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When outrage swelled over a recent video that showed Border Patrol agents arresting a mother in National City – and leaving her daughters on the sidewalk watching in anguish – the agency had an explanation ready: The woman was involved in human smuggling, it said.
She had been identified as a “human smuggling facilitator who recruited drivers to transport illegal aliens from a remote border area in Eastern San Diego County to a stash house in National City as part of a larger transnational criminal organization,” Border Patrol said in a statement responding to the backlash.
Border Patrol said at the time that Perla Morales-Luna could be presented to the U.S. attorney’s office for prosecution, or it could simply start deportation proceedings.
Border Patrol never ultimately presented the case to federal prosecutors. Instead, she’s being processed for deportation, not charged with human smuggling.
Morales-Luna’s case isn’t the only one in which Border Patrol said publicly that a high-profile arrest was tied to human smuggling – without presenting a smuggling case to prosecutors.
In another closely watched case from May, Border Patrol arrested Francisco Duarte-Tineo and Rosenda Perez-Pelcastre, the parents of four children in National City. They were also accused of human smuggling, but no charges were ever filed against them.
Border Patrol spokeswoman Tekae Michael said the agency never turned over either of those cases to the U.S. attorney’s office for possible criminal prosecution.
“It is at the discretion of the Border Patrol to seek prosecution or proceed with removal,” Michael wrote in an e-mail. “Each arrest is on a case-by-case basis.”
Immigration attorneys say they’re increasingly seeing cases where people are accused of human smuggling, but are never actually charged with the crime. One advocate said he believes officials accuse immigrants of smuggling to deflect bad press from high-profile arrests.
At the same time, human smuggling prosecutions – meaning instances where criminal charges are filed – are higher than they were five years ago.
Tammy Lin, chair of the San Diego American Immigration Lawyers Association chapter, said there’s a lower evidentiary standard in immigration court than is required for criminal convictions. Human smuggling accusations make it harder to fight a deportation case.
The accusations also enter into bond proceedings, when judges decide whether undocumented detainees can be released into the community while awaiting immigration hearings.
“You were here without status, but an ICE attorney will throw in whatever criminal arguments they can,” Lin said. “Then you need a good immigration attorney to go through each allegation and say the government has the burden of proving those allegations are true.”
Only about 37 percent of immigrants have legal representation in immigration proceedings, according to a 2016 American Immigration Counsel report. Immigrants in detention facilities are less likely to fight their cases successfully for a variety of reasons, including access to counsel.
Even unproven accusations can influence cases for unauthorized individuals or green card holders pursuing citizenship, Lin said.
“The way a lot of immigration stuff works, it’s discretionary,” Lin said. “If for whatever reason a judge sees ‘alien smuggling’ and wants to talk to you about it, and even if you know nothing about it, but it comes across that you’re not being fully candid, they can say, ‘Eh, I don’t think you’re eligible for this. I don’t believe you.’”
Mark Lane, a community advocate who has been working with Duarte-Tineo and Perez-Pelcastre’s legal team, said he thinks Border Patrol uses human smuggling accusations as a shield from public blowback.
“Anytime it’s a bad arrest and it looks bad for them, then they put out these statements,” Lane said. “They are very careful to say they are being charged with being here undocumented, not human smuggling.”
He said when Border Patrol picks up people for smuggling, or for being smuggled, officers ask for the names of other people involved. He suspects the agencies then use those lists to find unauthorized immigrants to deport.
Lane said the smuggling accusations were brought up with Duarte-Tineo because he was named on one such list years ago, but he wasn’t arrested until 2017.
“Well, then why didn’t you arrest them back then, when it happened?” Lane asked.
During Morales-Luna’s immigration bond hearing, an Immigration and Customs Enforcement attorney said someone charged earlier this year in a smuggling case had named Morales-Luna as being involved in the scheme. Morales-Luna’s attorney pointed out, in response, that the smuggling case had been dismissed, with no evidence being presented that linked his client to the smuggling scheme.
Human smuggling is a broad charge.
According to the Immigration and Nationality Act, criminal penalties for human smuggling or “bringing in and harboring certain aliens,” can result from knowing someone is undocumented and encouraging them to enter the United States illegally, helping them do so, transporting them across the border or housing or hiding them in the United States. Commercial gain isn’t required to be charged with the crime.
The statute is broad enough to include sending money for a family member to use to cross the border illegally.
Back in August, advocates accused ICE of focusing on parents who pay smugglers in an operation that rounded up roughly 400 people nationwide. Most of those detained were hit with civil or criminal immigration violations, not human smuggling charges.
Actual human smuggling charges are on the rise nationally, too.
It was the second most common criminal charge against undocumented immigrants in 2017, according to the Transactional Clearinghouse, a research center at Syracuse University. Illegal re-entry was first.
Human smuggling charges in 2017 were up nearly 12 percent from 2012, under the Obama administration. Charges in 2017, however, actually fell from where they were in 2016, Obama’s last year in office.
The Southern District of California, the federal district court that covers San Diego, is one of the most active courts in prosecuting human smuggling cases. It brought 94 cases in 2017, according to TRAC.
Federal agencies that investigate human smuggling, like Homeland Security Investigations and Customs and Border Protection, say that though the crime is technically broad, they focus their investigative resources on large transnational smuggling organizations that exploit people for profit.
Officials say they use administrative channels, with less severe punishments, for smaller cases they come across, like someone who helped a family member enter the country illegally.
But it’s more complicated if the person involved is also undocumented.
“For HSI, the question becomes one of whether or not a particular human smuggling or trafficking event is associated with a wholesale, large-scale, high-volume transnational criminal organization,” said James Plitt , the San Diego deputy special agent in charge of Homeland Security Investigations. “Law enforcement resources are limited, so we ask, ‘Does this deserve a larger investigative commitment or can it be addressed another way?’ The consequences have to match the true nature of the event.”
In the course of investigating transnational criminal organizations, HSI may also encounter people being trafficked – where they’ve been forced into labor or sexual exploitation – or smuggled, in addition to people involved in organizing the smuggling or trafficking, Plitt said. In those instances, the victims of trafficking or those being smuggled are typically transferred to ICE Enforcement and Removal Operations, or to U.S. Customs and Border Protection if at the border, for further action.
Sergio Guzman, branch chief of prosecutions at the San Ysidro Port of Entry, said he’s seen an increase in smuggling attempts in vehicles in the last year. He said he now sees two or three smuggling apprehensions – primarily people in cars, sometimes hidden in gas tanks, below seats or vehicle undercarriages – a day at the port of entry.
Guzman said drivers are sometimes oblivious to how the smuggling organization they’re working for works, making investigating the larger organizations more difficult.
“They might just be told, you’re driving the car across and go to this Walmart parking lot,” Guzman said. “A lot of the time, drivers don’t even know what they’re bringing across.”
Attorney Andrew Nietor, who defends clients in immigration and human smuggling cases, said he’s noticed patterns in local smuggling cases.
Most smuggling cases he’s seen come from the ports of entry and are transportation-related. Harboring cases, like the National City accusations, are less common.
Nietor also said U.S. citizens or people with legal residence are more often involved in human smuggling on the U.S. side than undocumented immigrants, in his experience. Unauthorized immigrants don’t want to take the risk, he said, since their presence in the country is already precarious.
“An undocumented person charged with [human smuggling] is an aberration to the rule, but in today’s political climate, that’s what is getting highlighted,” he said.