Ninth Circuit ruling could wipe out hundreds of family-separations convictions

(July 25) WASHINGTON — A federal appeals court in California substantially narrowed the government’s ability to charge people for crossing the border illegally — a case that could invalidate hundreds of prosecutions that were at the core of the Trump administration’s separations of migrant families last year.

The ruling comes as the federal law in the case, which makes it a crime to cross the border without authorization, is under scrutiny in the Democratic presidential campaign, with several candidates arguing it should be done away with altogether.

Wednesday’s ruling by a three-judge panel of the Ninth U.S. Circuit Court of Appeals in Pasadena could bolster the Democrats’ argument that the Trump administration is misusing the law to criminalize well-intentioned immigrants seeking asylum. It also adds further questions to the administration’s widely criticized prosecutions that resulted in thousands of family separations last year.

The Justice Department did not respond to a request for comment Thursday.

The 2-1 decision overturning a lower court ruling concerned the provision of U.S. law that makes improper entry to the country a misdemeanor, punishable by up to six months in jail. The law has three parts: entering the U.S. at an improper time or place, eluding immigration officers or entering the U.S. using false pretenses.

In an opinion written by Judge Jay Bybee, a George W. Bush appointee, the court decided that the second part — eluding officers — could apply only to immigrants who are at a valid border crossing but who try to enter by evading detection, not immigrants picked up on the U.S. side having crossed somewhere else. That was the case with Oracio Corrales-Vazquez, a Mexican national officers found hiding in bushes miles from the border, whose conviction the court overturned.

Because part one of the statute already covers immigrants who surreptitiously enter where there is no legal crossing, the court held, the second part must exist to cover some separate activity. Otherwise, the court said, it would be redundant.

The ruling is a second strike to the statute. The Ninth Circuit has already held that part one of the illegal-entry crime — entering at an improper time or place — does not apply to people who cross the border where officials can see them, in person or over cameras, and then seek out an officer and claim asylum. Those migrants are clearly not trying to avoid detection, court rulings have held.

It has become standard practice for federal authorities in Southern California to charge border crossers only using part two to avoid the defense to part one, said Kara Hartzler, an attorney with the nonprofit San Diego Federal Defenders who brought the case. Now, federal attorneys will not have part two as a back door to charge asylum seekers with illegal entry.

The court ruling means thousands of similar convictions could be thrown out, including hundreds that were the basis for family separations the Trump administration carried out last summer in the name of prosecuting a crime.

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Tal Kopan