Immigration judge says system is broken

Federal District Judge Robert Brack might be called the busiest in America. He sentenced more than 6,900 people between 2009 and 2013 - more than any of his federal colleagues. In a typical first hour of the morning, he told The Monitor Weekly in September, he has already sentenced 14 defendants by his second cup of coffee. Got an image of a hard-nosed, tough guy? Not so, he says.

So why then does he hold the sentencing record? His district court is in Las Cruces, N.M., and his docket is heavily weighted with immigration cases. He creates felons daily, almost none of them violent or drug-related, but most border-crossers. Arresting and criminalizing illegal immigrants, rather than simply deporting them, represents a significant policy change since Brack became a judge in the 1990s.

What does the busiest and likely most experienced immigration judge call the current system? "Broken."

These prosecutions, including jail time, are happening in record numbers as unprecedented resources are directed to immigration enforcement. During one fiscal year, according to justice statistics, immigration offenses make up 53 percent of all federal prosecutions (more than non-immigration felonies such as drug and violent offenses) nationwide, and comprise 80 percent or more in districts along the southern border. Today the government spends 15 times more just on immigration enforcement than it did on the entire Immigration and Naturalization Service in 1986, the last time immigration laws were significantly rewritten.

That's as proponents think it should be, on the theory that it would dissuade potential immigrants from coming, or repeaters from coming back, over the American South's porous borders. However, it comes with a price tag: strained court dockets, overworked judges and prosecutors, overfull jails with strained incarceration budgets, and - the focus of Judge Brack's concerns - uneven justice and fractured families.

During his early tenure as a judge, Brack saw in his courtroom only "frequent fliers" who repeatedly tried to enter illegally, and what he termed as the rare offender with non-immigration related criminal history. The rest were generally turned back or deported, without criminal prosecution.

Now with policy changes, he must send a high percentage of economic immigrants to jail, most of them with families they're seeking to support because they can't make enough back home. Why do they come, even knowing they may go to jail?

The judge asks each of them. Things are just that bad at home, they tell him; they can make more here, as much as double income, and they need to. To send children to other towns with a school. To feed the family, because jobs where they live are neither plentiful nor sustaining. In some cases, to help seriously ill spouses or relatives who can't work.

So they risk it anyway, says Brack, who says most of the people he sentences as felons are people who would otherwise make "good citizens," wherever they may live. Statistically speaking, immigrants, whether legal or illegal, male or female, are less likely to commit non-immigration related crimes than are native U.S. citizens.

Sending such people to jail is wearing on the judge, whose ornamental granite conference table was fashioned (unbeknownst to him) by an immigrant who later appeared in his courtroom. He discovered the coincidence while sentencing the man for felony reentry.

"There wasn't a thing I could do - or did - to prepare myself for the heartbreak associated with what we do every day," he told The Monitor. "I want people to know what immigration looks like on the ground... and put on the line the notion that these are hardened criminals seeking amnesty and using amnesty like it's a dirty word. It's just not true."

Those citing or relying upon immigration statistics should be cautioned; upon further research I discovered that the content of statistics has changed over the decades, even officially and as late as 2012. What is counted as "deportation," "arrest," and other terms related to enforcement is the question. Are those numbers ICE-only (Immigration and Customs Enforcement, f.k.a. the INS), whose enforcement action numbers are up over the last five years? Are they U.S. Border Patrol only, whose arrest numbers are down in the same period (except for a short spike in 2012), or both? Do they include "interior" enforcement, in addition to border? Are they "removal" only, or all forms of deportation? There is a vocabulary here that may or may not be fully reflected in various statistics, so conclusions may not be fully informed.

Judge Brack's caution is against losing the human face of this fully human equation; regardless of the desired result in immigration numbers, criminalizing people seeking to sustain their families is something he calls "tragic." The Las Cruces courthouse conference table has a winding, light brown strip down its center. It somewhat ironically symbolizes the Rio Grande, the long river which connects Mexico to its northern "neighbor."

Sholeh Patrick is a columnist for the Hagadone News Network and first-generation American. Contact her at [email protected].