The criminal prosecution of Oregon labor organizer Francisco Aguirre for returning to the U.S. after deportation is an example of increased initiative by the Department of Justice in criminalizing immigrants and in the process discouraging advocacy and organizing. Sign the petition to stop Francisco’s deportation here.

Tania Unzueta, Not1More

In September of last year I got a call from a labor organizer in Portland, Oregon by the name of Francisco Aguirre, telling me that immigration agents had just shown up at his house, but that he had not let them in because they didn’t have a warrant and he knew his rights.

Fearing continued targeting by immigration enforcement, he took sanctuary for two months at a local church, while hundreds of community members, labor organizers, faith leaders, and elected officials around the country urged Immigration and Customs Enforcement (ICE) to stop trying to separate him and his family.

But during his stay in sanctuary, ICE switched its pursuit from civil immigration to a criminal case that enlisted the participation of the U.S. Attorney. In an example of a recent increase in prosecutions for re-entry from the Department of Justice (DOJ), U.S. Marshals served him with an indictment for a felony charge relating to Francisco’s return to the U.S. after being deported some 15 years ago, for which he could spend years in prison if found guilty and then eventually deported.

While Francisco had been in sanctuary, instead of considering the use of prosecutorial discretion to close his case, ICE had been working to get the Department of Justice (DOJ) to file criminal charges against a labor rights organizer.

I remember immediately thinking that Francisco had told those first immigration agents that showed up at his house that they should come back with a warrant – and in a way they had. While Francisco had been in sanctuary, instead of considering the use of prosecutorial discretion to close his case, ICE had been working to get the Department of Justice (DOJ) to file criminal charges against a labor rights organizer.

As Francisco himself explained, “I have lived in this country for almost 20 years. I have helped build our local organizations and the workers’ center. I have helped my fellow immigrants. I have children who I am raising and providing for. But none of that counts.”

The DOJ has Increased Re-Entry Prosecutions

Criminal charges in immigration proceedings are not new. The federal court in Tucson, Operation Streamline, tries groups of up to 70 immigrants per hour has been criminalizing en masse people caught at the border since 2005, for example. But according to TRAC data over the last two years “the Obama Administration continues to stand out as having drastically increased criminal prosecution for illegal entry and re-entry.”

“the Obama Administration continues to stand out as having drastically increased criminal prosecution for illegal entry and re-entry.”

According to the report, under President Obama the DOJ has convicted more than twice the number of immigrants for immigration-related offenses than under former President Bush during his eight years.

As ICE is being instructed to pursue those with criminal convictions, intervention from the DOJ in charging immigrants with felony offenses for immigration violations is welcomed, to say the least, by ICE officials. During a July 2015 Senate Judiciary Committee ICE Director Sarah Saldaña explained that ICE is increasingly referring cases to the DOJ with the only barrier to exponential rates of prosecution being that “Unfortunately the decision of whether to prosecute isn’t on us. It’s up to the US attorney’s office. They have their own priorities and I can’t quibble with that.”

Criminal Prosecution as Intimidation

The DOJ’s increased collaboration with ICE isn’t simply an overextension of the justice system into ICE’s deportation pursuits. It has potential consequences that could affect the rights and ability of immigrants in deportation proceedings to advocate on their own behalf, especially as ICE continues to be an agency with little oversight and a track record of abuse and distrust.

Just last week I got a call from Adelina Nicholls, executive director of the Georgia Latino Alliance for Human Rights (GLHAR) who told me that she had been working with a gay man, Ermes Cortes, who was detained in a Georgia detention center, and who was looking for support to stop his deportation due to life-threatening medical issues. They were about to begin a campaign to help stop his deportation, when he called to tell them that one of the immigration guards said that if he continued to fight his deportation he could spend three or four years in prison. “Is this a real charge?” she asked me.

“It shouldn’t be,” was my response. But I also told her about ICE’s latest recruitment of the DOJ and a comment by David Rivera, the New Orleans field director, on a different case regarding an individual charged with “hindering” their own deportation, Rivera said, “Immigration and Customs Enforcement will continue to dedicate its resources to prosecuting individuals who hamper their removal. This [case] illustrates our close cooperation with the U.S. Attorney’s Office for the successful prosecution of egregious immigration law violators who pose a threat to public safety and border security.” The charge is up to four years in prison.

“Immigration and Customs Enforcement will continue to dedicate its resources to prosecuting individuals who hamper their removal. This [case] illustrates our close cooperation with the U.S. Attorney’s Office for the successful prosecution of egregious immigration law violators who pose a threat to public safety and border security.”

There have only been 9 prosecutions of immigrants for “hindering his/her own removal from the U.S.” investigated by DHS this year, down from 28 last fiscal year, according once again to TRAC. There are no numbers available on how many times this charge has been used to intimidate immigrants to sign their own deportation.

Retaliation Against Seeking Sanctuary

The aggressive prosecution by the DOJ in the case of Francisco begs the question of why he is being pursued, especially given his work in the labor movement, his family, and the amount of national support the he has – including from the Mayor of Portland and over 150 national and civil and immigrant rights organizations.

Even when Francisco went in front of the federal court for the re-entry charges, he was released by the judge to wait for court with his family, challenging ICE’s framing of his case and affirming that he is not a threat to the public.

Many advocates involved in Francisco’s case believe that the felony charge was sought by ICE against Francisco as retaliation for seeking sanctuary, a message to the immigrant community that fighting back against deportations only results in harsher penalties.

By collaborating with ICE in pursuing the case of Francisco, the DOJ becomes complicit to the use of criminal charges as punishment for challenging immigration enforcement practices.

By collaborating with ICE in pursuing the case of Francisco, the DOJ becomes complicit to the use of criminal charges as punishment for challenging immigration enforcement practices.

This Thursday Francisco, his family, and supporters, will be delivering a letter from the 150 immigrant rights organizations to the U.S. Marshall’s office, urging them to use prosecutorial discretion to stop pursuing his case.

ICE could have used prosecutorial discretion to close Francisco’s case when it had a chance. Instead, they chose to urge the U.S. Attorney to indict him on federal charges for the administrative violation of illegal re-entry, under at the very least, questionable motives, and at the most, actions that violate the first amendment and threaten immigrant’s ability to organize.

It is clear that the DOJ has discretion on what cases to pursue. ICE Director Saldaña at least has confirmed it on the Congressional record. In Francisco’s case, as in others, it should be the responsibility of the Department of Justice to assure that they are not adding to the inhumane policies that have yet to be corrected at ICE or being used to intimidate immigrants and discourage their organizing.

Sign the petition to support Francisco here.

Tania Unzueta is the Deportation Defense national organizer for the #Not1More campaign.