Guidelines issued by U.S. attorneys in Texas showed that most illegal immigrants crossing into the state had to be arrested at least six times before federal authorities would prosecute them, according to an internal Justice Department memo.
The disclosure provides a rare view of how federal authorities attempt to curb illegal immigration. The memo was released this week in response to a congressional investigation of the dismissals of eight U.S. attorneys.
The Border Patrol makes more than 1 million arrests a year on the U.S.-Mexico border. T.J. Bonner, head of a union representing Border Patrol agents, said it's unrealistic to prosecute all violators.
• SPEAKOUT: Do you think the prosecutor's guidelines were too lenient, or a wise decision in light of limited jail space and court availability?
"Let's be honest, there isn't enough jail space to incarcerate everyone who crosses that border," said Bonner, president of the National Border Patrol Council. "If everyone demanded hearing in front of an immigration judge, it would bring our system to a grinding halt in a matter of days."
It is unclear when the memo was written, but the Justice Department reviewed the guidelines sometime after a February 2005 performance review of Carol Lam, the top federal prosecutor in San Diego from 2002 until she was fired last month. Some Republican lawmakers had complained that Lam failed to aggressively prosecute immigration violations.
Justice Department spokesman Brian Roehrkasse said Thursday that immigration prosecutions are a high priority and that the government sent 30 additional attorneys to the border region in the second half of 2006. He said U.S. attorneys set guidelines that, in part, reflect local crime issues and staffing.
"Increasing the number of prosecutors will permit districts to adjust their guidelines and take in more cases," he said. "For law enforcement reasons, the department cannot discuss what the present prosecutorial guidelines are concerning the border."
The memo was written in response to Justice Department inquiries about immigration prosecutions by the five U.S. attorney offices that cover the 2,000-mile border — San Diego, Phoenix, San Antonio, Houston and Albuquerque, N.M.
Guidelines vary by office, but migrants with no criminal records who have not been deported by an immigration judge will almost certainly be turned back to Mexico "numerous times" before getting prosecuted, according to another Justice Department memo dated Nov. 22, 2005. Those "voluntary returns" are booked on administrative, not criminal, violations.
Parts of the other memo are blacked out, so it's unclear whether the document refers to U.S. attorneys in Houston or San Antonio.
The memo says one Texas district prosecutes migrants if the Border Patrol catches them at least six to eight times. The other district prosecutes after someone is caught at least seven times.
In late 2005, the government created a 200-mile zone near Del Rio, Texas, in which every adult arrested for illegal immigration would be prosecuted and jailed before being deported.
The San Diego office, which covers an area stretching from the Pacific Ocean to the Arizona state line, does not prosecute "purely economic migrants" as a general rule, according to the memo.
The Arizona district, the nation's busiest corridor for illegal crossings, "almost certainly" declines to prosecute on a first or second offense, the memo says. The New Mexico district makes decisions based on criminal records in the U.S.
There are many exceptions to the rule, including violators with criminal records.
Representatives of all five U.S. attorney offices declined to comment.
Republican Rep. Tom Tancredo of Colorado, who advocates a crackdown on illegal immigration, said the Texas guidelines underscore a lax enforcement attitude. He said the federal government should contract for more jail space, perhaps with local governments.
"If you made it a priority of the department, you would see a reduction," Tancredo said.
Arizona's Paul Charlton and New Mexico's David Iglesias were also among the eight U.S. attorneys abruptly fired. Justice Department officials have said they were concerned about the prosecutors' approach to immigration cases.