Immigrant justice is a revolving door in Pittsburgh

Those found guilty of illegal re-entry are jailed, deported

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Carlos Portillo-Tobar had a lot to worry about as he waited to be deported to El Salvador. High on the list was how to pay the men who helped him sneak into the United States.

"The coming over is a very dangerous trip," he said, through an interpreter, as he sat in a holding cell in early November. "You have to pay to get across from Mexico to the U.S. I still owe money from the crossing."

Sentenced to time served for illegal re-entry into the U.S., Portillo-Tobar, 34, was one of 51 people charged federally in Western Pennsylvania in 2012 for immigration-related crimes. That's a tiny fraction of the volume of cases seen in southern border districts. But on top of 2011's local record of 85 immigration-related federal cases, it suggests that the revolving door of immigrant justice has come to Pittsburgh.

The Obama administration has said that the nation's apparatus for detecting, prosecuting and deporting illegal immigrants is busy rooting out dangerous elements. A Dec. 21 press release from federal Immigration and Customs Enforcement, or ICE, touted the "administration's focus on removing from the country convicted criminals."

PG graphic: Immigration charges
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However, Portillo-Tobar's case -- in which repeated immigration is the only known crime -- is the rule, not the exception, locally and nationally.

The administration is now weighing options for dealing with people like Portillo-Tobar, as long-simmering concerns about an undocumented population estimated at more than 11 million nationally intersect with economic and political realities. As federal prisons fill with border jumpers, immigration reform is at or near the top of the post-inauguration to-do list, according to many observers.

Bad breaks

Hailing from the agricultural town of Caserio los Conacastes, and the father of a now-11-year-old girl, Portillo-Tobar could find no work in his hometown. He didn't want any part of the criminal mega-gangs, with tens of thousands of members, that dominate Salvadoran cities.

Around 2006, he sneaked into the U.S. and found work in Texas, first chasing storms for the resulting roofing work, then learning masonry. "I was able to support my family while I was working," he said.

In 2009, he was caught and deported. Back home, he tried to make a go of the farming life.

"I had saved some money, so I just worked in the fields, growing corn," he said. He added a boy, now 1, to his family.

His joy was short-lived.

PG graphic: Average costs
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"We had bad weather," he said in Spanish. "I lost my crops. I wasn't able to harvest. ... I lost everything. So I decided to come back."

Because he had little money, he and a friend sneaked from El Salvador to the Mexican border on their own, but there's only so far you can go sitting on top of trains. Smugglers got them across the border.

His brother told him there was work in Pennsylvania. That proved true, and he took a job in a storage facility.

"I only worked for four days, and then the accident happened," he said.

On June 10, Portillo-Tobar "was a passenger in an automobile that was involved in a traffic accident on Interstate 79," in Butler County, Assistant U.S. Attorney Margaret Picking said at his sentencing hearing.

The car hit a deer. State police asked for identification. Portillo-Tobar and his brother, Manuel, didn't have any, so they were referred to Immigration and Customs Enforcement.

The brothers were charged federally. Manuel's case progressed quickly, but Carlos was imprisoned for around five months before he was sentenced and given back to ICE for deportation.

"He realizes that he made a mistake and he will pay for that mistake, and he has paid for that mistake," said his attorney, William Schmalzried, at sentencing.

U.S. District Judge Arthur J. Schwab told him not to come back.

By the time he got home on Dec. 14, his incarceration had cost government agencies an estimated $14,000, based on the system's average costs of $79 per inmate per day.

Back to the border

People found in the United States with neither citizenship nor proof of legal entry have long been deported, unless they can show they have reason to be afraid for their safety should they return home. But there's a shifting border between those who are simply sent back and those who are first imprisoned and criminally prosecuted.

In June 2011, ICE issued a memo outlining when prosecutors should file charges against illegal immigrants, and when they might pass on a potential case.

Prosecutors might choose to let a case slide, the memo said, if the immigrant had been a longtime resident of the U.S., was particularly old or young, had a mental or physical health condition, was a victim of a serious crime, or met a handful of other criteria.

