BY LINDA BENTLEY | DECEMBER 24, 2013
Federal judge issues scathing order highlighting DHS’s criminal activity
‘Despite this setback, the goal of the conspiracy was successfully completed thanks to the actions of the United States government’
BROWNSVILLE, Texas – On Friday, Dec. 13, 2013, U.S. District Court Judge Andrew S. Hanon issued a scathing order admonishing the Department of Homeland Security (DHS) for assisting a criminal conspiracy in achieving its illegal goals instead of enforcing our border security laws.
The order was issued one day after he sentenced Mirtha Nava-Martinez to 10 months in prison for transporting an illegal alien child within the United States for the purpose of commercial advantage and private financial gain.
On May 18, Nava-Martinez, a resident alien and admitted human trafficker, was arrested at the Brownsville, Texas/Matamoros, Mexico Bridge checkpoint while trying to smuggle a child, Y.P.S., into the United States using a birth certificate that belonged to one of her daughters.
The conspiracy was initiated when Patricia Elizabeth Salmeron Santos, who is residing illegally in the United States, solicited human traffickers to smuggle her daughter “Y.P.S.” from El Salvador to Virginia.
Salmeron Santos, who applied for a tourist visa in 2000 but was turned down, subsequently entered the United States illegally and currently resides in Virginia.
Salmeron Santos admitted to hiring alien smugglers for $8,500 to transport her child from El Salvador to Virginia and paid $6,000 in advance.
That criminal conspiracy was temporarily interrupted when Nava-Martinez was arrested.
However, Hanen pointed out, “Despite this setback, the goal of the conspiracy was successfully completed thanks to the actions of the United States government,” and said his court was quite concerned with DHS’ policy “of completing the criminal mission of individuals who are violating the border security of the United States.”
Customs and Border Protection (CBP) agents stopped Nava-Martinez at the border inspection point, where she was arrested, the child was taken into custody and DHS officials were notified Salmeron Santos instigated the illegal conduct.
Hanen stated, “Yet, instead of arresting Salmeron Santos for instigating the conspiracy to violate our border security laws, the DHS delivered the child to her – thus successfully completing the mission of the criminal conspiracy. It did not arrest her. It did not prosecute her. It did not even initiate deportation proceedings for her. This DHS policy is a dangerous course of action.”
Because the government’s actions were not performed in connection with a sting operation or controlled delivery situation, Hanen stated DHS was actually assisting the criminal conspiracy in achieving its illegal goals instead of enforcing our border security laws.
In fact, he said DHS’ actions were in furtherance of Y.P.S.’s illegal presence in the United States by completing the mission of the conspiracy initiated by Salmeron Santos.
Hanen said, “In summary, instead of enforcing the laws of the United States, the government took direct steps to help the individuals who violated it. A private citizen would and should be prosecuted for this conduct.”
This was the fourth such case with the same factual situation that had come before Hanen in the past month.
He said, “In all of the cases, human traffickers who smuggled minor children were apprehended short of delivering the children to their ultimate destination. In all cases, a parent, if not both parents, of the children was in the country illegally. That parent initiated the conspiracy to smuggle the minors into the country illegally. He or she funded the conspiracy.”
And, in each case, DHS completed the conspiracy by delivering the minor children to the custody of the parent illegally living in the United States.
When Hanen inquired about DHS’ policy in this particular case, the government provided the court with a copy of the settlement agreement and a portion of the Homeland Security Act from the 1977 case Flores v. Reno.
Hanen stated, “No other explanation was offered – no doubt because there is no explanation. The DHS has simply chosen not to enforce the United States’ border security laws.”
Noting the government entered into the Flores settlement regarding its practices, policies and regulations with regard to the treatment and detention of unaccompanied minors, Hanen said because that order was apparently sealed, he would not quote in detail any specific language.
He stated that settlement requires the government to release a minor to his or her parent, guardian, or relative, among others, in an order of preference established in the documents.
However, Hanen said, there was nothing in the Flores settlement that prohibited DHS from arresting Salmeron Santos, who initiated the conspiracy, or from at least initiating deportation proceedings.
Hanen pointed out the terms of the Flores agreement terminated five years after the date of the final court approval and said the government provided no explanation as to why the settlement agreement is still even effective.
