Play Live Radio
Next Up:
0:00
0:00
Available On Air Stations
KPBS Midday Edition

Is The US Discriminating Against Central Americans In Border Prosecutions?

People who traveled with the annual caravan of Central American migrants, rest where the group set up camp to wait for access to request asylum in the US, outside the El Chaparral port of entry building at the US-Mexico border in Tijuana, Mexico, Monday, April 30, 2018.
Associated Press
People who traveled with the annual caravan of Central American migrants, rest where the group set up camp to wait for access to request asylum in the US, outside the El Chaparral port of entry building at the US-Mexico border in Tijuana, Mexico, Monday, April 30, 2018.
Is The US Discriminating Against Central Americans In Border Prosecutions?
Is The US Discriminating Against Central Americans In Border Prosecutions? GUEST: Jean Guerrero, fronteras reporter, KPBS News

>> I'm Maureen Cavanaugh, it's Wednesday, May 23 . The first prosecutions since the start of the Trump administrations zero tolerance immigration policy will begin in San Diego. Three Central American immigrants are scheduled in court to face charges of crossing the border illegally for they gave themselves up to border control agents asking for asylum. The new policy targets first time, a legal entrance and set of repeat offenders. But attorneys for the immigrants say they are being unfairly targeted because of where they come from. Joining me is Jean Guerrero. Welcome back. >> There been a total of 11 people charge so far under Attorney General Jeff Sessions zero tolerance policy. >> These are people who are caught trying to enter the United States illegally in late April. They were identified as being part of a caravan of central Americans that it captured national attention as President Donald Trump singled them out on social media and in his speeches saying they would not be allowed in the United States. This was a caravan of mostly central Americans, primarily from Honduras. They were fleeing violence and planning to seek asylum in the United States. Most of them did march to the word of entry where they sought asylum by closing -- crossing through the port of entry. These individuals crossed illegally. >> What can you tell us about the claims of discrimination being made to these defendants? What are they based on? >> The three women who are having a hearing were arrested in large groups of people. After they crossed the border illegally, they were arrested by border patrol. They say the only people in the group is who were arrested, who are prosecuted were central Americans. With the exception of one Mexican. For example, three Indians who are in the same group were arrested, they were let off the hook for prosecution. So, there remained in the Department of Homeland Security custody rather than being transferred to the U.S. marshals. While Jeff Sessions says the department of justice will not be prosecuting 100% of illegal border crossings, the defense attorneys and these women say the prosecutions are discriminatory. Their cases are an example of that. They say this violates the fifth amendments due process clause which prohibits prosecution based on race and nationality. As further evidence of the alleged discriminatory nature of the prosecution, the attorney is also pun -- -- pointing to Trump Max tweets about the caravan. It has been made up of a bunch of people from Honduras. >> What is the U.S. governments response to those segments? >> U.S. government says it didn't go after these people because of their country of origin. They went after these people because of the membership in that caravan. They wanted to prosecute people who were part of the caravan as a way to deter future caravans. This is a strategy in San Diego's border patrol sector done in collaboration with the Department of Justice. I found this out by looking at the court documents that were filed before the hearing. But the U.S. government also argues that most immigration related prosecutions between January last year and May of this year were of noncentral Americans. They point out in the court filings that only 171 of nearly 3000 prosecutions were of central Americans. Even if these women want to argue there was discrimination that occurred in the groups, they say, if you take a broader look at they tenancy, there is no discrimination happening. >> Most of the members of the Central American caravan, you told us this, he turned themselves in at this and you Cedro order of entry. Why did others choose to cross illegally into the United States? >> Right, more than 200 crossed through the port of entry. They did so very slowly because the port of entry had reached capacity. The United States could only take a few people at a time. It had reached capacity and people were having to wait outside of the port of entry before being accepted into the United States. That is part of what motivated some of these people to cross illegally. A lot of these people feared for their lives and believed they were being chased to the part of entry so they wanted to get into the United States as quickly as possible. U.S. federal law does this -- say that people can apply for asylum regardless of how they entered into the United States. So long as they present themselves to a border official promptly and not try to evade capture, they can still off fly -- apply for asylum. >> That is apparently what these people did? >> Exactly. There is no indication that the people try to run. They stood there waiting and kept walking towards the butter -- border control officers. >> Are the attorneys trying to get the prosecutions dismissed because of this discrimination claims? >> Exactly. They are asking the judge to dismiss the complaint on selective prosecution grounds. >> What happens to the immigrants asylum claims if this prosecution continues? >> The processes are separate. They can continue to seek asylum on the prosecution unfolds. It's worth mentioning that some of these women have made bond in the U.S. marshals custody. Were transferred to immigration and custom enforcement so they are now in dictation -- detention. They will remain there until there asylum claims can be processed. If they are found guilty of illegal entry through the prosecution, that's a federal misdemeanor and they could face up to normal six months in prison. >> I've been speaking with Jean Guerrero, and Q. -- Thank you. >> Thank you.

