]

Despite living in the US since he was a toddler, Robert has no legal status. In 2006, after being put into removal proceedings for a criminal conviction for assault, Robert left the United States and moved to Mexico under a voluntary departure order. He found life in Tijuana hard. He worked two jobs but could not make enough to send money to his family in the US. Like other Mexicans who had lived in the United States for many years, he reported being regularly harassed by the Mexican police.

Three of Robert Lopez’s US-born children. © Private

Robert Lopez and his US-born daughter. © Private

Still, Robert stayed in Tijuana for several years, believing that an application for permanent resident status for him was pending in the US. (He did not know that his criminal conviction could make it nearly impossible to return.) But then his mother told him his wife Amanda had developed a drug addiction. He told Human Rights Watch, “You hear all this bad news [in Tijuana], and you feel like you’re in jail because you’re incapable of doing anything.” Robert worried that his children could be taken away from his wife and end up in foster care. So in 2010, he tried to return. He was caught at the border and deported in his first attempt, but he made it to Los Angeles the second time.

Robert said that for a year he worked and visited Amanda regularly at a rehabilitation center. But he suspected his wife was still using drugs. Robert filed for divorce, sought custody of their children, and was granted emergency custody. He said, “That’s when my wife called immigration.”

Robert said that he had pleaded guilty in 2003 on the advice of his public defender, who said he would only receive two or three weeks in jail, and Robert did not think it would lead to deportation. Instead, he received a one-year sentence and served 11 months. He has no other criminal convictions. But under the federal Sentencing Guidelines, a single prior conviction for a “crime of violence,” whether stemming from a fight or from murder, can lead to a significant prison sentence. His sentence of four-and-a-half years for illegal reentry is over four times as long as the time he served for his assault conviction 10 years earlier.

Robert does not regret coming back to the US. His children are now in the custody of his mother. He wishes that his 54-year-old mother, who works seven days a week as a housekeeper, could rest instead of raising four kids, and he is sorry to have “left her with a big responsibility.” But at the same time, “Even though I’m in jail here, I feel closer to my kids than I did there, free.” He reports his children are “happy, they’re healthy.” When he asks them if they want to go back to their mother, they say they would rather stay with their grandmother.

What Robert’s children do not fully understand is why he is in prison. “My oldest daughter, she asks me, ‘Did you commit a crime?’ And I say, ‘I came back for you.’” [156]

Immigration law separates these families, but the federal criminal system makes the situation even worse for families. As Jorge Luis Lopez-Duran wrote from prison, where he was serving a 100-day sentence for illegal entry,

The emotional and economic [impact] that my detention has had on my loved ones, especially my children is incomprehensible.... In school they are being taught that criminals belong in prison for not obeying the laws. In some sense they see me as a criminal but in another sense, they see me as their father … whose crime is wanting to be with his children. [157]

Over and over, defendants and their family members expressed a desire for a process that would allow them to enter the US and reunite with their family legally. Heather Gonzales wished there could be some probationary period in which her husband, despite his criminal record, could have stayed in the US legally: “We do have to implement the law, but in a way that families who have been here and people who are being productive can remain here to still have a family, and still be productive in the community as they have been.”[158]

 “An 11-year-old girl needs her mother”

After living in the United States for over 20 years, Sonia H. (pseudonym) went to Mexico, not to move back to the country of her birth but to bury her son, a Mexican police officer who had been killed in a roadside shootout. Sonia, 50, shared her story while sitting in a jail in Marfa, Texas, awaiting sentencing for an illegal reentry conviction.

When Sonia’s son was killed in 2011, she felt she had to go to Mexico to bury him. But, Sonia said, “My whole life is in the US.” Her other son, a US citizen, had petitioned for her to gain legal status, and she had been saving money to pay for the second part of the application. She and her long-term partner, a permanent resident, were raising an 11-year-old daughter, also a US citizen. Sonia had a good job at a dry cleaner, where the owners valued her so much they drove her to and from work, since she could not get a driver’s license as an unauthorized immigrant.

