What will happen to caravan members who cross illegally into the U.S.?
As the sun set Tuesday over Playas de Tijuana, four members of the migrant caravan that has been camped in the city for weeks climbed over a low spot in the new border barrier and were immediately caught by Border Patrol agents.
In the past several days, multiple media outlets have observed small groups of caravan members who have grown desperate in the conditions of temporary shelters in Tijuana and decided to try their luck climbing the border barrier, or in at least one instance swimming around the fence that extends into the ocean at Friendship Park.
Asylum seekers who cross the border illegally often look for immigration officials to turn themselves in and ask for protection, known to agents as “self-surrenders.”
Tuesday’s climbers chose a point in the recently replaced primary fence where the structure changes direction slightly and a shorter metal plate fills in the gap between taller bollard-style fencing. Migrants hung a white bed sheet on top of the metal plate to use to pull themselves over. It still hung on the barrier as dusk closed in on the area.
Border Patrol vehicles drove up and down, monitoring where the migrants had crossed. Mexican immigration officials also stood nearby. They said they planned to try to deter more migrants from crossing the border there.
A short while later, a group of eight, including one woman and a young girl, emerged in the darkness to follow the other group over. The girl was small enough to be able to squeeze in between the posts, and a man climbed up to help the adults over.
When agents responded, the group quickly crossed back and disappeared toward Tijuana. The mother and daughter had planned to ask for asylum, but none of the men wanted to get caught.
While some are determined to wait out the ballooning asylum line at the San Ysidro port of entry, other members of the caravan see crossing illegally as a way to set foot on U.S. soil more quickly.
Juana Matutet, a 42-year-old woman from Honduras, said a smuggler came to the sports complex that through most of last week housed the caravan to offer to help people across to turn themselves in to U.S. officials for $150.
Noel Miguel Ramos, a 29-year-old man from El Salvador who joined the caravan in Mexico, said he planned to wait for heavy fog to roll in before trying to cross by himself. He’s been studying Google Maps to plan his route.
“I don’t have anything to lose,” Ramos said. “Trump said he won’t let us in.”
Many of those who have crossed in recent days were subsequently apprehended by Border Patrol. However, it does not appear that many, if any, have been prosecuted criminally on illegal entry charges in federal court.
Even a man with a murder conviction in Honduras spotlighted by the Department of Homeland Security as evidence of “known criminals” in the caravan after he was caught by Border Patrol agents in late November has not been charged.
The U.S. Attorney’s office referred the Union-Tribune to Customs and Border Protection when asked about the lack of criminal charges. CBP declined to say why some cases are forwarded for criminal prosecution and others aren’t, including those who are part of the caravan.
The agency also would not say how many caravan members have been apprehended after crossing illegally nor how many have been referred for criminal prosecution.
The Trump administration began its “zero tolerance” policy shortly before the last migrant caravan arrived in Tijuana, pledging to charge everyone who crossed the border illegally. Though a class-action lawsuit over the separation of families led to fewer parents being prosecuted, zero tolerance has steadily charged adults caught crossing illegally.
The policy flooded border courts with cases, and judges in the Southern District of California implemented a program, known informally as “Streamline,” used elsewhere along the border to speedily negotiate guilty pleas from border crossers.
Illegal entry is a federal misdemeanor, and those who plead guilty under Streamline are generally sentenced to time served and then handed back to immigration officials for deportation or asylum processing, depending on the individual case. Illegal reentry is a felony and can come with months or even years in federal prison.
Federal Defenders of San Diego, which provides legal defense to those who can’t afford private attorneys, has been told in recent weeks to prepare to represent a large influx of caravan members, said supervisory attorney Kasha Castillo.
Defense attorneys say many of their clients in unrelated felony cases have been moved from federal custody in downtown San Diego to detention facilities around Southern California in the past week or so, possibly to clear bed space in San Diego in anticipation of caravan defendants.
On Monday, none of the 20 defendants in the Streamline court were identified as members of the caravan. On Tuesday, four defendants — an unusually low number for the Streamline docket — went before a judge. They also didn’t appear to be part of the caravan. On both days, most, if not all, were from Mexico, not Central America.
President Donald Trump tried at the beginning of November to bar those who cross illegally into the U.S. from making asylum claims. Shortly thereafter, a federal judge blocked Trump’s proclamation from taking effect, saying that Congress clearly set out in law that asylum seekers could make their claims irrespective of their manner of entry into the country.
“Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” wrote U.S. District Judge Jon Tigar.
Despite the judge’s order, someone crossing illegally could face additional hurdles in his or her asylum application, according to local attorneys.
When judges or immigration officials are making decisions that involve discretion, such as deciding whether to release someone from custody while his or her case is pending, having a criminal conviction for illegal entry could become a factor.
Following former Attorney General Jeff Sessions’ changes to immigration case law, asylum officers received a memo in June telling them, among other things, to consider a person’s manner of entry as a factor when deciding whether to allow someone to apply for asylum.
“USCIS personnel may find an applicant’s illegal entry, including any intentional evasion of U.S. authorities, and including any conviction for illegal entry where the alien does not demonstrate good cause for the illegal entry, to weigh against a favorable exercise of discretion,” the memo says.
It’s not clear how much of an effect the memo has had on outcomes from asylum officers’ interviews with migrants.
Immigration and criminal defense attorney Andrew Nietor said he would advise people to go through the port of entry even though there are well over 5,000 waiting in line in Tijuana to ask for U.S. protection. It will likely be at least a couple of months before those now at the back of the line reach the front.
Tammy Lin, a San Diego immigration attorney, said soon after the caravan’s arrival that she worried some would get frustrated with the months-long wait at the port of entry and decide to cross illegally.
“What I tell people typically is this — asylum is already really hard to begin with,” Lin explained. “The last thing you want to do is take some action that is putting you behind.”
Jaruzelki Edimor, a 27-year-old from Honduras, said he understands the importance of being patient.
Crossing illegally “would complicate things because we’d be violating the law,” Edimor said. “It is better to do things the right way.”
Cristian Mejilla, an 18-year-old from El Salvador, said he’s scared to cross illegally, but he’s also afraid of applying for asylum because it’s not guaranteed. Part of him wants to stay in Mexico, but his goal is to keep going north. He has heard of people crossing by the beach and the airport in Tijuana. Others have gone to Tecate.
“I made such a big effort to get here. I’m scared of getting caught and being deported,” Mejilla said. “If there is no other way to go to the U.S., I will cross like them.”
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