III. Chapter Three: Resendezs Criminal History and Apprehensions by the Border Patrol Before 1999
A. Resendezs Criminal History
According to his birth certificate, Resendez was born on August 1, 1959 in Izucar de Matamoros, Puebla, Mexico. His wife reported that Resendez was raised by his mother until he was seven. From age 7 until 12, Resendez lived with his grandparents. He then moved to Acapulco on his own. At age 14 he traveled to Florida illegally, where he lived until he was 17 years old.
According to U.S. law enforcement and INS records, Resendez was first removed from the United States in 1976 when he was 17. Resendez has since entered the United States illegally many times, been arrested and convicted of numerous crimes, served his sentences and been returned to Mexico, only to travel again to the United States and resume his criminal activities. The following chart provides a summary of Resendezs criminal record in the United States and his known contacts with the INS before January 1998. We obtained the records of his criminal arrests and convictions from various sources, including FBI, INS, and state and local records. We obtained information about his INS apprehensions and deportations to Mexico from various INS records, such as his A-file and INS databases.19
As we describe below, it is very likely that Resendez was apprehended many more times attempting to enter the United States illegally and then immediately returned to Mexico voluntarily. Because paper records of such apprehensions and voluntary returns could be at any Border Patrol station in files under any name given by Resendez, the INS has no realistic way of finding these records. Also, paper records of alien apprehensions often are destroyed after two years.
Resendezs Criminal History and
Encounters with the INS
|Date||Event||Alias Resendez Used|
|8/31/76||Excluded from San Antonio, Texas|
|9/11/76||Arrested by security guards for trespass on Chrysler property in Sterling Heights, Michigan; turned over to INS and granted voluntary departure||Jose Angel Reyes-Resendiz|
|10/2/76||Apprehended for entry without inspection by the Border Patrol in McAllen, Texas; voluntarily returned to Mexico on the same date||Rafael Resendez-Ramirez|
|9/29/77||Convicted and incarcerated for destroying private property and leaving the scene of a crime in Corinth, Mississippi; on 10/13/77 voluntarily returned to Mexico||Angel Cano Reyes-Recendez|
|1979||Charged with grand theft auto in Tampa, Florida; charges were subsequently dismissed in lieu of more serious charges in Miami, Florida (see next box)||Unknown|
|6/6/79||Broke into a home in Miami, Florida, ransacked it and beat the 88-year-old owner until he was semi-conscious, then stole the victims car||Jose Angel Reyes|
|7/13/79||Arrested and charged with burglary of a dwelling in Clark County, Kentucky; subsequently extradited to Miami, Florida, to face the charges for the crime described above|
|4/18/80||Convicted of burglary, aggravated battery, and grand theft auto in Miami; on 5/23/80 sentenced to 20 years imprisonment||Jose Angel Reyes|
|8/27/85||Paroled from prison; detained by the INS; on 9/13/85 deported from Brownsville, Texas, to Mexico|
|12/10/85||Convicted of making a false representation of U.S. citizenship (no location listed); sentenced to 18 months imprisonment in federal prison; unknown if he was deported after serving part of this sentence||Jose Reyes Resendez|
|6/1/86||Apprehended at Laredo, Texas, port of entry attempting to enter the United States; presented fraudulent U.S. voter registration card and birth certificate; on 7/17/86 pled guilty to making a false representation of U.S. citizenship and subsequently sentenced to 18 months imprisonment||Jose Angel Reyes-Resendez|
|8/27/87||Released to INS custody; on 10/2/87 deported from Brownsville, Texas, to Mexico|
|1/19/88||Charged in New Orleans, Louisiana, with defrauding an innkeeper and possession of a concealed weapon; charges dismissed for lack of evidence||Jose Angel|
|11/30/88||Arrested in St. Louis, Missouri, for fraudulently applying for social
security cards with false documents; on 3/29/89 convicted in U.S. District Court in
Missouri for, among other charges, making false statements to federal officials, falsely
representing to be a U.S. citizen, being a convicted felon in possession of a firearm, and
reentry after deportation; sentenced to 30 months imprisonment
Investigation also revealed that Resendez had used these additional aliases: Angel Leoncio Reyes-Resendez, Jose Reyes-Resendiz, Angel Reyes, Jose Konig Mengele; Daniel Arnold, Daniel Arnold Edwardo, Daniel Arnold Eduardo III, Angel Joseph Reyes, and Rafael Resendez-Ramirez
|Jose Angel Reyes-Resendez;|
|5/13/91||Deported from El Paso, Texas, to Mexico after his release from prison|
|3/3/92||Arrested for burglary of a residence in Las Cruces, New Mexico; on 8/10/92 pled guilty to burglary; sentenced to 3 years imprisonment, with 18 months suspended||Antonio Martinez|
|4/30/93||Released from New Mexico prison to an INS detainer; unknown if the INS deported him to Mexico|
