Page 2 of 2
Since Esquivel-Hernandez works in residential construction, he needs to have a vehicle, says Perez. But given his status, he’s not eligible to receive a driver’s license in Pennsylvania. (Twelve states in the U.S., including nearby Maryland and Delaware, allow undocumented immigrants to receive some form of driver’s license.)
That lack of a license may be the impetus of Esquivel-Hernandez’s ordeal. He was cited twice in the last four months for driving without a valid license, once by Castle Shannon Police and once by Mount Lebanon Police. (He does have a Mexican driver’s license.)
Castle Shannon police towed his minivan on April 30, two days before he was detained by ICE. Castle Shannon Police Chief Ken Truver says there was “nothing in the police report that reflects we had anything to do with an ICE referral.” He adds that if his officers are not given reason, they don’t usually ask about residency status.
Mount Lebanon police cited Esquivel-Hernandez on March 26 for driving without a valid license and without insurance. He paid his fine on April 21, and according to his U.S. District Court case, he was identified as undocumented on April 25. Mount Lebanon police have not returned multiple calls requesting comment about its communication policy with ICE.
Ruiz says she has reason to believe that Mount Lebanon police are the ones who turned in Esquivel-Hernandez. Her nephew, Isaac Ruiz, was also pulled over by Mount Lebanon police in January 2015 — his only charge listed in the state magistrate — and he too was picked up by ICE this May. (Ruiz is in York awaiting the disposition of his case.)
Since 2014, Pittsburgh Police have had an unwritten policy not to initiate communication with ICE about undocumented immigrants. The department will comply if ICE initiates contact. However, there is no indication that other smaller police forces in Allegheny County have adopted similar policies.
Nationwide, there appears to be an increase in cases similar to Esquivel-Hernandez’s. Immigration-related criminal charges now make up the largest portion of cases in U.S. District Courts. According to a United States Sentencing Commission report, in 2013 (the last year for which data was available), illegal re-entry cases made up 83 percent of immigration cases and 26 percent of district-court cases.
And while most of those cases take place in districts closer to the border, Carlos Garcia, of the Puente Human Rights Movement, a Phoenix-based migrant-justice group, says even districts far from the border are contributing to these figures.
“The things that are happening that are normal at the border, we are seeing these things happening across the country,” he says.
Because of the large volume of cases at the border, it’s normal to have 60 to 100 cases prosecuted in one day, according to Garcia. But Garcia says that district attorneys across the country have also been given more power to treat all immigration cases, regardless of how close they are to the border, similarly to high-volume border-adjacent districts.
Many of the illegal re-entry cases over the last year in Western Pennsylvania were completed within a few months, and Esquivel-Hernandez’s was on that schedule. Early last week, Esquivel-Hernandez’s public defender filed a motion indicating that his client would be pleading guilty to the illegal re-entry charge. (He later rescinded that plea.) Since June 2015, 16 undocumented immigrants have appeared in federal courts in Western Pennsylvania, whose sole charge was illegal re-entry.
Of those, one involved a Jamaican man with a serious criminal record, while the rest were almost all immigrants from Mexico or Central America with little or no criminal record. Of the 16, only two, including Esquivel-Hernandez, are seeking a trial. Nationwide, immigration-related federal cases go to trial less than 1 percent of the time.
Erika Aldiron, of Philadelphia-based Latino immigrant rights group Juntos, says that not only are the odds against defendants in illegal re-entry cases, but the way they are treated during the detention process encourages them to take pleas. She says Esquivel-Hernandez’s story is not uncommon, and most immigrants are dragged from facility to facility, struggle to communicate with allies, and eventually just want to the process to end.
“He is not given a fair shot to defend his case, and it is a normal thing,” says Aldiron of Esquivel-Martin.
And illegal re-entry cases are difficulty to defend because they’re straightforward: Any deported immigrants who return illegally and are caught without a VISA can be charged. The cases have been called the “low-hanging fruit of the federal legal system” by The New York Times. According to a 2013 report by the federal Defender Services Office: “These cases are clogging the criminal dockets, and usually involve a simple set of facts, very few — if any — defenses … and disproportionately long sentences.” In 1998, an undocumented immigrant in California, Aurelio Garcia-Martinez, appealed his illegal re-entry conviction in U.S. District Courts, alleging that the process was “fundamentally unfair” and violated his Fifth Amendment rights, but he lost his appeal.
When contacted, Hickton’s office refused to answer questions about why he is choosing to prosecute these cases. In a 2013 Pittsburgh Post-Gazette article, however, Hickton said, “If you’re not going to bring some illegal re-entry cases, then the people who are playing by the rules [by going through the legal immigration process] are being prejudiced by the people who have cut the line. We’re standing for the proposition that there is a process for legal entry.”
Perez believes that Esquivel-Hernandez’s case is part of larger problems with the Obama administration’s immigration enforcement. He says the administration has vowed to prosecute immigrants who are threats to public safety, but Esquivel-Hernandez is “obviously not in that category.”
And while his criminal case is not a deportation hearing, almost everything rides on it. If convicted, Esquivel-Hernandez would be considered a felon and almost certainly would be deported. Also, because his son was born in the U.S., Esquivel-Hernandez could be eligible for Deferred Action for Parents of Americans. DAPA is now before the U.S. Supreme Court; if the rule is upheld, and if Esquivel-Hernandez avoids felony conviction, eventually he could remain in the country without fearing deportation.
But his supporters hope the case never gets that far. Perez says that in these proceedings, Esquivel-Hernandez is being unfairly labeled. The indictment, for example, says that Esquivel-Hernandez must be detained while awaiting trial because he is a “flight risk.” Perez says that may be one of the most absurd statements he’s ever heard about a man who is an activist in his community and fled Mexico to escape the gang violence there.
“He is not going anywhere. He is not a flight risk,” says Perez. “This is a guy that tried to cross the border four times to try to be with his family. There is nowhere else he would be.”