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Detainees and Courts Are Dealing With Intense Strain Under New Border Policy, Court Docs Show

A father separated from his 5-year-old daughter at the border learned she’s being held across the country. Attorneys can’t speak with their clients, who are being held as far away as Arizona. Court documents reveal further details about what both migrants and San Diego’s federal court system are experiencing under the mandate to criminally prosecute everyone caught crossing the border illegally.

A migrant woman peeks through the border fence to see supporters rallying on the U.S. side of the border. / Photo By Adriana Heldiz

A father separated from his 5-year-old daughter at the border and learning she’s being held on the other side of the country in a place called New York, which he’s never heard of.

Cold nights on a concrete floor or metal benches at ports of entry or Border Patrol stations before detained migrants are transferred for prosecution, without access to medical care.

Attorneys unable to speak with their clients, who are being held as far away as San Luis, Arizona. Court days running late into the evenings.

This is what Attorney General Jeff Sessions’ “zero-tolerance” policy looks like on the ground in San Diego.

Court documents reveal further details about what both migrants and San Diego’s federal court system are experiencing under the mandate to criminally prosecute all those who cross the border illegally.

Virtually all the stakeholders in the Southern District of California, the federal court that covers San Diego, have been struggling for the past month to adjust to the chaos resulting from the surge in immigration-related prosecutions. Many of those being prosecuted with misdemeanors have no criminal records or prior deportations – a group prosecutors used to leave to immigration officials.

Chief District Judge Barry Moskowitz recently formed a Criminal Case Management Committee made up of judges, the U.S. marshal, the U.S. attorney, the executive director of the Federal Defenders of San Diego – a nonprofit that takes on the defense pro-bono of many federal criminal cases here – and more stakeholders from the court to try to deal with the influx of cases.

In his order to form the committee, Moskowitz wrote, “the U.S. Attorney has advised the Court that he intends to substantially increase the prosecution of illegal entry cases, including at least 100 misdemeanor cases a week.”

The flood of new prosecutions “comes at a time in which the Court has already had an approximate 45% increase in felony cases in 2017 and has vacancies in District and Magistrate Judge positions,” he wrote. “The increase has and will cause strains, issues and problems for the Court and its personnel, the U.S. Marshal and his staff, the U.S. Attorney and his staff, the Warden of the Metropolitan Correctional Center and his staff, the Federal Defender and his staff, and the CJA Panel attorneys.”

Plans to implement Operation Streamline, a program that essentially creates a separate judicial system for the migrant prosecutions, were announced to the committee, the Los Angeles Times reported earlier this week.

Operation Streamline was first launched in 2005, but has been used across the U.S.-Mexico border. The program’s voluminous prosecutions are made more efficient through en masse hearings, where up to 100 individuals at a time could be arraigned and sentenced in a matter of hours.

Reuben Cahn, executive director of the Federal Defenders, was unable to attend the committee’s meeting, but sent a letter to Moskowitz laying out his concerns with the surge in prosecutions and Operation Streamline.

“I consider this a critical moment for the Court, the defense community, and our shared commitment to the ideals of due process and meaningful representation of the accused,” Cahn wrote. “Both principals are now at risk.”

In the letter, Cahn lays out troubling developments he says he’s seen since Sessions’ zero-tolerance took effect:

  • Those arrested are held in Border Patrol outstations for days without adequate clothing, blankets, food, hygiene or medical care.
  • Court days stretch into the evenings.
  • Attorneys can’t meet with clients before their bond hearings and initial appearances.
  • Misdemeanor defendants can’t set a trial sooner than 30 days, but can change their plea in seven, meaning that many opt to plead guilty rather than stay in jail to contest the charges.
  • Defendants are being held in faraway detention facilities, while most of their attorneys are here in San Diego, eroding trust between the defendants and their legal counsel, making it even more unlikely that they will contest the charges they’re facing.

Pretrial detainees “spent multiple nights at either a [Border Patrol] station and/or some other holding facility where they were sleeping on the floor with a mat and mylar blanket,” he wrote. “We are again seeing diabetic clients not getting access to needed medication. We are also hearing clients report being housed in cold rooms where the lights are on all hours of the day and night.”

In one declaration, Rafael Ramos-Flores says he has diabetes, for which he takes medication, and had suffered a heart attack about six months before his arrest.

“The agents did not ask me if I had any medical conditions or needed medication,” Ramos-Flores said.

One night while in Border Patrol custody, he started having chest pains. He was taken to the hospital, and prescribed medicine by a doctor, according to the declaration.

“The agents took me back to another immigration holding area on Sunday,” he said. “I was not given the medicine that the doctor had prescribed me the night before.”

Ramos-Flores said in the declaration he was held in a room with 18 other people.

In his letter, Cahn also details what attorneys and judges in other states have experienced with Operation Streamline.

“Left without the time or input from counsel necessary to treat defendants as individuals, courts process cases rather than dispense justice,” Cahn wrote. “Eventually this erodes the respect which is the foundation of courts’ legitimacy.”

Another effect of the “zero-tolerance” policy has been the separation of children from their parents at the border.

Nazario Jacinto-Carrillo said he left Guatemala for fear of his life. He was threatened by gangs who said they would kill him and came to seek asylum in the United States, according to a written declaration. He fled with his 5-year-old daughter, Filomena, leaving his wife and 2-year-old son behind.

“I left with our daughter because I have always taken her everywhere with me,” Jacinto-Carrillo said in the declaration. “Up until my arrest, I was with my daughter all day, every day. I even took her [to] work with me.”

He said he also thought it would be hard for his wife to feed both of the children alone. Jacinto-Carrillo’s attorney, James Chavez, said his client still worries about whether his wife and son are able to eat.

Jacinto-Carrillo has no criminal history, according to court documents. Chavez said it appears his client has no prior deportations, based on limited information and records sent to him during the discovery process. Jacinto-Carrillo was assigned a new alien number, which is how immigration officials keep track of unauthorized immigrants once they interact with them.

According to the complaint against Jacinto-Carrillo, he and Filomena were apprehended on May 16, about 20 miles east of the Tecate Port of Entry in a group of four Guatemalan nationals.

They were then taken to a Border Patrol station, according to Jacinto-Carrillo’s declaration, where they were fingerprinted. After a while, agents told him he was going to jail and that his daughter would stay at the Border Patrol station.

“My daughter embraced me,” he said in the declaration. “Two Border Patrol agents grabbed her out of my arms. She was crying. The Border Patrol Agents pushed me so I could leave. My daughter was screaming and crying. And so was I.”

Jacinto-Carrillo said he was told he’d be in jail for two or three days and then reunited with his daughter.

That’s not what happened.

More than a week later, Chavez, who said he even had to seek the assistance of the local American Civil Liberties Union, was able to track down Jacinto-Carrillo’s daughter.

She was in a facility in New York.

“She was not at the Border Patrol Station in San Diego,” said Jacinto-Carrillo in his declaration. “She was in New York. I do not know where New York is. I was told it was very far.”

The last lines of his declaration read: “I do not know when I will see my daughter again. I cry nearly every day missing my daughter. I am hoping that either she can be released to a family member here in the United State or be reunited with me as soon as possible.”

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