Barack the Enforcer

Despite grousing from congressmen and state officials in Arizona and Texas — notably Gov. Rick Perry — that the Obama administration has abdicated its role in the protecting the nation's borders from illegal immigration, the Department of Homeland Security’s largest investigative units this year each recorded their highest number of cases referred for prosecution since the Bush administration.

The 4,145 cases referred for prosecution in March and April of 2010 by Immigration and Customs Enforcement, or ICE, marked the highest total since 2005, when the agency was created, according to a report from the Transactional Records Access Clearinghouse at Syracuse University. Customs and Border Protection, or the CBP, also saw its largest spike since the Bush era in March and April, with 14,912 cases referred for prosecution — the highest since September and October of 2008.

When broken down by judicial districts, two of the top three spots in the number of ICE and CBP cases referred for prosecution are in Texas. The Southern District of Texas ranked first and second in ICE and CBP referrals, respectively. The Western District of Texas ranked third in both categories. Arizona — whose implementation of an immigration crackdown, gutted Wednesday by a federal judge, came in response to alleged federal inaction — ranked first in CBP prosecutions and second in ICE prosecutions during those same months.

The crackdown has drawn the ire of liberals who claim the administration has failed to overhaul the country’s immigration-detention system. The increase “flies the face of what people were hoping for in terms of the new administration: having a smarter and less punitive policy,” says Bob Libal, the outreach coordinator for Grassroots Leadership, an Austin-based nonprofit that advocates for improved private-detention oversight and a return of federal immigration enforcement to civil authorities. In a new report, Operation Streamline: Drowning Justice and Draining Dollars Along the Rio Grande, the group posits that the initiative in its title — a Bush-era policy mandating most undocumented immigrants detained on the Southwest border be prosecuted through the federal criminal justice system — has clogged court dockets and infringes upon detainees’ due-process rights. It also consumes federal resources aimed at prosecuting criminal felonies in pursuit of first-time border crossers, according to the report.

Grassroots Leadership found that by 2009, 54 percent of all federal prosecutions were immigration-related. Even before the record highs achieved in the past few months, prosecutions for two federal misdemeanor charges, Improper Entry by Alien and Reentry by Removed Alien, numbered 46,470 in the Southern and Western Districts of Texas alone. The previous high mark was 41,366 in 2008.

Libal, one of the report's authors, says the staggering caseload of public defenders limits their ability to fully represent their clients. Interviews with public defenders in Texas revealed that 95 percent of their cases — up to 180 a day — were for the two misdemeanor violations.

“Some people [also] have claims of immigration release. Some people might have a claim of being U.S. citizen, might have an asylum claim or a trafficking claim or a sexual violence claim,” he says. “It’s not articulated how people make that claim when they are in this criminal process, especially of the process happens so quickly.”

Add to that, he says, that the federal government has doled out $1.2 billion to private prisons in Texas that are owned and operated by companies like the GEO Group and Corrections Corporations of America, which have track records of alleged inmate abuse and corruption. The figure represents monies spent to detain immigrants convicted only of those two misdemeanors. The amount has critics balking that the money could be better spent; it is almost as much as the enitire value ($1.4 billion) of the aid package known as the Merida Initiative, which is supposed to provide training and equipment to the Mexican and Central American governments to help them combat violence and smuggling within their own borders. And recently the federal government acknowledged in an accountability report it could better evaluate “progress toward achieving alien smuggling-related program objectives.”

Despite the surge in arrests and prosecutions, some Republicans argue it still isn’t enough. Perry’s office did not respond to a request for comment, but U.S. Sen. John Cornyn took the lead among his fellows Republicans in harshly criticizing administration policy. Asked if the TRAC data indicated an improvement in border security, his spokeswoman Jessica Sandlin said: “The senator would like to receive accurate data from the agencies of jurisdiction on prosecutions and removals over the past five years.” Cornyn, the aide said, “has seen conflicting data reflecting that noncriminal removals and overall deportations are in fact down since [fiscal year] 2008.”

According to data the senator’s office received from a GOP member of the House Judiciary Committee, criminal removals in the country increased by more than 21,700 from 2008 to 2009, but noncriminal removals dipped by about 3,200 in the same time frame. Cornyn, through his spokeswoman, also reiterated his claim that the Obama administration has failed to act on immigration reform.

Cornyn, Sandlin said, is committed to “credible, bipartisan” comprehensive immigration reform proposals, but no such proposals have emanated from the White House. “To date, Sen. Cornyn has yet to see any legislative text from the president or Democratic leaders in Congress.”