He said the government implied in its response that the Homeland Security Act of 2002 somehow authorizes its participation in this conspiracy and stated, “Again, there is nothing in this Act that directs and authorizes the DHS to turn a blind eye to criminal conduct, and certainly nothing that compels it to participate in and complete the mission of a criminal conspiracy or to encourage parents to put their minor children in perilous situations subject to the whims of evil individuals. These actions are both dangerous and unconscionable.”
Hanen also noted in each of the four cases the government incurred significant expense, after apprehending some of the human traffickers, to help complete the conspiracy by transporting the children across the country to unite them with a parent (or parents) who was in the country illegally.
Because DHS neither prosecutes nor deports the wrongdoer, Hanen said they were rewarding criminal conduct, and, more seriously, encouraging parents to seriously jeopardize the safety of their children.
Although Y.P.S. was transported in a car, Hanen stated others are made to swim across the Rio Grande or other bodies of water in remote areas.
Hanen said it would be more efficient for the government to arrest the individuals who are not only in the country illegally, but while in the country illegally are also fostering illegal conspiracies.
He said it would also be much cheaper to apprehend those coconspirators and reunite them at the children’s location.
As he waited for the judgment to be prepared in Nava-Marinez’s case before releasing this opinion, Hanen stated “two illegal aliens drowned, two more are missing and a three-year-old El Salvadorean toddler was found abandoned by smugglers – each event occurring just outside of Brownsville.”
While Hanen emphasized he takes no position on the subject of immigration reform and his opinion should not be taken as a commentary on that issue, he said, “Nevertheless, the failure by DHS to enforce current United States law concerns this court for three unassailable reasons.
“First, and most importantly, these illegal activities help fund the illegal drug cartels which are a very real danger for both citizens of this country and Mexico.”
He said the court need not list the dangers involved for minors and even adults being smuggled into the United States, noting his court has seen instances over the past year where aliens being smuggled were assaulted, raped, kidnapped and/or killed.
While representatives of the government and the defense have told the court time and time again that cartels control the entire smuggling process, Hanen stated, “These entities are not known for their concern for human life. They do not hire bonded childcare providers to smuggle children. By fostering an atmosphere whereby illegal aliens are encouraged to pay human smugglers for further services, the government is not only allowing them to fund the illegal and evil activities of these cartels, but is also inspiring them to do so.”
He called citizens on both sides of the border the “overall losers” as they endure the consequences of DHS’ policy and suffer from the nefarious activities of the cartels.
Hanen stated the DHS policy undermines the deterrent effect the laws may have and inspires others to commit further violations.
He said, “Those who hear that they should not fear prosecution or deportation will not hesitate, and obviously have not hesitated, to act likewise. They perceive they have nothing to lose but some time and effort. If the human traffickers are successful, so much the better – mission accomplished. Even if their co-conspirators are unsuccessful, the government will finish the job of human traffickers – mission still accomplished. It’s no wonder these cases are proliferating.”
According to Hanen, the policy only serves to encourage individuals to turn their children over to complete strangers about whom the only thing is really known is they are criminals involved in a criminal conspiracy.
Stating the court is not unsympathetic to any individual or entity taking action in the best interests of a minor child, nor is its goal to divide or separate family members, Hanen stated, “But the decision to separate Salmeron Santos from Y.P.S. was made years ago, and it was made by Salmeron Santos. She purposefully chose this course of action. Her decision to smuggle the child across the border, even if motivated by the best of motives, is not an excuse for the United States government to further a criminal conspiracy, and by doing so, encourage others to break the law and endanger additional children.”
Hanen said DHS’s policy is as logical as confiscating illegal drugs or weapons seized from smugglers and delivering them to the criminals who initially solicited their illegal importation/exportation.
From a legal standpoint, Hanen said this situation is no different.
And, while Hanen stated he is not opposed to the concept of prosecutorial discretion exercised by law enforcement officers if the discretion is exercised with a sense of justice and common sense, he said he is not aware of any accepted legal principal that allows the government to not simply decline prosecution, but allows it to actually complete the intended criminal mission.
In conclusion, Hanen wrote, “The DHS should enforce the laws of the United States – not break them.”