In January 2012, Sonia tried to return to the US illegally using false documents and was immediately caught and convicted of illegal entry. According to her current attorney in Texas, the federal judge in the earlier case recommended that she not be deported, but he had no power to enforce that recommendation. Thus, after serving 45 days in jail for her illegal entry conviction, she was deported immediately through expedited removal. She said a Border Patrol agent told her to “sign here.” If she had been put into regular removal proceedings, she might have been eligible to apply for cancellation of removal, an application for legal status in which her many years of residence in the US and the impact of deportation on her US family would have been considered by an immigration judge. Sonia had never been in trouble with the law before. “I never even drove without a driver’s license,” she said.

Sonia moved her daughter to Mexico and they tried to live in Chihuahua, her home state, but Chihuahua is one of the Mexican states most affected by crime and violence related to drug trafficking. Sonia said there were shootouts in front of her daughter’s school and rumors that kidnappers were targeting schoolchildren as potential victims. She said her daughter begged her, “Mommy, let’s go, let’s go.” Sonia’s sister encouraged her to try, saying, “Your daughter is suffering.”

Sonia’s daughter, as a US citizen, was sent to California, but when Sonia tried to join her, she was caught again and charged this time with felony illegal reentry, as well as fraud. “I realize I committed a crime presenting false papers,” Sonia said. “But I only did it for my daughter’s sake.”

Sonia was glad that her daughter is safe in California, but she had heard her daughter was having trouble sleeping and concentrating in school. She also had a new fear, that child protective services might take her daughter away from her father because he has a drinking problem. Her voice broke as she said, “Imagine what will happen to me if I lose my daughter after I lost my son.”

According to Elizabeth Rogers, the supervisory assistant federal defender in the Alpine, Texas, office, Sonia exemplifies recent changes in how federal criminal law is being applied in immigration cases: “Four years ago, [Sonia] wouldn’t have been prosecuted.” [159]

Sonia’s daughter did not know her mother was imprisoned, and thought she was in Mexico waiting for permission to return. Sonia talked to her once a week, using phone cards that cost her $20 for 15 minutes, and her daughter kept asking her, “Are you going to come? When are you going to come?” Sonia described a card her daughter had sent her to send to President Obama, which said, “My mom had to go back to Mexico because my brother was killed. If you had that happen, what would you do? All I ask is that you let my mom be with me. An 11-year-old girl needs her mother. If you refuse, then I ask God to forgive you.” [160]

Asylum Seekers

In recent years, Mexico has seen a staggering increase in violence related to Mexican government efforts to combat organized crime. The widespread crime, as well as abuses committed by the Mexican security forces, have had a tremendous impact on Mexican society, including on many who have no ties to illegal activity.[161] According to recent figures released by Mexico’s federal government, over 70,000 Mexicans were killed from December 2006 to December 2012 in drug-related violence, and more than 26,000 people went missing or were “disappeared” in Mexico during the same period.[162] Virtually none of these serious crimes have been adequately investigated and prosecuted; less than 2 percent of crimes reported in Mexico lead to convictions.

Not surprisingly, US federal defense attorneys, particularly along the Texas-Mexico border, report that an increasing number of their clients say they entered the United States because of fear of violence. In several cases documented by Human Rights Watch, citizens of Central American countries also cited fears of ongoing violence as a reason for coming to the US. Defendants in 14 out of 73 cases documented by Human Rights Watch cited crime, violence, or persecution in their home countries as a reason for trying to enter the United States, while several defendants currently in prison said the same in letters to us. [163] Norma Ramirez told Human Rights Watch that her brother, a former permanent resident, has served a total of over 13 years in prison for three reentry convictions: “The way things were in Juarez, with all the violence and all the shootings, he preferred being incarcerated here.” [164]

The use of the federal justice system to criminally prosecute individuals who are fleeing violence abroad would seem to be a misguided and wasteful expenditure of prosecutorial resources. The problems were highlighted in three cases reported to Human Rights Watch in which defendants said that men associated with organized crime had actually compelled them to cross the border. One defendant, Robin Whiteley, even won his case at jury trial, one of the few times a defendant has ever been acquitted of illegal reentry.[165]

Even more problematic is the potential impact on asylum seekers. Not all persons who fear returning to Mexico or another country have a fear of persecution that would support a claim to asylum under US law.[166] However, based on our research, Human Rights Watch believes that prosecutions for illegal entry or reentry may include a number of defendants with a colorable claim to asylum. The Universal Declaration of Human Rights, which is considered reflective of customary international law, provides that everyone has a right to seek asylum from persecution.[167]

The criminal prosecution of individuals fleeing violence or persecution at home is problematic for at least two reasons. First, the prosecutions impede the asylum process, which is intended to assist the most vulnerable migrants.[168] Criminal prosecution and incarceration can delay asylum applications, exacerbate trauma or psychological problems, and potentially discourage people from pressing their asylum claims at all. Thus, illegal entry and reentry prosecutions can be at cross purposes with another goal of US immigration law—the recognition and protection of genuine refugees.

