The Law vs. Reality : Agents Choose Which Border-Crossing Criminals to Prosecute

At the U.S. Border Patrol station here, just a few minutes drive from the busiest border crossing in the world, senior patrol agents Keith Centner and Hector Henao deal exclusively with criminals who have no legal right to be in the United States.

Like the Border Patrol in general, Centner and Henao complain that they are understaffed, underfunded and overworked.

Because only four agents in the entire San Diego sector are assigned to the Border Criminal Alien Program, or BORCAP, the agents say they are choosy about which criminals merit their time.

The stacks of files on their desks attest to the backlog of cases they must prepare for possible prosecution, imprisonment and deportation. Then the cycle begins again.

That is one of the reasons why Antonio Mendoza got lucky the other day. His is a tale of how reality undergoes a metamorphosis from lawmakers’ chambers in Washington to the streets of Southern California.

Picked up on a routine Border Patrol sweep as he sat at a San Diego bus stop, Mendoza, 26, was in a holding cell at the Chula Vista station awaiting a free bus ride to Tijuana. He and his cellmates had admitted to Border Patrol agents that they were in the country illegally and agreed to voluntarily leave.

Such “voluntary departures” define the rhythm of Border Patrol operations every day. They are quick and inexpensive, part of the endless border game of cat and mouse.

At the request of The Times, an agent pulled Mendoza from the holding cell. The agent believed that Mendoza, and a few others, had a hardened “look” that can be a tip-off to a criminal past.

But Mendoza, interviewed privately, did not need to be prodded to confess. He talked openly about selling drugs and getting high in San Diego parks and at a house in the Golden Hills neighborhood. “I sold drugs because I didn’t have a job,” he said.

Mendoza said he was deported about a month ago, after he was released from Susanville state prison, where he served almost 16 months of a 2 1/2-year sentence for selling cocaine.

“After they deported me, I went to Morelos (Mexico) to see my mother and brother,” he said. “But I couldn’t find work. And I didn’t want to wait around.”

Then, simply by illegally crossing into the United States again, Mendoza committed a federal offense: re-entry after deportation.

Before prosecution of such an offense can take place, however, several things must happen. First, the suspect must be caught and held. Then, a federal prosecutor and a judge must believe that trying the case has merit, and prison space must be found.

“What they tell you about in Washington is the law,” said BORCAP agent Henao. “This is reality.”

The reality is that federal prosecutors cannot hope to keep up with the Antonio Mendozas of the world. And even if they could prosecute all such cases, new prisons would have to be built to accommodate the felons who violate the re-entry law.

Assistant U.S. Atty. Steve Madison, a member of the Los Angeles County criminal immigrant subcommittee, said internal guidelines dictate that an illegal immigrant must have at least two prior deportations and two prior felony convictions before an indictment for re-entry will be considered. In practice, the threshold is higher than that.

In San Diego, U.S. Atty. James F. Brannigan said such re-entry prosecutions take up roughly 20% of his district’s total criminal caseload. “We have developed guidelines which hopefully are allowing our office to effectively prosecute the more serious of these cases, the people with the worst criminal records,” said Brannigan, declining to say what those guidelines are.

So Mendoza was put back in the holding cell and “voluntarily departed” to Tijuana, and his re-entry crime will not count.

But first, his fingerprints were fed into the Chula Vista station’s Automated Fingerprint Identification System, or AFIS, a database that the INS points to as the wave of the future that can outwit criminals who use aliases.

Somebody like Mendoza should come up on the computer screen, but he did not. The BORCAP agents said the glitch was unusual.

As for Mendoza, he said: “I’m coming back, because I’m working.”

A Complex Process

Anyone who is not a U.S.-born or naturalized citizen may be eligible for deportation after committing a felony. However, a complex series of laws and regulations determines who is actually deported. Below are some of the factors that Immigration and Naturalization Service officials and immigration judges consider after immigrants have been convicted of serious crimes.

IF SUSPECT IS DEPORTABLE

INS officials determine if a convict who has served his prison sentence is deportable. Factors could include:

* Whether the convict is an illegal immigrant or has violated the terms of legal residency

* The type and severity of the crime.

* How long the convict has been in the country.

* The convict’s family ties in the United States

* Whether deportation would cause severe hardship.

HOW IMMIGRATION JUDGE RULES

If the convict is determined to be deportable, an immigration judge could:

* Order the convict deported.

* Allow the convict to remain in the United States.

WHY SOME SUSPECTS AREN’T DEPORTED

Sometimes deportation orders are not carried out because:

* The convict’s native country will not allow him to come back.

* The convict has a well-founded fear of persecution in his county, or the U.S. has no diplomatic relations with his country.

* The INS is not there to take custody of the inmate when he is released.

* The inmate or his attorney has successfully appealed the deportation order.

Source: INS and immigration lawyers