UPDATE: 4:45 p.m., May 23, 2018

A mysterious list that the Mexican government provided to the U.S., allegedly containing the names of people who were part of a "caravan" of Central Americans that President Trump lamented on social media and in speeches, was a focus of a hearing Wednesday in the prosecutions of three women who crossed the border illegally in late April.

San Diego's Border Patrol chief Ryan Yamasaki referenced the list in a court filing, saying that Border Patrol used the list to determine whom to refer for prosecution.

Defense attorneys say that this list — how it was used and interpreted as well as who made it and why — could buttress their argument that the U.S. government is discriminating against Central Americans in its prosecutions of first-time illegal entry. They asked for an opportunity to cross-examine Yamasaki about the list.

The federal judge in the case, Ruben B. Brooks, said he was "inclined" to side with the U.S. government, but that he would postpone his decision until defense attorneys could file a brief by May 30 regarding their basis for requesting a cross-examination of Yamasaki about this list.

Original Story:

Defense attorneys in San Diego are arguing in U.S. District Court on Wednesday that the U.S. government is discriminating against Central Americans in its prosecutions for first-time illegal entry into the country.

Earlier this month, Attorney General Jeff Sessions said the U.S. launched a "zero tolerance" approach toward illegal border crossings, meaning it would now prosecute even first-time offenders and asylum-seekers.

RELATED: Sessions Says ‘Zero Tolerance’ Policy For Border Crossers May Split Families

Previously, the U.S. focused its criminal prosecutions on repeat offenders due to limited resources.

In immigration proceedings, people who enter the U.S. illegally must often represent themselves in court because they can't afford attorneys. In criminal proceedings, the U.S. must provide them with defense attorneys.

Some of those defense attorneys are saying that Sessions' "zero-tolerance" approach isn't "zero-tolerance" at all. They say officials are targeting people based on their national origins, violating the due process clause of the Constitution's fifth amendment.

Ten of the first 11 people who were charged under the new system are from Central America, mostly from Honduras. In court filings, the U.S. government counters that it's not targeting people based on their national origin but based on their membership in a caravan that provoked the anger of the Trump administration.

"It was an enforcement priority to deter caravan members from trying to enter the United States illegally," said San Diego's assistant Border Patrol chief Ryan Yamasaki in the court filings. "To accomplish this objective, Border Patrol's San Diego sector determined that we would seek criminal charges against those individuals who were identified as caravan participants."

First time illegal entry is a misdemeanor punishable by up to 6 months in prison.

Attorney Eric S. Fish has three clients from Central America who are asking the judge to dismiss the charges against them based on discrimination on Wednesday. In court filings, Fish notes that his clients were arrested in large groups of people who were crossing the border illegally, including people from India who were not prosecuted.

He said this shows that the U.S. is unfairly discriminating against Central Americans in its prosecutions. Fish also pointed to President Trump's tweets and comments singling out the caravan as a group of "Hondurans" who should not be let into the country.

The U.S. government counters that between January 1, 2017 and May 11, 2018, non-Central Americans "make up the bulk of immigration-related prosecutions" in the San Diego and El Centro sectors. Only 171 of nearly 3,000 prosecutions were of Central Americans, according to the court document.

Is The US Discriminating Against Central Americans In Border Prosecutions?
Is The US Discriminating Against Central Americans In Border Prosecutions?
Defense attorneys in San Diego are arguing in U.S. District Court on Wednesday that the U.S. government is discriminating against Central Americans in its prosecutions for first-time illegal entry into the country.