Second, charging such individuals with illegal entry or reentry contravenes a fundamental principle of international refugee law: asylum seekers should not be penalized for using improper means to enter the country where they are seeking asylum. Article 31(1) of the 1951 Refugee Convention states, “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”[169] The protections of article 31 have been interpreted to include asylum seekers (those whose claims have not yet been adjudicated) because it cannot be determined at the point of entry whether the person qualifies as a refugee or not.[170]

Ordinarily, when a US Border Patrol agent apprehends a non-citizen who expresses a fear of returning to his or her native country, CBP is supposed to refer the individual to a US Citizenship and Immigration Services asylum officer, who will provide a “credible fear interview,” in which the non-citizen is given a chance to explain his or her fear. If the person passes the credible fear interview, the case will be referred to an immigration judge for proceedings to determine whether he or she should be granted asylum or another form of relief under international law.[171] If an asylum seeker has been previously removed, however, CBP would refer the person to a “reasonable fear interview,” which has a higher standard of proof, but also allows the asylum seeker to eventually have his or her claim reviewed by an immigration judge.[172]

Edgar Holguin, an assistant federal defender in El Paso, stated that in his experience, this approach is not consistently followed. Instead, most of those who have been previously deported are referred for criminal prosecution before being given a reasonable fear interview.[173] Some of the cases we investigated support this view. Maira Alvarado, the wife of Joel Reyes-Isais, told Human Rights Watch that she and her husband entered the United States together after beatings and threats from the police in Ciudad Juarez. When they were apprehended, Alvarado had just fallen from a bridge and suffered serious injuries—a broken nose, broken leg, and fractured skull—and was taken to the hospital. She said her husband told Border Patrol, “We’re running because the police of Juarez are trying to kill us,” but he was referred for criminal prosecution without a reasonable fear interview.[174] Reyes had been previously removed after a conviction for a drug offense in 2007 and so spent four months in federal jail awaiting sentencing for illegal reentry before he was transferred to immigration custody, where he was finally able to request asylum.[175]  Advocates elsewhere in the United States have recently reported encountering cases in which CBP appears to have conducted inadequate screening for fear of persecution during apprehensions along the southern border.[176] 

“A lawyer can’t help you with nothing”

Brenda R. (pseudonym), a 45-year-old former long-term resident of Dallas, Texas, has tried three times to return to the United States because of her fears of staying in Mexico. Each time, she says, she was criminally prosecuted and given no chance to apply for asylum.

In April 2012, Brenda’s two adult non-citizen sons were killed in Mexico. They had grown up in the United States, but one was deported to Mexico and the other had gone back voluntarily. They were living together in a small town in the state of Chihuahua, a site of considerable drug-related violence. Brenda said her sons were not involved in any criminal activity, but one had befriended a woman said to be the girlfriend of a local drug trafficker. After receiving threats, Brenda’s son and his brother decided to leave town, she said. But before they could leave, they were gunned down in the parking lot of a bar.

Brenda traveled to Chihuahua to bury her sons. She said, “I [also] went to investigate.… When I got [to the crime scene], there were still blood stains and bone fragments of my sons.” Fighting back tears, she said, “I felt [one of my son’s] presence saying, ‘Please, mom, take me from here … please bring me home.’” She started to ask questions about the investigation and filed a formal complaint with the Chihuahua state human rights commission. She hoped it would help bring some attention to the case, even though local residents and the police warned her to stop her inquiries, stating it was too risky for them to investigate the case.

