llegal immigrants allowed at least five strikes

Border-crossings guidelines revealed amid probe into U.S. attorney firings

Documents released in the controversy about eight fired U.S. attorneys show that federal prosecutors in Texas generally have declined to bring criminal charges against illegal immigrants caught crossing the border — until at least their sixth arrest.

A heavily redacted Department of Justice memo from late 2005 disclosed the prosecution guidelines for immigration offenses, numbers the federal government tries to keep classified. DOJ officials would not say Thursday whether it has adjusted the number since the memo was written, citing "law enforcement reasons."

The prosecution guidelines have been a source of frustration for years among the ranks of U.S. Border Patrol agents, said T.J. Bonner, president of the National Border Patrol Council. Smugglers can figure out the criteria by trial and error, he said, and can exploit it to avoid prosecution.

"It's devastating on morale," Bonner said. "Our agents are risking their lives out there, and then they're told, 'Sorry, that doesn't meet the criteria.' "

The memo was written in response to DOJ inquiries at five U.S. attorney offices, including Houston, about immigration prosecutions. The others — San Antonio, San Diego, Phoenix and Albuquerque — cover the 2,000-mile border.

The U.S. Attorney's Office in Houston declined to comment.

In a statement, DOJ spokesman Brian Roehrkasse said the agency sent 30 prosecutors to districts along the Southwest border in 2006. The added manpower "will permit districts to adjust their guidelines and take in more cases," according to the statement.

The controversy about the guidelines dates back years, but much of the recent unrest centers on a push by some members of Congress for more aggressive immigration prosecutions, particularly involving smuggling cases.

As part of the inquiry into the firing of the U.S. attorneys, the House Judiciary Committee has posted on its Web site thousands of pages of e-mail, memos, reports and testimony.

The documents offer a glimpse into the overburdened federal court and detention systems, which suffer from a "lack of resources and bed space to detain and prosecute every illegal entry violator," the DOJ memo states.

With Border Patrol agents making about 1 million arrests annually, the DOJ is forced to prioritize the most serious offense and repeated offenders, the memo states. The guidelines vary from district to district, depending on issues such as staffing and the local crime level.

In 2005, the Southern District of Texas was the busiest in the country, and sentenced 6,414 defendants, including 4,313 for immigration-related offenses, according to data from the Sentencing Commission included in another memo. The West District of Texas was second, with 5,839 defendants sentenced in 2005, records show.

In late 2005, the Border Patrol cracked down on crossings through a 200-mile zone near Del Rio and pledged to prosecute and jail each illegal immigrant arrested there before being deported, a sharp deviation from normal practice.