No prosecution demoralizes Border Patrol

SAN DIEGO -- An American teenager was caught sneaking two illegal immigrants in the trunk of a stolen Acura in September 2004. Chances are he wasn't too worried: It was the third time in two weeks he had been caught smuggling migrants, one or two at a time.

After that, the 19-year-old might have given up smuggling, but a fourth arrest two months later suggests he simply got better at it, or luckier. Again, he was released without criminal charges.

"This is an example of a kid who knows the system," states an internal Border Patrol document that decries the lack of federal smuggling prosecutions. "What is true is that he will probably never be prosecuted if he only smuggles one or two bodies at a time."

The report focused on a Border Patrol station responsible for 13 miles of mountainous border east of San Diego. It said that only 6 percent of 289 suspected immigrant smugglers caught there were federally prosecuted for that offense in the fiscal year ending in September 2004.

Some were charged with different counts, but others were released by the Border Patrol or saw their cases rejected by federal prosecutors.

Federal officials say the report, provided to the AP by the office of Rep. Darrell Issa, R-Calif., reflects a reality along the entire 2,000-mile border: Judges and federal attorneys are so swamped that only the most egregious smuggling cases are prosecuted.

"Why are agents putting their lives at risk when the people perpetrating this illegal act just walk away from the whole ordeal scot-free?" the report states. "It is very difficult to keep agents' morale up when the laws they were told to uphold are being watered-down or not prosecuted."

It was unclear who wrote the internal report, which Issa's office said was written last August. Issa has accused the chief federal prosecutor in San Diego of being lax on smuggling cases.

The 41-page report raises doubts about the value of tightening security along the Mexican border without additional measures. President Bush wants to hire 6,000 more Border Patrol agents and dispatch up to 6,000 National Guardsmen, but did not mention overburdened courts in his Oval Office address on immigration Monday.

The lack of prosecutions is "demoralizing the agents and making a joke out of our system of justice," said T.J. Bonner, president of the National Border Patrol Council, which represents agents. "It is certainly a weak link in our immigration-enforcement chain."

The report says federal prosecutors in San Diego typically prosecute smugglers who commit "dangerous/violent activity" or guide at least 12 illegal immigrants across the border. But other smugglers know they are only going to get "slapped on the wrist."

The document mentions a Mexican citizen who was caught in Arizona and California driving with illegal immigrants and was released each time to Mexico. He was prosecuted the fourth time, when two illegal immigrants in his van died in a crash, and sentenced to five years in prison.

U.S. Attorney Carol Lam in San Diego said about half her 110 attorneys work on border cases in an area where the Border Patrol made nearly 140,000 arrests last year. She said she gives highest priority to the most serious cases, including suspects with long histories of violent crime or offenders who endanger others' lives.

"We figure out how many cases our office can handle, start from the worst and work our way down," she said.

Lam said many suspected migrant smugglers are prosecuted instead for re-entering the country after being deported, a crime that can be proved with documents. Smuggling cases are more difficult to prosecute because they require witnesses to testify.

The Border Patrol, which would neither confirm nor deny the document's authenticity, said prosecutors in San Diego recently agreed to prosecute a Top 20 list of smugglers if they are caught.

The Justice Department in Washington declined to comment. However, at a congressional hearing last month, Rep. Ric Keller, R-Fla., told Attorney General Alberto Gonzales that Lam's record on migrant smuggling was "a pathetic failure." Gonzales replied that he was urging U.S. attorneys to more actively enforce laws but noted that immigration cases were "a tremendous strain and burden" along the border.

Peter Nunez, a former U.S. attorney in San Diego, said prosecutors along the border struggle with limited resources and a huge caseload of immigration cases.

"This is not an indictment of the U.S. Attorney's Office, because you have to deal with the realities of the caseload, but it is an indictment of how badly Congress and presidents have handled the immigration system," he said.

The report says immigrants in the area paid an average of $1,398 to be guided across the border in 2004.

"Smugglers are making lots of money breaking the immigration laws, and there is not much incentive for them to stop these illegal activities," it says. "The smugglers know that even if they are caught, it will be difficult to punish them."