UPDATE: 3:30 p.m., May 10, 2018
The Department of Justice declined to comment Thursday on allegations that the U.S. government is discriminating against Central Americans in its prosecutions of illegal border crossings.
Original Story
On the last weekend of April, as a caravan of Central American migrants waited in Tijuana to seek asylum at the United States border in San Ysidro, 29 undocumented immigrants were arrested by Border Patrol agents for allegedly trying to sneak into the country, but only 11 of those detainees were later charged with a crime.
Now, two San Diego-based defense attorneys are using tweets and statements from President Donald Trump and Attorney General Jeff Sessions to argue that their six clients — purported members of the Pueblo Sin Fronteras caravan — were unlawfully singled out for prosecution because of their countries of origin.
"Despite an ostensible 'zero-tolerance' policy toward illegal entries, the government declined to prosecute (three) alleged Indian citizens while simultaneously filing charges against the alleged Central Americans," attorneys Eric S. Fish and Richard Boeson argued in a series of motions filed this week and last in U.S. District Court in San Diego, seeking to have the cases dismissed.
Fish, an attorney with the Federal Defenders of San Diego, represents five of those charged, while Boeson, a private attorney contracted as a public defender, represents one of the defendants. As evidence, the attorneys cite tweets and statements that they say show Trump and officials in his administration singled out the migrants from the caravan, Central Americans and migrants from Honduras.
"The words and actions of the President of the United States, the Attorney General and the United States Attorney for the Southern District of California have made plain that the reason (our clients) and other arrestees were prosecuted was precisely due to their alleged Central American origin," the attorneys argue in their court papers.
They're asking the court to dismiss the six cases on the grounds of selective prosecution.
"The government cannot choose its defendants based on their alleged country of citizenship, but that's exactly what it did here," Fish and Boeson wrote.
It was unclear if the attorneys for the five other alleged migrant caravan members would seek a similar defense.
Special Assistant U.S. Attorney Davis Loop, the lead government prosecutor in the case, did not immediately respond to a request for comment. Government lawyers are expected to file their responses to the dismissal motions by Monday, and a judge could rule on the motions by Wednesday.
The cases stem from charges filed in the federal court in San Diego against 11 suspected members of the Pueblo Sin Fronteras migrant caravan, which traveled through Mexico in March and April and reached the U.S. border at Tijuana late last month. By the time the caravan arrived in the border region, it was made up of about 200 mostly Central American migrants seeking refuge from violence in their home countries.
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Most members of the caravan underwent days of training on the legal process to seek asylum before turning themselves in at the San Ysidro Port of Entry to officially begin their asylum claims. But federal authorities allege that at least 11 members from the caravan tried to cross into the U.S. illegally between April 27 and April 29.
According to court documents, the 11 migrants charged with misdemeanor counts of illegal entry were among 29 people arrested in five separate crossing attempts on April 27 and April 29. Court documents said 15 of those arrested were from Honduras, six from El Salvador, three from Guatemala, three from India and one from Mexico.
So why were only 11 of the 29 charged?
One reason is that some who were arrested were children. But Fish and Boeson argue their six clients were targeted for prosecution specifically for being alleged Central American migrants suspected of being members of the caravan.
"Border Patrol agents arrested 18 people on April 27, 2018, including three people it believed were citizens of India ... (but) only people the government believed were from Central American countries were prosecuted," Fish and Boeson wrote in their dismissal motions. "The government itself admits that it targeted what it believed to be members of the caravan, that it arrested non-Central American migrants in the same group, and that it prosecuted only those people whom it believes are citizens of Central American countries. ... This kind of invidious discrimination in charging decisions violates the Fifth Amendment's guarantee of Due Process and equal protection, and the Court should dismiss the complaint(s)."
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In a statement issued May 1, Attorney General Jeff Sessions praised the prosecutions and derided the "so-called caravan" and those suspected of trying to sneak across the border. He said "the United States will not stand by as our immigration laws are ignored and our nation's safety is jeopardized."
In April, Sessions had issued a new "zero-tolerance policy" directing U.S. attorneys in districts along the U.S.-Mexico border to "prosecute all" illegal border crossers "to the extent practicable."
But the government's failure to prosecute the three Indian citizens proves that the Central Americans were unlawfully targeted, Fish and Boeson argue in their court papers.
"The Due Process clause forbids the government from making charging decisions based on 'an unjustifiable standard such as race, religion, or other arbitrary classification,"' the attorneys wrote. "The probable cause against the citizens of India was ... exactly the same as the probable cause against (the Central Americans). However, as trumpeted by the Attorney General in his press release, only (our clients) and the individuals the government claims are from Central America have been prosecuted — the government has chosen not to prosecute the citizens of India. The facts the government admitted in its own sworn statement of probable cause plainly demonstrate that the government's prosecution decisions have had a discriminatory effect."