When Brenda tried to return in June 2012 to her husband and two US-citizen children in Dallas, Texas, Border Patrol apprehended her and referred her for criminal prosecution for “illegal entry.” She said she tried to explain her fear of returning to Chihuahua, but the agent just told her “sign here.” She was convicted, spent five days in jail, and then (according to court documents) was returned voluntarily to Mexico. A month later, she tried again by presenting a friend’s border-crossing permit in El Paso and was charged with document fraud. Brenda said, “I described my fear. I cried with immigration.” Her husband tried to get her a lawyer, but she said the Border Patrol agent responded, “The lawyer can’t help you with nothing.” She was convicted of document fraud, sentenced to nine days in jail, and deported by expedited removal soon afterward, according to court documents.

In September 2012, Brenda tried to cross again and was criminally prosecuted and convicted of illegal entry, as part of the “Retributive Justice Initiative.” She was serving her 60-day sentence when we interviewed her, and she continued to struggle with the trauma of what had happened to her: “Every time I close my eyes, all I see is the photos of [my sons] shot and … in their caskets.” [177]

In addition to the trauma criminal prosecution and incarceration may impose on asylum seekers, an asylum seeker who is not given a credible fear interview before being prosecuted and deported faces significant challenges to seeking refugee protection, including longer waits in detention and a higher standard of proof once his or her asylum claim is heard.[178]

The case of Juan Alanis-Gonzalez provides an example. Family members told Human Rights Watch that Alanis-Gonzalez had been repeatedly kidnapped and assaulted by organized crime groups in Matamaros, Mexico; his attorney showed Human Rights Watch photos of injuries he allegedly suffered in the attacks. When he tried to reenter the United States shortly after one such attack, Border Patrol apprehended him and referred him for criminal prosecution because he had been previously deported. A federal judge deemed him incompetent to stand trial and sent him to a facility in North Carolina for psychological treatment. Thirteen months later, US Marshals returned Alanis-Gonzales to Brownsville, Texas for continued prosecution,[179] and he was sentenced to prison for 21 months, a sentence he will have to complete before even starting the process of seeking protection as a refugee.[180]

The rapidity with which most illegal entry and reentry cases are prosecuted can also have a particularly severe impact on asylum seekers. As described in greater detail in the next section, the volume of cases has led the Department of Justice to institute a national policy in which “Fast-Track” plea agreements are offered, with substantially reduced sentences, to most illegal reentry defendants. In about half the federal districts, these agreements require the defendants to waive their right to immigration remedies.[181] In at least one district court, in Phoenix, Arizona, the standard plea agreement goes even further to specify, “The defendant admits that he does not have a fear of returning to the country designated in the previous order.”[182] Milagros Cisneros, an assistant federal defender in Phoenix, expressed concern that 30 days—the amount of time defendants have to decide whether to accept the agreement—is insufficient for an attorney to investigate a potential claim for asylum.[183] For one client of Kari Converse who expressed a fear of persecution, the choice seemed clear: accept the plea deal or risk a much higher sentence. Converse’s client was able to eventually have a hearing on his claim before an immigration judge.[184]  

Consistent with US and international law, asylum seekers should be able to seek asylum “irrespective of [their] status,” which means at any time and regardless of any plea agreement.[185] However, we remain concerned that these plea agreements may discourage asylum seekers from continuing the application process, particularly if they are offered as part of a fast Streamline proceeding.[186]

[105] UN Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, Francois Crepeau, UN Doc. A/HRC/20/24, April 2, 2012, http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A-HRC-20-24_en.pdf (accessed May 10, 2013), para. 13.

[106] Ibid.

[107]UN Human Rights Council, Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/7/4/, January 10, 2008, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/100/91/PDF/G0810091.pdf?OpenElement (accessed May 10, 2013), para. 53.

[108] Human Rights Watch interview with Jorge G. (pseudonym), Marfa, Texas, September 21, 2012; Human Rights Watch court observation, El Paso, Texas, September 26, 2012.

[109] Damien Cave, “Crossing Over, and Over,” New York Times, October 2, 2011, http://www.nytimes.com/2011/10/03/world/americas/mexican-immigrants-repeatedly-brave-risks-to-resume-lives-in-united-states.html?pagewanted=all (accessed March 27, 2013).

[110] Human Rights Watch interview with Mary Galvan, Instituto Madre Assunta para Mujeres Migrantes, Tijuana, Mexico, October 16, 2012.

