COMMENTARY: I have been privileged to have served on the Criminal Justice Act (CJA) Panel for the United States District Court of New Mexico since 2004. The CJA Panel is comprised of private attorneys selected to represent indigent defendants that the Federal Public Defender (FPD) cannot represent, either because legal ethics require that multiple defendants be represented by unassociated attorneys or because the sheer volume of cases overloads the local FPD office and private attorneys are needed to handle the overload.
To give you an idea of the number of cases filed in the District of New Mexico, I was just recently appointed to case number 1,611 for the year 2016, and we are not even a third of the way through the year. While I have handled all manner of cases on the CJA panel, the vast majority of cases I see are for violations of 8 U.S.C. 1326, otherwise known as Re-Entry of a Deported Alien. There is usually not much that can be done for the defendants in this type of case because it so easy for the government to prove the defendant’s guilt. All the government must prove is that the person is (1) not a U.S. citizen, (2) was previously deported from the United States, and (3) re-entered the United States without permission from the United States government.
As a defense attorney, there is little that can be done for the client under these circumstances, so the emphasis is on moving the defendant through the system as quickly as possible and trying to get the client the best possible sentence.
While there are some offenders with serious criminal histories in the United States, and they often face long sentences for this type of crime, the vast majority of my clients have no criminal history or minimal criminal history in the United States. While the maximum possible sentence for this charge is all the way up to 20 years, the federal sentencing guidelines are consulted to determine an appropriate sentence.
A re-entry defendant with minimal or no criminal history is in the zero- to six-month sentencing guideline range, meaning that an appropriate sentence is in that range and the sentencing judge should sentence them accordingly. I verify their criminal history and ask the court to set them for a speedy change of plea, and they will usually plead guilty about a week after they are arrested. The U.S. Probation Office must then prepare a pre-sentence report, which can take up to 30 days to be completed, though our probation officers frequently complete them much quicker.
With a little luck, I can get them sentenced in just under a month, but most can expect to be here about 30 to 45 days before being sentenced. They are then transferred to the custody of Immigration and Customs Enforcement (ICE) and deportations proceedings begin.
Most Mexican detainees are back in Mexico within 24-48 hours after completing their sentences. Detainees from other countries usually have to wait somewhat longer for travel to be arranged for the return to their home country.
Loss of personal property
When I first meet my clients, it’s at one of the local jails that are contracted with the United States Marshal Service to incarcerate them until they are sentenced. Needless to say, I encounter people who are dejected and defeated. Every single one has a compelling reason to come to the United States.
Most are hoping to land a job that can pay them more in a few months than they could hope to make all year in their home countries. Some are hoping to reunite with their loved ones. Some are trying to escape violence and unrest in their countries. Some have been living in the United States for years and, due to circumstances in their home country like the sickness or death of a family member, return home and then are forced to try sneak back in to the United States to get back to the life they had been living.
But now none of that matters because they are sitting in an American jail and, as their defense attorney, I am the representative of the justice system that has to explain the process and what is going to happen to them.
Some ask me if they will ever be able to come to the United States lawfully in the future. I tell them that even though I am not an immigration attorney and only know the basics of our immigration system, at the conclusion of their case they will have a felony conviction, which means it will be extremely difficult to get permission to enter the United States in the future. I advise them that, when they return to their home country, they should go to the nearest U.S. embassy or consulate and speak to the immigration people there. I also tell them to consider hiring an immigration attorney in the United States to work on their behalf.
I always tell them not to return to United States without permission because they will be facing increased penalties because of the criminal history they will have after their case is over.
Almost inevitably, they ask me about the property they had when they were arrested. “The Border Patrol agent told me that my attorney can pick up my property.” I then have to explain to them that this is technically true, that I can get their property for them. But then I tell them the bad news: As an appointed attorney, the court will not compensate me for retrieving their property, for storing their property, and making sure it gets back to them before they are deported.
They can get a family member who is lawfully in the United States to get their property, but that rarely happens. If no one retrieves their property, it is the policy of the government the El Paso sector of the U.S. Border Patrol to hold on to their property for 30 days from the date of their arrest. After that, in all likelihood, their property — their money, their cell phones, and their personal belongings — will, as the Customs and Border Patrol Policy states, “be considered abandoned and may be destroyed.”
Many of these people have saved money for months, if not years, and have also risked their lives to make this trip. Despite the fact that they come from poor countries, most have cell phones and, just like us, their entire lives are in those phones.
Though some of these defendants come from countries in Central America, the vast majority are from Mexico. The Mexicans are often deported to Juárez, a city of over one million people with a notorious reputation for violence. Many of my clients come from the southern states of Mexico like Chiapas, Oaxaca, and Guerrero, and face a long and often dangerous journey to get back home. They suddenly find themselves in an unfamiliar place with no identification, no money and no way to contact their families to send them money to get back home.
Undoubtedly, many become the victims of crime or are victimized by the cartels. Others, more desperate than ever, try to re-enter the United States unlawfully again, but now they have a felony conviction and can no longer expect a sentence of time served if they are caught.
Wrong and unnecessary
The arbitrary policy of the United States government holding on to detainee property for only 30 days after the detainee’s arrest is wrong and unnecessary. In researching this column, I was informed that in other parts of the United States, the federal government holds onto detainee property for a longer period of time before destroying it. In the Tucson sector, according to information I found, Customs and Border Patrol holds on to detainee property for 30 days after the prosecuted individual has been released from custody, not 30 days after arrest like here in the El Paso sector.
The common response to this criticism of the government’s policy is that these people decided to break the law by entering without permission and therefore they must face the consequences of losing their property for breaking our laws. However, the law does not provide that kind of punishment for this offense. While a fine can be imposed (and in practice, our judges never impose a fine because they know that the defendant has no ability to pay it), Congress has made no provision that personal property be forfeited for being guilty for this type of crime.
The Founders of our U.S. Constitution ensured that it protects all persons, not just citizens, and affords all with rights, privileges and protections under the law, such as the right to not be deprived of property without due process of law or to be subject to an arbitrary and capricious government policy. Unfortunately, Customs and Border Patrol officials in the El Paso sector do not seem to understand this.
Not only have defense attorneys criticized this policy, some of our local federal judges, like U.S. District Judges Robert Brack and Kenneth Gonzales, have also been critical, stating in an October 2015 email that, “Criminal immigration offenders too frequently are not receiving their personal property after sentencing and before they are returned to their home country.”
Unless and until there is political will to change our immigration laws, those of us living on the border will have to deal with these issues. I always tell my clients that I am a lawyer, not a politician, and real change can only come from those in power. But I feel it is necessary for me to speak out about our government’s policy and the need for a new policy to be implemented. It is certainly time for our politicians to take action.
Nearly all of these detainees are processed for deportation through the Otero County Processing Center near Chaparral, N.M., and there is no reason why detainee property could not be held at a location near the processing center and transferred to the detainees prior to deportation. At a minimum, the detainee’s money, cell phone and identification cards should travel with the detainee so that when they are deported they will have a much easier time getting back home instead of being tempted to just try to cross right back into the United States.
We cannot neglect our responsibility to these detainees to treat them fairly, and we cannot neglect the responsibility we have to ourselves to uphold the values that make our country great.
C. J. McElhinney is an attorney and owner of the McElhinney Law Firm (cjmlawfirm.com and on Facebook at facebook.com/cjmlawfirm). He has practiced law in New Mexico since 2003 and handles criminal defense, personal injury, and civil rights cases.