|6/9/93||Arrested in Carson County, Texas, for driving a vehicle that had been stolen two days earlier in Missouri; after the Missouri authorities declined to seek his return to face auto theft charges, pled guilty on 7/8/93 to misdemeanor offense in Carson County of evading arrest; sentenced to time served; unknown if the INS deported him to Mexico||Carlos Cluthier Rodriguez|
|12/7/94||Arrested by Albuquerque, New Mexico, police for driving a vehicle that was stolen in Arizona the day before; released on bond||Aerrjel Martinez|
|5/28/95||Indicted in Albuquerque for receiving a stolen vehicle and resisting arrest; a bench warrant issued for his arrest and placed in NCIC||Aerrjel Martinez|
|8/18/95||Arrested by railroad police in San Bernardino, California, for trespassing on railroad property; found with a stolen handgun in his bag; charged with trespass, carrying a loaded firearm, and receiving stolen property||Pedro Argel Jaramillo|
|8/25/95||Convicted of all charges in San Bernardino; sentenced to 30 days imprisonment|
|9/6/95||Voluntarily returned by INS to Mexico|
|8/4/96||Issued a warning for trespassing at Norfolk Southern Railroad yard in Macon, Georgia||Angel Resendez-Ramirez|
|8/6/96||Arrested for trespassing at railroad yard in Science Hill, Kentucky; pled guilty, sentenced to three days imprisonment, and released||Angel Resendez-Ramirez|
As is clear from a review of this record, Resendez had an extensive criminal history in the United States. He was convicted on at least nine separate occasions, including for serious felonies such as burglary, carrying a loaded firearm, and making false statements. Before 1998, he was deported to Mexico by the INS at least three times and was voluntarily returned to Mexico by the INS at least four times.
Most of the events described in the chart occurred before IDENT was deployed in 1994. None of this information was contained in IDENT.20
However, much but not all of the information was in other INS records. Resendezs A-file contained information about two of the entries: 220 pages relating to his federal conviction in St. Louis, Missouri, in March 1989 and 47 pages relating to his resulting May 1991 deportation. The documents relating to the Missouri conviction include an NCIC record, dated February 6, 1989, which contains information on many of his prior offenses and encounters with the INS, such as his October 1976 apprehension at McAllen, Texas, and voluntary return; his April 1980 conviction in Miami, Florida, for burglary; his December 1985 arrest and subsequent conviction for making a false claim to U.S. citizenship (no location listed); his June 1986 arrest for attempting to enter the United States illegally at Laredo, Texas; his August 1987 deportation proceeding in Texas; and his January 1988 arrest in New Orleans, Louisiana, for defrauding an innkeeper and illegal possession of a concealed weapon.
Another nine-page juvenile INS A-file for Resendez (under the name Angel Cano Reyes-Recendez) contained documents relating to Resendezs September 29, 1977, conviction in Corinth, Mississippi, for destroying property and the resulting October 13, 1977, voluntary return to Mexico.
Other INS databases contained more information on Resendezs criminal history. The CIS database references an exclusion of Resendez (on August 31, 1976, from San Antonio, Texas); and three deportations (on September 13, 1985, from Miami, Florida; on October 2, 1987 from Brownsville, Texas; and on May 13, 1991, from El Paso, Texas).21 The DACS database contains records of Resendezs deportations on October 2, 1987, and May 13, 1991. NAILS contains records of his May 13, 1991, deportation.
B. Resendezs Seven Apprehensions and Voluntary Returns to Mexico in 1998
We found no information describing Resendezs whereabouts between his last known arrest in August 1996 and his first apprehension by the Border Patrol, in January 1998, that appeared in IDENT. According to IDENT, in 1998 Resendez was apprehended a total of seven times by the Border Patrol as he attempted to enter the United States illegally from Mexico. Each time, the Border Patrol processed Resendez in IDENT and voluntarily returned him within a few hours to Mexico.
This section provides the details of these seven apprehensions. First, however, we describe the general procedures followed by Border Patrol agents who apprehend aliens along the Southwest Border for illegal entry.
As a result of information provided by the apprehended alien, by IDENT, or by any database inquiries, Border Patrol agents must decide whether to refer the alien for prosecution or allow the alien to voluntarily return across the border, without formal proceedings. If the agent decides to refer the alien for prosecution, a Border Patrol agent or supervisor must call local detention facilities used by the INS to see if there is space to hold the alien. If detention space is available, an agent normally calls an Assistant United States Attorney (AUSA) and asks if the United States Attorneys Office (USAO) will prosecute the case. If so, the alien is transported to the detention facility pending the prosecution.