[111] Human Rights Watch interviews with Sister Alma Delia Isais Aguilar, Nogales, Mexico, April 4, 2013; and with Sister Maria Engracia Robles, Kino Border Initiative, Nogales, Mexico, April 5, 2013.

[112] Center for Latin American Studies, University of Arizona, “In the Shadow of the Wall: Family Separation, Immigration Enforcement and Security, Preliminary Data from the Migrant Border Crossing Study,” March 2013, http://las.arizona.edu/sites/las.arizona.edu/files/UA_Immigration_Report2013web.pdf (accessed April 14, 2013). See also Michael Danielson, “Documented Failures: The Consequences of Immigration Policy on the US-Mexico Border,” Kino Border Initiative, Jesuit Refugee Service/USA, Jesuit Conference of the United States, February 2013, http://www.jesuit.org/jesuits/wp-content/uploads/Kino_FULL-REPORT_web.pdf (accessed May 2, 2013) (finding almost one in three parents deported between January and March 2012 had at least one child living in the United States).

[113] Seth Freed Wessler, “Nearly 205K Deportations of Parents of US Citizens in Just Over Two Years,” Colorlines, December 17, 2012, http://colorlines.com/archives/2012/12/us_deports_more_than_200k_parents.html (accessed January 22, 2013).

[114]International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States on June 8, 1992, art. 17.

[115] Ibid., art. 23.

[116] UN Human Rights Committee, General Comment No. 15, “The position of aliens under the covenant” (Twenty-seventh Session, 1986), UN Doc. HRI/GEN/1/Rev.1 at 18 (1994), para. 5.

[117] UN Human Rights Committee, General Comment No. 19 (The Family), Protection of the Family, the Right to Marriage and Equality of the Spouses (Thirty-ninth session, 1990), UN Doc HRI/GEN/1/Rev.6 at 149 (2003), para. 5.

[118]Under Immigration and Nationality Act Section 240A, a form of relief called “cancellation of removal” is available for unauthorized immigrants who have resided continuously in the United States for 10 years and can demonstrate that a US citizen or permanent resident parent, spouse, or child would suffer exceptional and unusual hardship, a standard that requires hardship beyond the usual hardship suffered because of deportation. This form of relief is available only for 4,000 individuals per year. A similar form of relief is available for permanent residents, with no cap. But the standard of “exceptional and unusual hardship” is hard to meet, and people with certain criminal convictions are barred from these waivers. About 8,000 unauthorized immigrants and permanent residents were granted cancellation of removal in fiscal year 2011, representing about 2 percent of all persons removed in that year. US Department of Justice, Executive Office of Immigration Review, Office of Planning, Analysis, & Technology , FY 2011 Statistical Year Book, February 2012, http://www.justice.gov/eoir/statspub/fy11syb.pdf (accessed April 29, 2013).

[119] Human Rights Watch and American Civil Liberties Union, Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System, July 25, 2010, http://www.hrw.org/reports/2010/07/26/deportation-default-0; Human Rights Watch, Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the United States, December 2, 2009, http://www.hrw.org/reports/2009/12/02/locked-far-away-0; Human Rights Watch, Forced Apart: Families Separated and Immigrants Harmed by United States Deportation Policy, July 16, 2007, http://www.hrw.org/reports/2007/07/16/forced-apart-0.

[120] Human Rights Watch interview with Natalia D. (pseudonym), San Juan, Texas, September 16, 2012. See also Jennifer Lee Koh et al., “Deportation Without Due Process,” a joint publication of Western State University College of Law, Stanford Law School, and the National Immigration Law Center, 2011, http://www.stanford.edu/group/irc/Deportation_Without_Due_Process_2011.pdf (accessed April 14, 2013).

[121] Human Rights Watch interview with Susan Anderson and Milagros Cisneros, assistant federal defenders, Phoenix, Arizona, February 15, 2013.

[122] 8 US Code Section 1182(a)(9)(C)(I)(i) (2012).

[123] Center for Latin American Studies, “In the Shadow of the Wall,” p. 15.

[124] Human Rights Watch telephone interview with Victor Torres, June 29, 2012.

