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Problems getting detainees to court on time magnified under 'zero-tolerance' immigration crackdown

Jose Dominguez-Vasquez was stopped in a vehicle east of Tecate, Calif., by a Border Patrol agent at 4:13 p.m. on a recent Friday.

He admitted he was not in the country legally, having just crossed the border. He was arrested and spent the weekend locked up.

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When it came time for his scheduled appearance before a San Diego County federal judge last week, he wasn’t in court.

Neither was Arturo Garcia-Gomez, or Adriana Hernandez-Jimenez, or several others arrested earlier this month who were supposed to be there.

By the end of the day, public defenders had filed 18 writs of habeas corpus, demanding their clients be presented in court or be released.

Failures to bring new arrestees to court in a timely manner has been an issue for years in San Diego and Imperial counties, and federal defense attorneys say that it has only magnified in recent months as the Trump administration has vowed to criminally prosecute all illegal border crossings under a “zero-tolerance” policy.

The crackdown has put pressure on the federal justice system along the Southwest border as law enforcement, detentions and courts have tried to adjust to the ballooning caseload.

Since mid-April, when U.S. Atty. Gen. Jeff Sessions announced the new policy, public defenders in San Diego have filed 138 habeas corpus petitions, a civil remedy that in Latin translates to “produce the body.” That’s compared to 13 filed during the same period last year, according to court records.

The U.S. attorney’s office declined to comment on the habeas petitions.

A defendant’s initial court appearance is an important first step in a criminal case. It is when a defendant learns of the charges, a judge appoints an attorney and the parties discuss the possibility of bail.

The reasons given for the delays in court appearances have varied, and the responsibilities seem to be shared by several parts of the system.

“It’s like ‘Groundhog Day,’” public defender Ryan Stitt said in frustration after bringing a fresh batch of habeas petitions earlier this week. “The excuses are all the same.”

While delays can affect any kind of federal defendant, it is overwhelmingly affecting those charged with immigration offenses. The U.S. attorney’s office has been voluntarily dismissing some misdemeanor illegal entry cases after habeas petitions have been raised, depending on the circumstances.

In mid-May, a massive computer glitch that affected the national federal prison system, including the Metropolitan Correctional Center in San Diego, or MCC, delayed dozens of arrestees from getting to court in a timely fashion. Prosecutors dropped about 30 of the misdemeanor illegal entry cases and went forward with the handful of felony re-entry cases involved. Another 20 or so have been dismissed since then. Those defendants have been released into immigration custody to begin the civil deportation process.

The number of dismissed cases is just a small fraction of the more than 1,200 misdemeanor illegal entry cases charged in the Southern District of California since the zero-tolerance policy went into effect.

Instead, what happens most often is a judicial order that gives the defendants an extra day to be produced.

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Public defenders say that’s not a good enough remedy.

Last week, when U.S. Magistrate Judge William Gallo moved to continue the court date to the next day for a group of unauthorized immigrants who hadn’t been produced, federal public defender Rebecca Fish asked the judge to order their appearance immediately, and said she was willing to go into the evening to make sure her clients had been arraigned.

Gallo didn’t go for it.

“I appreciate your willingness to stay late and work, but we’re not going to do that,” the judge said, according to a transcript of the hearing. “It’s bad precedent to set, to continue to work ’til all hours of the night.” He then asked the prosecution why the 16 defendants hadn’t been produced for court earlier that morning, when the calendar was lighter.

Assistant U.S. Atty. Davis Loop answered: “Well, your Honor, this is an ongoing issue that my office has been working on. I know it’s been a long day today. But unfortunately, we have this many defendants — which is obviously not their problem — you’re going to have logistical issues.

“Now I know my office took every step it could today to make sure that these defendants could appear in a timely manner and also set down a legion of attorneys to ensure that things went smooth. But I know it’s been an ongoing issue, logistically, getting defendants here from MCC, and we continue to work on that.”

Fish shot back: “Your Honor, on that point, this has been an issue for longer than I’ve been practicing in this district — for years. There’s no reason the United States attorney’s office, that if they’re not able to prosecute this many cases and respect people’s rights, they should prosecute this many cases.”

She continued that without the judge inflicting consequences, the practice would continue.

The judge noted her points as valid but still ordered the defendants to court the following day.

“Mr. Loop,” the judge warned, “you’re going to have to do a better job because I may just dismiss the ones that we can’t get to.”

He added logistical problems are understandable, but “it’s a problem that is created by the executive branch without prior planning of this particular operation. And you’re going to have to come up to speed pretty quickly because I hear Ms. Fish loud and clear.”

The issue of getting defendants to court on time has been litigated several times in recent years in San Diego. The federal court addressed problems in 2011 during an uptick in illegal border crossings, and again in 2015.

As a result, the Southern District of California operates under this rule of thumb: if a person is arrested before 6 a.m., he or she should be arraigned that same day. But if the arrest happens after 6 a.m., it is generally accepted to produce him or her for court the following day.

The court has laid out valid reasons for delay: humanitarian issues, such as a hospitalization; the unavailability of government personnel or judges to complete arraignment; and extra time needed to determine if criminal charges should be filed.

The court has also ruled that problems with the booking process or medical screening at MCC aren’t valid reasons.

When asked about booking capacity, a U.S. Bureau of Prisons spokesperson said MCC processes about 35 pretrial inmates per day. But with new medical equipment, “the facility expects to process approximately 50 pretrial inmates a day with additional increases expected in the near future,” according to the bureau.

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Delays in getting defendants booked into MCC means more people arrested at the border are spending longer periods of time in Border Patrol facilities, lockups that are meant for temporary housing — especially over the weekends.

“The conditions they are kept in are terrible,” Stitt said.

One recent client, a pregnant woman, said she was held at the Chula Vista Border Patrol station for two nights, slept on a cardboard slab with an emergency “space” blanket and was fed cookies and juice four times a day, Stitt said. Another man with a heart condition was taken to a hospital and prescribed medication, but he was unable to bring the medication into the station.

Border Patrol officials in San Diego could not be reached for comment.

At MCC, a facility designed for longer-term stays, detainees are given beds, fresh changes of clothing, showers and medicine.

“The quicker we can get people to court and get them an attorney, the quicker we can stop this type of treatment,” said Stitt, who started the habeas program at the Federal Defenders of San Diego more than two years ago.

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