The Problem with Prosecuting Border Crimes

On the border, I heard a reoccurring issue from Customs and Border Protection and other federal agents in the field. That many of the arrests they make for criminal acts on the border are not prosecuted.

Despite overwhelming evidence collected by investigators for assault on federal agents, possession of narcotics, and smuggling, it remains a challenge for agents to advance those cases.

One CBP agent I spoke with on the issue said: “We struggle to get the Assistant U.S. Attorneys to accept criminal cases despite overwhelming evidence and very serious crimes.”

He expand on this statement, “The AUSAs are so fickle on what gets prosecuted that they’re even turning down serious assaults of CBP Agents, stating, ‘Well, the Agent wasn’t even injured/severely injured,’ also despite often having many aggravating circumstances attached (use of weapon, high-speed flight in a vehicle, reckless disregard for public safety).”

DSCF2068 — Border Justice is not blind. The statue of justice that rests on top of the old courthouse in downtown Nogales, Arizona. Image courtesy of Buck Clay.

The federal court system that handles these crimes is overwhelmed, of the 54,928 criminal cases initiated by federal prosecutors in 2015, about 51%—or 28,135—were filed in court districts neighboring the Mexican border. Hence, one problem that restricts case consideration. Another issue that has arisen from an overwhelmed system is the means to mitigate it.

An example of this mitigation was explained to me by another CBP agent, and it comes in the form of a time restraint given to CBP and other federal agents operating on the border by the AUSA, in the form of a weekly cutoff. This cutoff restriction is not legal code, but an interoffice means of mitigation and was established as a weekly turnover for the sake of organization and reporting.

For instance, an arrest is made by federal agents on Saturday, at 19:00 hours, a Mexican suspect has assaulted two agents during his arrest and had two kilograms of heroin on him. Although by the time the agent has returned from the field and processed him, it’s 02:00. The Sunday at 0:00 cut off has been missed by two hours. The suspect will now only be prosecuted with border crossing charges, and sent back to Mexico instead of being fully prosecuted due to bad timing and unrealistic deadlines.

Many criminals on the border are aware of these legal complications within the U.S. system; they are also mindful of the fact that our justice system is flooded, and often know more about U.S. law than most U.S. citizens. The regulars, those whose lives are built around the violation of U.S. law and the commission of border crime, know when and where local prosecutors have the resources to go after them, and typically they exploit rural areas that lack the resources to prosecute efficiently and house large numbers of offenders.

The CBP agent continued these issues, “AUSAs want slam dunks that’ll cop a plea, not something that might need to be proven, so suspects caught with hundreds of pounds of dope, guys who’d grabbed an agent’s rifle and fought him for it, etc. are getting rejected or offered comical deals to guarantee that 100% conviction rate for lawyers punching their ticket on the way to a private firm and big salaries.” Details on this practice can be found within a fast track guide from Harvard, available online.

DSCF2070 — The old courthouse where the not-blind justice statue rests in downtown Nogales, Arizona. Image courtesy of Buck Clay.

Currently, an AUSA from each DAs office is assigned to oversee the prosecutions of border crimes. Federal allocations and state grants pay for this, which in turn allows for local law enforcement to investigate and prosecute cases as well. These cases, many involving immigrant smuggling, are only to be pursued when they involve death or serious injury, and non-marijuana drug smuggling cases are not be prosecuted when a suspect has a border crossing card. A visa issued to Mexican citizens who live in the border regions which allows for short visits to the United States. Marijuana cases as per Title 21, under 400 pounds are not to be prosecuted at all, in fact, the Drug Enforcement Agency is not to be disturbed for such small amounts, as per internal CBP policy. Albeit, a majority of marijuana sent over the border is addressed as a distraction to occupy federal agents while the real narcotics such as cocaine, heroin, and methamphetamines are smuggled in.

As for felony prosecutions for those re-entering the U.S. after a deportation are only accepted if the suspect has been previously convicted of a violent crime. A delicate matter if the defendant cannot begin to be prosecuted in the first place. Complicated guidelines to a growing problem, with the only headway being that felony prosecutions are being accepted for suspects illegally re-entering the country after being deported if the suspect has a minimum of two prior felony convictions.

This strange brew ‘s hard to swallow, particularly if you’re one of the many agents charged with protecting the border. There are calls to allow for further anarchy on the border, with 170 organizations petitioning for an end to prosecutions on the border. On the other hand, there is the demand for justice but the American people should not pay the for the long-term facilitation of foreign criminals.

The border remains a complex region with many individuals and organizations offering opinions as well as demands, but most only want what concerns them. If anything positive for the border is to be done in the United States, a loss of the “me” attitude and an institution of “we” attitude must be accepted. The border is much larger than anyone’s backyard or personal opinions.

A representative for the AUSA or the Justice Department has failed to comment on this issues despite multiple inquiries.

Featured Image: A Sonora Cartel scout showcases his tattooed eyes while being processed by federal agents on the U.S. side of the border near Nogales, Arizona. Image courtesy of Buck Clay.