[125]Human Rights Watch interview with Alicia Estrada, sister of Reynaldo Estrada-Baltazar, Azusa, California, October 24, 2012.

[126] Human Rights Watch interview with Candis Mitchell, assistant federal defender, San Diego, California, July 20, 2012.

[127] Human Rights Watch telephone interview with Norma Pulcher, October 24, 2012. A call to the prosecutor for comment on this case was not returned.

[128] Human Rights Watch telephone interview with Victor Torres, June 29, 2012; Human Rights Watch interviews with Liliana Coronado, assistant federal defender, Los Angeles, California, August 30, 2012; with Firdaus Dordi, assistant federal defender, Los Angeles, California, August 30, 2012 and January 24, 2013; and with Brandon LeBlanc, assistant federal defender, San Diego, California, September 5, 2012.

[129] Human Rights Watch telephone interview with Judge Robert Brack in Las Cruces, New Mexico, April 25, 2013.

[130] Human Rights Watch interviews with Heather Williams, first assistant federal defender, by telephone, August 1, 2012, and in Tucson, Arizona, February 13, 2013.

[131] Human Rights Watch courtroom observations in Brownsville, Texas, September 18, 2012; Del Rio, Texas, September 20, 2012; and Tucson, Arizona, February 11, 2013.

[132] Human Rights Watch interview with Magistrate Judge Philip Mesa, El Paso, Texas, September 26, 2012.

[133] US Sentencing Guideline 2L1.2, Unlawfully Entering or Remaining in the United States (2012).

[134]United States v. Santibanez-Salais, 2011 US Dist. LEXIS 21199 *12 (D. N.M. 2011).

[135]Human Rights Watch interview with Angela Viramontes, assistant federal defender, Los Angeles, California, October 29, 2012.

[136] Human Rights Watch telephone interview with Milagros Cisneros, assistant federal defender in Phoenix, Arizona, September 10, 2012; Human Rights Watch interviews with Susan Anderson, April 2, 2013; and with Davina Chen, assistant federal defender, Los Angeles, California, September 6, 2012.

[137] Human Rights Watch, Forced Apart, July 16, 2007.

[138] Ibid.

[139] Human Rights Watch interview with Heather Gonzales, Ontario, California, March 24, 2013.

[140] The exact manner of Gabriela Cordova-Soto’s entry is part of ongoing litigation. The National Immigrant Justice Center is currently representing her in her effort to reopen her earlier deportation case.

[141] Human Rights Watch interview with Benny Lopez, Eagle Pass, Texas, September 19, 2012.

[142] Human Rights Watch interview with Peter Kirchheimer, attorney-in-charge of the Eastern District Office, Federal Defenders of New York, Brooklyn, New York, July 11, 2012; and telephone interview with Heather Williams, August 1, 2012.

[143] Human Rights Watch interview with Heather Gonzales, March 24, 2013.

[144] Human Rights Watch interview with Artemio Lechuga-Lechuga, El Paso, Texas, September 25, 2012.

[145] Human Rights Watch interview with Adriana Quesado, El Paso, Texas, September 27, 2012.

[146] Human Rights Watch interview with Artemio Lechuga-Lechuga, September 25, 2012

[147] Court documents in United States v. Artemio Lechuga-Lechuga, 2012-CR-1931 (W.D. Texas 2012).

[148] Court documents in United States v. Roberto Huerta Huerta, 2007-CR-190 (Ariz. 2007) and 2011-CR-4189 (Ariz. 2012).

[149] Letter from Roberto Huerta Huerta to Human Rights Watch, September 24, 2012.

[150] Ibid.

[151] Human Rights Watch telephone interview with Heather Williams, August 1, 2012.

[152]United States v. Ledezma-Ledezma, 808 F. Supp. 2d 1301 (D. N.M. 2011)

[153] Human Rights Watch telephone interview with Yanir Pioquinto Cruz, April 8, 2013.

[154] Human Rights Watch interview with Maureen Franco, federal public defender, El Paso, Texas, September 25, 2012. Similar accounts were shared in Human Rights Watch interviews with Milagros Cisneros, April 2, 2013; and with Shaffy Moeel, assistant federal defender, San Diego, California, September 5, 2012.

[155] Human Rights Watch interview with Robert Lopez Francisco, Los Angeles, California, October 11, 2012.

