A federal judge has spoken out against a sharp increase in Northern Virginia in the prosecution of immigrants who reenter the country after deportation.
“I hope this is not the start of a pattern for this year,” Judge Leonie M. Brinkema said in Alexandria federal court last week, noting that there were six such cases scheduled for the first Friday in January. “I think this is not the best use of judicial or Justice Department resources to keep seeing these types of cases.”
She added that she would like that message to be relayed to G. Zachary Terwilliger, the U.S. attorney for the Eastern District of Virginia.
The defendant before her that morning, Ramon Adrian Ochoa Paz, ended up in federal court after serving time in Prince William County for aggravated sexual battery of a child, a felony. But in federal court, his only alleged crime was coming back into the country after being deported in 2000. He is something of an outlier; in the majority of the 224 cases of felony reentry after deportation that were filed in the Eastern District last year, initial arrests involved misdemeanor offenses, most commonly drunken driving. Arrests for misdemeanor assault and public intoxication are also common.
Former attorney general Jeff Sessions made immigration cases a national priority, and the U.S. attorney’s office in Alexandria is one of many that responded to the call. U.S. Chief Justice John G. Roberts Jr. noted in his 2018 review that there was a 40 percent increase nationally in defendants charged with illegal reentry last year. After drug crimes, immigration offenses are the most common federal charge, and most are illegal reentries.
The vast majority of these cases are prosecuted at the border, where immigrants are caught crossing illegally. The Eastern District of Virginia ranked sixth among non-border districts in illegal reentry prosecutions last fiscal year.
The Eastern District, a large and high-profile office led by a prosecutor who worked under Sessions, has seen a particularly sharp rise in such cases, from 78 filed in 2017 to nearly three times that number the following year.
The numbers were as high or higher under President Barack Obama through the end of 2014, when the White House took unilateral action to change national deportation priorities. After that move, the number of cases dropped sharply in Alexandria, along with several other districts across the country.
Terwilliger declined to comment, but in recent months, he has been highlighting cases in which defendants have repeatedly come into the country illegally and committed other crimes while here. They included a Salvadoran man who was arrested for his fifth drunken driving offense and who already had a felony reentry conviction and a Mexican man with a sexual assault and drug record who had previously been deported.
“We are committed to criminal immigration enforcement and will continue to prioritize these cases,” the U.S. attorney wrote in a news release.
Terwilliger has simultaneously emphasized his support for legal immigration, regularly taking part in the Alexandria courthouse’s monthly naturalization ceremonies. In his first-ever tweet, he wrote, “These individuals exemplify that we are both a nation of immigrants and a nation of laws.”
Most undocumented immigrants convicted of coming back into the country after deportation do not have previous felony or extensive misdemeanor records and are usually not sentenced to any incarceration beyond time served awaiting judgment before they are handed over to U.S. Immigration and Customs Enforcement, according to federal court records. The average sentence in fiscal 2018 for those who did get prison time was five months, according to data from Syracuse University’s Transactional Records Access Clearinghouse — on the low end nationally and a decline from previous years.
In many cases, the initial charges are dropped or left hanging because the defendant is already in ICE custody. When the initial crime is more serious, a defendant is more likely to be prosecuted on federal charges after completing a local sentence.
Although the Salvadoran gang MS-13 is a serious problem in Northern Virginia and many of the undocumented immigrants are from that country, only four of the 224 defendants prosecuted last year on a reentry charge have been alleged in public court filings to have ties to the gang.
Only a few of those prosecuted were not arrested for any reason other than returning to the country after deportation. For example, a contractor was arrested when he was working on a house where FBI agents were serving a search warrant.
Often, defense attorneys in these cases ask to skip as much of the standard court process as possible, hoping to move a case quickly to sentencing. Undocumented immigrants rarely have the money to hire attorneys; most of these cases are handled by taxpayer-funded public defenders.
“The court, prosecutors, and defense lawyers spend considerable time and resources, particularly to hire interpreters, on illegal reentry cases. Yet these defendants almost all face, in addition to prosecution, detention in ICE custody and deportation,” Geremy Kamens, lead public defender for the Eastern District, said in a statement. “Particularly for defendants who have little or no criminal record, ICE detention and removal already amount to a significant punishment.”
Brinkema has challenged the Trump administration’s immigration policies before. She issued a preliminary injunction against the White House’s travel ban on seven majority-Muslim countries in 2017, saying there was “unrebutted evidence” that the order was motivated by “religious prejudice.”
But in immigration cases involving a pattern of bad conduct, she has not shied from imposing relatively long sentences.
Giving one man with a history of domestic violence and drunken driving a 14-month sentence for recrossing the border illegally, she told him, “You’re a menace when you’re in this country.”