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Ruling Deals Major Blow to San Diego Prosecutors’ Zero Tolerance Cases

Immigration protest
Demonstrators protest President Donald Trump’s immigration policies in front of the federal court building in downtown San Diego. / Photo by Andrew Dyer

For much of the past year and a half, San Diego’s federal courts have buckled under the weight of a surge in prosecutions of immigrants accused of entering the country illegally – a crush that led to delays in transporting immigrants to and from court, outbursts from frustrated judges, cases abruptly being dropped and the deprivation of some defendants’ rights. Thanks to a Wednesday ruling [1], it all might have been for nothing.

The 9th U.S. Circuit Court of Appeals overturned the conviction of Oracio Corrales-Vazquez, who was found guilty of illegal entry in San Diego, a misdemeanor, last June, and paved the way for far more convicted under similar circumstances to have their convictions tossed. The ruling deals a massive blow to the Trump administration’s “zero tolerance” approach to immigration.

The ruling will not only impact roughly 400 other illegal entry cases in the Southern District of California who appealed on the same grounds as Corrales, it will give those who did not not seek an appeal to have those convictions vacated, which would undo the vast majority of the illegal entry convictions secured by the U.S. attorney’s office in San Diego.

The panel of judges basically determined that prosecutors had improperly charged Corrales with a crime he hadn’t actually committed.

The decision to criminally prosecute virtually every person caught entering the country illegally became the federal government’s justification for separating families last summer. Parents were being prosecuted for a crime and thus, the government reasoned, their children could not accompany them during the process. The surge in misdemeanor prosecutions caused chaos [2] and infinite problems [3] in San Diego’s federal courts.

Here’s a snapshot of some of the resulting problems, as we reported in 2018:

Juveniles have accidentally been charged with crimes in adult court. People ordered released have languished in custody. Problems with witness testimony and other mistakes have been discovered in real time, leading prosecutors to drop cases mid-hearing. Agencies that detain and transport migrants being charged with misdemeanors have struggled to accommodate the influx of people, resulting in allegations of substandard conditions, delays transporting people to court – leading to more dropped cases – and other issues.

Corrales, a Mexican citizen, was found by Border Patrol agents in bushes roughly 20 miles east of the Tecate, Mexico, Port of Entry, according to the initial complaint against him.

Corrales effectively argued in his appeal that the government had charged him the wrong way.

The criminal statute at issue has multiple components [4] that allow for people to be charged with illegal entry in a number of scenarios. One is that a person enters or attempts to enter the United States at any time or place other than those designated by immigration officers. Another is that they elude examination or inspection by immigration officers. A third is that they enter or attempt to enter the United States by willfully misleading an immigration officer or concealing information from them.

Since zero tolerance began in April 2018, federal prosecutors in San Diego mostly charged people who they said eluded examination or inspection by immigration officers.

Corrales’ attorneys argued that Corrales couldn’t be charged with that crime because eluding examination or examination could only occur at “places and times designated for examination or inspection by immigration officers,” like a port of entry. He did not enter the United States through a port of entry.

The 9th Circuit agreed.

The U.S. attorney’s office declined to comment on the ruling. But during arguments before the 9th Circuit, Assistant U.S. Attorney Ben Holley said there were two reasons the office chose to utilize the component of the law in question. One was that prosecutors felt that things that people like Corrales had done to enter the U.S. — jumping over the border fence or sneaking in — did, in fact, constitute eluding inspection because the person evaded officials by avoiding a port of entry.

The second reason was a more practical one, Holley said. Regardless of which component of the illegal entry statute they used to prosecute immigrants, they felt the Federal Defenders of San Diego — the group that brought Corrales’ appeal and which handles a large portion of pro-bono federal criminal defense cases in the Southern District of California — would challenge the convictions.

The Federal Defenders, Holley said, “to their credit are very creative in coming up with ways to challenge these statutes.”

Basically, San Diego prosecutors argued, they’d be challenged no matter what they did. On that point, it appears they were right.