[156] Ibid. The special assistant US attorney assigned to this case declined to comment because the case is pending on appeal.

[157] Letter from Jorge Luis Lopez-Duran to Human Rights Watch, October 12, 2012.

[158]Human Rights Watch interview with Heather Gonzales, March 24, 2013. Similar concerns were expressed in Human Rights Watch interviews with Mark O’Brien, San Diego, California, October 22, 2012; Alicia Estrada, Azusa, California, October 24, 2012; Daniel Tabacznyf, Florence, Arizona, February 12, 2013; and Micaela Remijio, Riverside, California, February 28, 2013.

[159]Human Rights Watch interview with Elizabeth Rogers, supervisory assistant federal defender, Marfa, Texas, September 21, 2012.

[160] Human Rights Watch interview with Sonia H. (pseudonym), Marfa, Texas, September 21, 2012.

[161] Human Rights Watch, Neither Rights Nor Security: Killings, Torture, and Disappearances in Mexico’s ‘War’ on Drugs, November 9, 2011, http://www.hrw.org/reports/2011/11/09/neither-rights-nor-security-0; Mexico’s Disappeared: The Enduring Cost of a Crisis Ignored, February 20, 2013, http://www.hrw.org/reports/2013/02/20/mexicos-disappeared.

[162] Ibid.

[163]Human Rights Watch did not independently investigate these cases to determine whether they would necessarily constitute claims to asylum under US law, but the fact that a good number of migrants we spoke with cited fear as a reason for seeking to enter the US suggests that at least some asylum seekers may be among those prosecuted. A 2013 report by a migrant humanitarian organization found that 4.3 percent of migrants surveyed between March and August 2012 cited violence as a reason for migrating, with a significantly higher percentage (12.7 percent) of Central Americans citing it as a reason. Danielson, “Documented Failures: the Consequences of Immigration Policy on the US-Mexico Border,” February 2013. It should be noted that even if only a small percentage of all migrants have potential asylum claims, the absolute number would be in the thousands, if not higher.

[164] Human Rights Watch interview with Norma Ramirez, sister of Jose Fernando Ramos Cardoza, El Paso, Texas, September 26, 2012.

[165]Human Rights Watch interview with Stephen Castro, Pecos, Texas, September 24, 2012; videoconference interview with Juan Cruz Guera, Phoenix, Arizona, April 2, 2013; interview with Lorrie and Royce Whiteley, Austin, Texas, September 14, 2012; interview with Robin Whiteley, Tijuana, Mexico, October 22, 2012; and telephone interview with Nigel Cohen, attorney for Robin Whiteley, August 14, 2012. In 2012, 2 out of 24,089 cases were acquitted, and both were acquitted by bench trial. The 45 defendants who were tried by jury were all convicted. Administrative Office of US Courts, Federal Judicial Caseload Statistics 2012.

[166] Under US law, general violence or strife is not a grounds for seeking asylum. An asylum applicant must provide evidence of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Immigration and Nationality Act Section 101(a)(42)(A), 8 US Code Section 1101(a)(42)(A). Mexicans who fear particular persecution on one of these grounds, however, have increasingly sought to apply for asylum. See Molly Hennessy-Fiske, “More Mexicans seek asylum in U.S. as drug violence rises,” Los Angeles Times, October 28, 2012, http://articles.latimes.com/2012/oct/28/nation/la-na-texas-asylum-20121028 (accessed April 10, 2013) (stating that applications have tripled from five years ago, and the approval rate has increased from 7 to 9 percent).

[167]Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948), art. 14.

[168] A conviction for illegal entry or reentry should not generally bar a non-citizen from pursuing protection before removal, under the 1951 Convention relating to the Status of Refugees (1951 Refugee Convention) (to which the US is bound through ratification of the related 1967 Protocol). Convention relating to the Status of Refugees (1951 Refugee Convention), 189 U.N.T.S. 150, entered into force April 22, 1954; Protocol relating to the Status of Refugees (1967 Protocol), done January 31, 1967, entered into force Oct. 4, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 267. By ratifying the 1967 Protocol in 1968, the United States bound itself to respect articles 2 through 34 of the 1951 Refugee Convention. See article 1(F) of the 1951 Refugee Convention for categories of persons who may not be eligible for refugee status. Human Rights Watch remains concerned about whether the US government might construe multiple reentry convictions as a “particularly serious crime” that would deny eligibility for asylum or withholding of removal. 8 US Code Section 1101(a)(43)(O).