But any immigrant with "negative factors" including posing "a clear risk to national security," a "lengthy criminal record," known gang membership or "an egregious record of immigration violations" should warrant "particular care" -- presumably meaning prosecution -- the memo said.

Why include two-time border jumpers with gangsters, career criminals and national security threats?

"If you're not going to bring some illegal re-entry cases, then the people who are playing by the rules [by going through the legal immigration process] are being prejudiced by the people who have cut the line," said U.S. Attorney David J. Hickton, whose office prosecutes virtually all federal criminal cases in Western Pennsylvania. "We're standing for the proposition that there is a process for legal entry."

Last year the Obama administration and ICE issued another set of guidelines allowing prosecutorial discretion in cases involving young immigrants who were brought to the United States illegally by their parents. Some have been allowed to stay.

Rene Ramirez-Reymundo is a Guatemalan with eight siblings, whose father died when he was 14, prompting the young males in the family to look north to support their family.

Ramirez-Reymundo came to America with a brother, said Jay J. Finkelstein, his assistant federal public defender, at his December sentencing hearing. His brother died in a car accident in the United States, and to get the body from the morgue, Ramirez-Reymundo needed identification. So he bought a fake green card for $80 in West Palm Beach, Fla., retrieved the body, and then used the card to stay employed.

The prosecutor, Ms. Picking, told Judge Joy Flowers Conti that ICE agents found Ramirez-Reymundo, now 21, while searching a home in Pittsburgh. Mr. Finkelstein said his client had been working in a restaurant.

"The court does understand that the defendant has been a hardworking individual," said Judge Conti. That said, he "was here illegally and was using false papers."

She sentenced him to time served, guaranteeing a trip back to Guatemala. Once there, said Mr. Finkelstein, he'll "spend the rest of his life supporting his mother and siblings."

Hardened criminals?

Immigration cases were almost nonexistent in Western Pennsylvania's federal courts until 2005.

The caseload since then, Mr. Hickton said, is "largely a function of what the investigative agencies bring to us," adding that immigration prosecution is "a fluid and evolving situation" because federal policies keep changing.

ICE officers "see the same people coming in and out," said Jacqueline B. Martinez, a Downtown attorney specializing in immigration. "They're keeping better track of them," resulting in more re-entry prosecutions.

"It's a revolving door," she said.

It doesn't spin for free.

The illegal re-entry cases demand valuable prosecutor and public defender time. Even if the offender is deported in a quick two months, the prison bill is nearly $5,000.

The U.S. Sentencing Commission has reported that in 2011, immigration cases made up 35 percent of all federal criminal sentencings -- the largest category, with drugs coming in second at 29 percent. Statistics assembled by Syracuse University's Transactional Records Access Clearinghouse, which monitors the federal justice system, indicate that around four-fifths of the immigration cases filed are for illegal re-entry.

ICE announced on Dec. 21 that in the prior fiscal year it removed 409,849 people from the country -- which observers characterized as a record number -- of which 55 percent had been convicted of a felony or misdemeanor.

ICE's announcement indicated that 83,386 of the people removed -- or roughly 20 percent -- had been convicted of either drug crimes, drunken driving, sexual offenses or homicide. A larger number, though -- more than 96,000 -- were characterized by ICE as "immigration fugitives and repeat violators," including people charged with illegal re-entry.

ICE's claim that it's really after crooks is "very disingenuous," said Emily Tucker, director of policy and advocacy for the Washington, D.C.-based Detention Watch Network. "They'll say, 'We are focusing on convicted criminals.' ... The vast majority of illegal re-entry cases involve mothers and fathers and people who have come here for a better life and haven't harmed another human being."

This year 42 percent of the federal criminal cases handled in Erie -- a satellite of the Western District U.S. Court -- consisted of immigration cases. Legal observers noted that the Border Patrol has had an office there since 2004. Court records suggest that area law enforcement calls Border Patrol agents for "translation services" at traffic stops when the subject doesn't speak much English, and the agents often initiate illegal re-entry cases.

