The San Diego Union-Tribune

June 4, 2005

Loophole to America
Migrants exploiting border law for non-Mexicans

By Jerry Kammer

McALLEN, Texas – In the silvery-blue light of dusk, 20 Brazilians glided across the Rio Grande in rubber rafts propelled by Mexican smugglers who leaned forward and breast-stroked through the gentle current.

Once on the U.S. side, the Brazilians scrambled ashore and started looking for the Border Patrol. Their quick and well-rehearsed surrender was part of a growing trend that is demoralizing the Border Patrol and beckoning a rising number of illegal immigrants from countries beyond Mexico.

"We used to chase them; now they're chasing us," Border Patrol Agent Gus Balderas said as he frisked the Brazilians and collected their passports late last month.

What happened next explains the odd reversal.

The group was detained overnight and given a court summons that allowed them to stay in the United States pending an immigration hearing. Then a Border Patrol agent drove them to the McAllen bus station, where they continued their journey into America.

The formal term for the court summons is a "notice to appear." Border Patrol agents have another name for it. They call it a "notice to disappear."

Of the 8,908 notices to appear that the immigration court in nearby Harlingen issued last year to non-Mexicans, 8,767 failed to show up for their hearings, according to statistics compiled by the Justice Department's Executive Office of Immigration Review. That is a no-show rate of 98 percent.

The problem is that U.S. immigration authorities are short on detention space. They can send Mexicans back across the border within hours. But international law prohibits them from sending non-Mexicans to Mexico. Instead, they must arrange travel documents and flights directly to the immigrant's country of origin. The process, which the U.S. government pays for, takes weeks or even months.

The result is an unintended avenue of entry for a rapidly growing class of illegal immigrants from Central and South American who now see the Border Patrol more as a welcome wagon than a barrier.

It is one example of the tears in the "seamless web of enforcement" that immigration authorities vowed to establish along the U.S.-Mexico border during the 1990s, when they spent billions of dollars on strategically placed lights, sensors, roads, fences and agents. It also helps explain why the nation's illegal immigrant population has grown to record levels despite the buildup.

The morning after Agent Balderas encountered the 20 Brazilians, another Border Patrol agent drove them to the McAllen bus station where they headed toward their destinations. They were armed with notices to appear that carried them safely past Border Patrol checkpoints.

Two days later, Graice De Olveira-Silva and three companions from Brazil were working for her relatives' house-cleaning business in Atlanta.

It is a world turned upside down for the Border Patrol, especially here in South Texas. Back in 1985, things were so different that a woman was convicted on charges that she drove illegal immigrants from El Salvador around the Border Patrol and to the same McAllen bus station.

Now smugglers operate with impunity. After their loads of immigrants splash ashore, the smugglers slip back across the river.

As word of this border loophole filters back to Central and South America, the volume of people coming to exploit it is likely to grow, according to Border Patrol agents.

Apprehension statistics bolster their assertion. Arrests of non-Mexicans along the U.S.-Mexico border totaled 14,935 in 1995, 28,598 in 2000 and 65,814 last year. In the first eight months of this federal fiscal year, which began Oct. 1, more than 85,000 have been apprehended. Nearly all are no-shows at their court hearings, but comprehensive federal figures are not available.

Statistics aren't the only evidence. Interviews with immigrants caught sneaking across the border recently suggest the problem will only increase as Central and South American migrants learn of the unintended opportunity.

"We thought they were going to deport us," said Ceidy Milady Canales Alvarez, a 22-year-old Honduran recently arrested by the Border Patrol in the McAllen sector. She said a cousin in Atlanta had encouraged her to make the trip. So she quit her $50-a-week job sewing shirts and pants that are exported to the United States and crossed the border.

A Guatemalan arrested late last month in the McAllen sector who gave his name as Hugo said that when word gets back home, "Anyone who has a little money will be coming."

In his office on Capitol Hill, Rep. Silvestre Reyes, D-Texas, fumed at the news from South Texas and called for emergency measures similar to those he adopted in 1989, when he was the Border Patrol's agent in charge of the McAllen sector.

"We need somebody with a stiff spine who can make a decision and say, 'We're going to build a temporary detention facility,' " Reyes said. "We need to send a message that anybody who crosses that border illegally is going to be detained. That message gets back (to the sending countries) instantaneously."

Sixteen years ago, Reyes faced a rush of immigrants fleeing the violence of Central American civil wars. Most of their asylum claims were rejected, but only after the migrants had moved far away, armed with notices to appear in court.

"They were coming across and flagging my men down," Reyes said. "It was destroying their morale."

He got permission from the commissioner of the old Immigration and Naturalization Service to establish a temporary tent city with several thousand beds for detained immigrants. That measure, coupled with an increase in the number of agents at key border crossing points, shut off the flow, Reyes said.

But the current director of immigration detention and removal operations in South Texas wants nothing to do with such emergency measures.

"Anytime you have temporary facilities, you have a degradation of services, you have anxieties," said Marc Moore, who administers 1,700 detention spaces.

Reyes reacted angrily to Moore's remarks. While a temporary facility would be expensive and might not be as tidy as Moore would like, Reyes said, "All these things are worth it given the alternative of the permiso syndrome."

Central and South Americans call the notice to appear their "permiso," which in Spanish means permission slip.

About 19,450 immigration detention beds are available nationwide under funding levels established by Congress. Although that is twice the number of beds Congress funded a decade ago, it is far less than the number needed.

With the shortage of beds, immigration authorities must choose between using a bed to hold a migrant with a serious criminal record in the United States or one who has come across the border without a criminal record. It's an easy choice. They release the immigrant without the criminal record.

Many Border Patrol agents express frustration over the dilemma. They also worry that the high volume of non-Mexicans is taking up much of their time and might be making it easier for potential terrorists to slip past. Some said they spend much of their 10-hour shift processing non-Mexicans.

One night last month when six agents were processing non-Mexicans at the Border Patrol's Rio Grande City station, for example, only seven agents were patrolling the 84 miles of river under their watch.

Agent Isidro Noyola, who that night detained illegal immigrants from Brazil and Honduras, said, "Our fear is that when we are processing and not patrolling the border, somebody else is going to be coming through."

Another agent expressed astonishment at the cheekiness of some of the migrants.

"They come up to you and say, 'I want my permiso,' " Agent Larry Alvarez said. "They want us to hurry up and get them out of here."

Others with the Border Patrol complained that they are being reduced to little more than gun-toting travel agents in uniforms.

In particular, the growth in the number of Brazilians taking advantage of the loophole has been spectacular, largely because of that country's poor economic conditions. In 1995, the Border Patrol detained 260 Brazilians along the Mexican border. Five years later, the number had grown to 1,241. But over the past eight months, it has soared to some 22,000.

The number of Brazilians floating north over the Rio Grande might continue to increase because of a prime-time soap opera in Brazil whose central character is smuggled across the Mexican border and finds work as an exotic dancer in Miami.

Since its first episode aired in March, "America" has become Brazil's most popular "telenovela." In a country of 178 million, it has an audience of some 60 million.

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