[169] 1951 Refugee Convention, art. 31(1) (emphasis added).

[170] See United Nations High Commissioner for Refugees, “Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers,” February 26, 1999, http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=3c2b3f844 (accessed May 10, 2013).

[171] US Citizenship and Immigration Services, “Obtaining Asylum in the United States,” last updated March 10, 2011, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=dab9f067e3183210VgnVCM100000082ca60aRCRD&vgnextchannel=f39d3e4d77d73210VgnVCM100000082ca60aRCRD (accessed April 10, 2013).

[172]US Citizenship and Immigration Services, “Questions & Answers: Reasonable Fear Screenings,” last updated September 4, 2009, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b1b2549bf0683210VgnVCM100000082ca60aRCRD&vgnextchannel=f39d3e4d77d73210VgnVCM100000082ca60aRCRD (accessed April 10, 2013).

[173] Human Rights Watch interview with Edgar Holguin, assistant federal defender, El Paso, Texas, September 25, 2012.

[174] Human Rights Watch email correspondence with a researcher in the Law Offices of Carlos Spector, May 9 and 10, 2013.

[175] Human Rights Watch interview with Maira Alvarado, El Paso, Texas, September 27, 2012; court records for Joel Reyes-Isais, showing sentence of time-served, four months after the charges were first filed.

[176] Email from Katharina Obser, Women’s Refugee Commission, to Human Rights Watch, November 9, 2012; email from Barbara Hines, University of Texas Law School, Immigration Clinic, to Human Rights Watch, October 3, 2012; Detention Watch Network listserv emails to Human Rights Watch, September 26 and 27, 2012 (reports from immigration attorneys in New Jersey, New York, and Pennsylvania).

[177]Human Rights Watch interview with Brenda R. (pseudonym), Pecos, Texas, September 24, 2012; court documents from United States v. [name withheld]. The assistant US attorney on this case declined to comment because he could not recall the case.

[178] For example, Brenda would have been transferred to immigration detention after completing her sentence. There, if she expressed a fear of persecution, she should have been referred for a “reasonable fear interview.” According to Denise Gilman at the University of Texas School of Law Immigration Clinic, the current wait for a credible fear interview is one to two months, but the wait for a reasonable fear interview is six months. Gilman further noted that with asylum seekers who are in proceedings after having their prior removal orders reinstated, immigration judges generally assume they do not have the power to release them on bond. In other words, Brenda would have to wait in detention six months for a credible fear interview, and if she passed that, stay in detention even longer while awaiting a decision before an immigration judge, all after criminal prosecution and incarceration for illegal entry. Human Rights Watch telephone interview with Denise Gilman, University of Texas, School of Law, Immigration Clinic, October 5, 2012.

[179] Human Rights Watch interviews with Maria Linda Gonzales, attorney, and with Lilia G. Alanis and Orlando Alanis-Trevino, Brownsville, Texas, September 18, 2012.

[180]United States v. Juan Alanis-Gonzalez, 11-CR-815, Judgment (S.D. Tex. 2012).

[181] Human Rights Watch telephone interview with Kari Converse, assistant federal defender in Albuquerque, New Mexico, February 6, 2012; and follow-up email correspondence, March 26, 2013 and April 26, 2013.

[182] Human Rights Watch interview with Milagros Cisneros, April 2, 2013.

[183] Ibid.

[184] Human Rights Watch telephone interview with Kari Converse, February 6, 2012; and follow-up email correspondence, March 26 and April 26, 2013. Converse noted in her last email that the plea agreements offered by the US Attorney’s Office in her district no longer require a waiver of all immigration remedies.

[185] Immigration and Nationality Act Section 208(a) (2012).

[186] Human Rights Watch has reviewed at least one plea agreement used in Tucson as part of “flip-flop” prosecutions, and found it included a waiver of all immigration remedies. United States v. Roberto Moran Diaz, Case No. 12-26809M, US District Court, District of Arizona-Tucson, filed May 15, 2012.