"Sometimes you have things that look like profiling," said Sister Susan Suzanny, a nun who is also an immigration attorney. "They pull them over and say, 'You went through a red light.' " Suddenly, they're detained for an immigration violation.

"It's very difficult to prove profiling," she added. "You've got to prove that there's a pattern, because it's your word against a policeman's."

"I've seen no evidence of [profiling]," said Mr. Hickton. "I say to people, don't profile. Don't assume the person is here legally or illegally. ... And don't assume that people are here voluntarily."

He pointed to his office's prosecution, completed in 2011, of six men from Russia and Ukraine who used scores of Eastern European immigrants as cheap labor in a series of hotel cleaning businesses.

Fleeing the thugs

Many immigrants are fleeing a mixture of poverty and gangsterism, according to Ms. Martinez.

"If they do find jobs [in their countries] they're being harassed by the gangs of the police," she said. "We're filing asylum cases for them," she said, based on the argument that they will be preyed on by gangs if deported. "Most of them are not winning."

Pablo Sibaja-Martinez, a 33-year-old Mexican, was deported twice in 2002. He was arrested for drunken driving in 2009, charged with illegal re-entry, and sentenced to time served after around six weeks in prison.

Assistant Federal Public Defender Linda E.J. Cohn said that after his 2009 deportation, Sibaja-Martinez used his savings to buy a car and worked in Mexico as a cab operator. But he fell victim to a protection racket, and when he resisted giving all of his money to thugs, they beat him with a glass bottle.

So he came back here.

He was arrested in Pittsburgh in June 2012, ultimately pleading guilty to disorderly conduct for a drunken incident in Oakland. He was then charged federally with illegal re-entry.

At his sentencing in November, U.S. District Judge Nora Barry Fischer asked: Why does he keep coming back?

"I only came to this country in my effort to try to move ahead and to work," Sibaja-Martinez told the judge, through an interpreter. "The problem is that it is very difficult for us to move ahead in our country."

"This court is not unsympathetic to your plight," Judge Fischer told Sibaja-Martinez. "It's sad to say that the state of Mexico is such that you don't get adequate protection for yourself when you try to conduct a legal business."

She sentenced him to four months in prison, and suggested that he and others "band together" to "try to change your form of government."

A little sad

President Barack Obama "has been deporting a record number of individuals because he wants to be tough on immigration, so he can give us some relief," said Ms. Martinez, the attorney.

Now, though, the administration faces increasing political pressure to reform a system that costs billions of dollars, hasn't stemmed the tide of migrants and strikes many Hispanics as degrading.

"There needs to be some kind of a worker program," said Ms. Martinez. She said that the federal government gives out seasonal employee visas now, but in numbers that are just "a drop in the bucket" of the number of fruit pickers, dish washers, roofers and other such workers sought by U.S. employers.

Mr. Hickton notes that his job isn't to make policy, but rather to prosecute based on law made in Washington. But he added that the government "can't go all one way or all another -- no immigration, or no limits."

Immigrants, he added, "largely are people who have come to this country because they see it as a shining example of freedom and justice."

In the U.S. Courthouse, Downtown, immigration defendants often seem perplexed as judges painstakingly explain their rights through a translator. Almost invariably, the defendants waive their rights to trials and pre-sentencing reports in order to secure quick trips home.

After his November sentencing, Portillo-Tobar spent five weeks in a federal prison in Ohio. He arrived penniless in his country's capital, San Salvador, and had to borrow money to cover bus fare to his town.

His 1-year-old son was sick, with gastrointestinal symptoms and a rash, and he's had to rely on family for the resources to cover hospital care. When his son gets better, Portillo-Tobar plans to seek work harvesting sugar cane in Guatemala, and when the weather allows he'll try to plant corn again.

His American experience left him "a little sad," he said, by phone from El Salvador. "I went [to the U.S.] to work and to help my family. I had a job, but I had the bad luck to get caught. Oh, well."

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Rich Lord: rlord@post-gazette.com, 412-263-1542 or Twitter @richelord. Lillian Thomas translated.


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