Border Patrol Looks to Close Loophole on Non-Mexican Immigrants

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If a Mexican citizen crosses the U.S. border and gets caught, the person is deported within hours. But non-Mexican citizens who are detained are allowed to stay with a government-issued slip. NPR's John Burnett reports on the immigration policy that has allowed thousands of undocumented people to go free.

SUSAN STAMBERG, host:

Here's a scenario. An immigrant tries to enter the US from Mexico without a visa. Happens every day, sometimes with dire consequences, but if it is a non-Mexican immigrant, the scene loses its tension. If US authorities catch him or her, he will be released and can continue the journey legally. It sounds like a sweet deal and that's exactly what's happening all across the Southwest border as many non-Mexican illegal immigrants take advantage of a glaring loophole in US immigration policy. The government is scrambling to plug that hole, but NPR's John Burnett reports it is not so easy.

JOHN BURNETT reporting:

Border Patrol agents are among the last law enforcement officers who track their suspects. They learn how to read footprints on a dusty farm road, to spot unusual pocket trash on the ground, to notice broken twigs and trampled grass. These days here in the sweltering southern tip of Texas, if they capture a group of illegal crossers, many of the immigrants go free.

Mr. GREGORY REYES (Senior Border Patrol Agent): It's demoralizing for the agents because all the work we're doing is for nothing basically, you know? We're just like a stepping stone sort of call.

BURNETT: Senior Border Patrol Agent Gregory Reyes stands at a sunbaked clearing down by the lazy Rio Grande, a favorite crossing spot for immigrant and drug smugglers. He says his agents have been forced into a policy of catch and release. Most illegal Mexican immigrants opt for voluntary departure and they're shuttled back to the border within hours. Non-Mexican immigrants, however, are allowed to stay in the country while their deportation cases are heard. And because of an acute shortage of detention space, illegal aliens known in border parlance as OTMs, other than Mexicans, are usually set free if they've committed no crimes. It's the honor system. After promising to appear before an immigration judge, they're given papers called a permisso, a permission slip.

Mr. REYES: 'Cause that's basically what it is. It's that we give them a court time and date, and sometimes they don't show up. That paper gives them the opportunity to go across the checkpoint and get further into the country.

BURNETT: About one of every eight arrests by the Border Patrol are non-Mexicans, but the number of OTMs has increased dramatically in recent years says Border Patrol Supervisor Roy S. Cervantes because they've gotten savvy. They know if they're captured they'll get a permisso.

Mr. ROY S. CERVANTES (Border Patrol Supervisor): A lot of the times, smugglers educate their groups of aliens and they tell them that if they're arrested by the Border Patrol and they are issued these papers to walk, they will pick them up again after they are released and continue their trip to wherever they are going.

BURNETT: In fiscal 2003, almost 8,000 OTMs were caught and released. Last year, that figure quadrupled. And in the first nine months of this fiscal year, it's already doubled again to more than 71,000 undocumented immigrants who walked.

Unidentified Woman: (Foreign language spoken)

Mr. JOHN DOSANTOS(ph): (Foreign language spoken)

BURNETT: One of those was John Dosantos, a 27-year-old computer data entry clerk from Gleich(ph), Brazil. On a recent afternoon, he sat in the modern sun-lit bus station in McAllen, Texas, waiting for a Greyhound to Atlanta where a friend was waiting to help him find work.

Mr. DOSANTOS: (Foreign language spoken)

BURNETT: Dosantos says he rode a bus to Sao Paulo, flew to Monterrey, Mexico, called a smuggler whose name he got from a friend. They drove to the border and, at 5 PM on June 20th, swam the muddy Rio Grande. The Border Patrol caught him within minutes. Brazilians currently comprise the largest group of OTMs followed by Hondurans, Salvadorans, Guatemalans and Chinese.

Mr. DOSANTOS: (Foreign language spoken)

BURNETT: `Yes, I do plan to return to this city and show up in immigration court,' the Brazilian says earnestly. `I'm going to get all my papers in order.' That, federal court records show, is highly unlikely. Most OTMs simply disappear.

I'm standing here in front of what has to be the loneliest courtrooms in America. They're the federal immigration courts in Harlingen, Texas, housed in a former grocery store in a quiet downtown street lined with palm trees. This is where illegal immigrants are supposed to appear to make their cases as to why they should be allowed to stay in the United States, but these courts have the highest no-show rate in the country. Last year, 98 percent of the defendants failed to appear to their hearings. On this morning, Judge William Peterson read the names of 37 illegal immigrants, about half Brazilians and half Central Americans, to an empty courtroom. After much paper shuffling and rubber-stamping, the judge pushed a tall stack of blue folders to his assistant. Then he intoned, `The court orders each respondent removed from the United States to their country of nativity.'

Recording was not allowed in the courtroom. At the end of the morning session, Judge Peterson looked up and commented, `It's the same show every day. A little disturbing, isn't it?' He's not the only one upset. Congress has asked the Department of Homeland Security to do a better job handling the crush of illegal immigrants, but there's no easy fix. First, there's the problem of detention space. US Immigration and Customs Enforcement, ICE, estimates there are a total of 465,000 fugitive absconders in the country, but the government only has beds for 20,520 detainees, and these are reserved for high-risk aliens, those wanted on criminal charges. An additional 2,000 beds budgeted for next year will help...

Mr. DEAN BOYD (Spokesman, ICE): But I'm not going to tell you that additional beds will immediately solve this problem.

BURNETT: ICE spokesman Dean Boyd says in order to free up detention space, it's just as important to reduce the average time it takes to deport a non-Mexican immigrant, which is currently 89 days.

Mr. BOYD: I'll tell you, we face a host of logistical and legal difficulties removing non-Mexicans. I mean, some governments may not have diplomatic relations with the United States. Some of the governments may not be willing to issue passports to these individuals, which ultimately results in that individual sitting in detention for lengthy periods of time and occupying a bed space and clogging the system.

BURNETT: ICE, under sharp criticism from Congress, is considering a number of ideas to close the catch-and-release loophole. They're experimenting with expedited removal that shortens the time it takes to deport illegal non-Mexican immigrants. As an alternative to detention, they're trying out electronic monitoring such as ankle devices to keep track of aliens while they await their court dates. And ICE has more than doubled the number of immigration SWAT teams that work in selected cities rounding up criminal immigrants. Fear that terrorists may enter the US via well-established Mexican smuggling routes has added urgency to immigration law reform. Later this month, two Republican senators will introduce wide-ranging legislation that includes a crackdown on alien absconders. They are Jon Kyl of Arizona and John Cornyn of Texas.

Unidentified Man: Well, the problem is, we don't really know why these people have come into our country, and we can't locate them because we don't have additional resources committed to that effort, and we know that terrorists will take their time.

BURNETT: As for the more than 70 Brazilians arrested and released in south Texas every day, agents believe they just want a job.

John Burnett, NPR News.

STAMBERG: This is NPR News.

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