‘Zero-tolerance’ immigration policy hits snag in California

By: | Published: December 18, 2018 12:20 PM

The scene played out every day for several weeks in San Diego — another example of judges challenging President Donald Trump's moves on immigration in ways large and small.

The scene played out every day for several weeks in San Diego — another example of judges challenging President Donald Trump’s moves on immigration in ways large and small.

One by one, US Magistrate Judge William Gallo called the names of 14 defendants who were charged with entering the country illegally. Defense attorneys told him the government had already deported them to Mexico, making it impossible for them to appear. In a rebuke to the government, the judge immediately dismissed all charges and ordered that their bond money be returned. The scene played out every day for several weeks in San Diego — another example of judges challenging President Donald Trump’s moves on immigration in ways large and small.

Last month, a different judge halted an administration policy to deny asylum to people who enter the country illegally. Federal prosecutors introduced the mass hearings on immigration charges in California in July, adopting a model that has been in place for years elsewhere on the U.S.-Mexico border. The hearings soon began running past 6 p.m. regularly. Defence attorneys frequently objected that they didn’t have enough time to consult with their clients, who appeared in the same clothes they wore crossing the border a day or so earlier. Then, on September 17, Gallo announced that judges would no longer accept guilty pleas at initial appearances, as they do in Arizona and Texas. Instead, they began setting second hearings for five days later.

Immigrants who posted bail before their return dates were deported. “The government, in many respects, was duplicitous,” Gallo said on a recent Friday, referring to the decision to deport defendants before they could return to court for resolution of their cases. On the same day, Gallo dismissed charges against the 14 defendants, many of them Mexican men who were caught hiding amid boulders and thick brush in rugged mountains east of San Diego.

The administration countered on Oct. 9, saying it would not deport people until their criminal cases were completed. That stopped cases from being dismissed but introduced new problems: Keeping people in custody for longer periods strained detention space and imposed higher costs. “They wanted it to be a one-day thing, like it is across the whole border, because it’s cheaper,” said Jami Ferrara, who represents defense attorneys on a panel with judges and prosecutors working on the changes.

“It’s not a cheap system.” It is unclear how many cases were dismissed in San Diego, but defense attorneys estimate it was hundreds. While dismissing the cases did not free people in the US, it undermined the purpose of Trump’s “zero tolerance” illegal immigration policy: to notch criminal convictions. First-time offenders are punished by up to six months in prison and can be charged with a felony if caught again. The legal skirmishes in San Diego court have not drawn a public reaction from Trump, and the Justice Department and Customs and Border Protection agency declined to comment.

It costs the Marshals Service an average of almost $90 a day to house a defendant. In San Diego, space is at a premium, with room for only 815 people at the main holding facility. To address any space limitations, the Marshals Service has agreements with state and local governments and the federal Bureau of Prisons, as well as contracts with private companies, spokesman Drew Wade said.

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