If the illegal alien is from Mexico, is not going to be prosecuted, and has been apprehended near the border, the Border Patrol almost always voluntarily returns the alien to Mexico within 24 hours. Normally, INS Detention and Deportation officers take the alien to a port of entry in a bus or a van and the alien returns to Mexico.
The Border Patrol did not seek to have Resendez prosecuted for the charge of entry without inspection (8 U.S.C. § 1325) or the charge of reentry after deportation (8 U.S.C. § 1326). If the Border Patrol agents had learned that Resendez had been previously deported three times and had an extensive criminal history, they likely would have sought to bring a felony prosecution for reentry after deportation. Proving the charge of reentry after deportation is relatively easy. It simply requires proof of a prior order of deportation, a prior warrant of deportation (in which a Detention and Deportation employee certifies that the alien exited the country on a particular date), and evidence that the individual before the court is the same individual who was previously deported.
According to prosecutors to whom we spoke, aliens with a prior aggravated felony record would typically receive at least a 36-month sentence for a conviction for reentry after deportation. However, prosecutors in both jurisdictions in which Resendez was apprehended in 1998 and 1999 (New Mexico and the Western District of Texas) estimated that based on Resendezs three prior deportations and seven convictions, including several convictions for aggravated felonies, he would have received a sentence of 57 to 72 months imprisonment.
The charge of entry without inspection also is easy to prove. It requires presentation of the I-213 form reflecting that a Border Patrol agent apprehended the alien based on reasonable suspicion and evidence that the alien at the hearing is in fact the same individual listed in the I-213. We were told that aliens plead guilty to misdemeanor entry without inspection charges in virtually every case brought. While this offense carries a sentence of up to six months imprisonment, an AUSA handling immigration cases in the El Paso Sector said that aliens convicted of this charge are generally sentenced to the time they served while awaiting a hearing. The Chief AUSA in Del Rio said that in that jurisdiction, judges often sentence aliens to serve a sentence in excess of time served, often the maximum six-month sentence.
In Resendezs case, the Border Patrol agents who processed him through IDENT in 1998 did not learn of his criminal record or past deportations. Because IDENT included information about apprehended aliens on a day-forward basis, it did not contain Resendezs extensive record of convictions and deportations.
In addition, according to IDENT Resendez was not apprehended more than the threshold number of times for prosecution for entry without inspection. USAOs and Border Patrol sectors or stations have established thresholds for the number of times an alien can be apprehended and voluntarily returned to Mexico before the alien is prosecuted for entry without inspection. For example, in the Del Rio Border Patrol Sector where Resendez was apprehended five times in 1998, the official written policy is to prosecute apprehended aliens for misdemeanor entry without inspection after the aliens have been given voluntary departure at least in the past. However, based on resource limitations, the actual threshold is higher typically apprehensions, although the actual threshold varies among stations within the Del Rio Sector and can vary from day to day in a station based on alien traffic. The Chief AUSA in Del Rio told the OIG that no aliens are prosecuted for entry without inspection on the illegal entry unless the Border Patrol learns that they have been previously deported or have an aggravated criminal record, such as a prior felony.22
In the Del Rio Sector, Border Patrol Prosecution Officers (POs), rather than AUSAs, have the primary role in presenting prosecutions for misdemeanor entry without inspection cases. AUSAs handle 10 to 15 percent of these cases, normally when the alien requests an appointed counsel. This system has allowed the Del Rio Sector to prosecute many more cases than other sectors, where AUSAs must present even misdemeanor cases to the court.23
The threshold in the Santa Teresa Border Patrol Station, which falls within the El Paso Border Patrol Sector, is apprehensions. The threshold was set in early 1998 by the USAO for the District of New Mexico after a meeting with the Border Patrol in New Mexico. The Acting United States Attorney for District of New Mexico, who participated in some of the meetings with Border Patrol representatives, told the OIG that the USAOs approach was to ask the Border Patrol representatives to calculate a threshold that was not likely to result in more than entry without inspection prosecutions per month from the Santa Teresa and Deming Border Patrol Stations combined. Based on this criteria, the Border Patrol suggested a threshold of for the Santa Teresa Station (and for the Deming Station), and the USAO agreed. In addition, to ensure that the USAO would not be referred an excessive number of entry without inspection prosecutions, the USAO established a limit of such prosecutions per month for the Santa Teresa and Deming Border Patrol Stations combined. These thresholds (and the monthly limit of ) remain in place today.24
Border Patrol stations located in the Texas portion of the El Paso Sector have established a lower threshold level of or more prior apprehensions, but the actual threshold used is considerably higher.
2. Resendezs Seven Apprehensions in 1998
We now describe what happened during each of Resendezs apprehensions by the Border Patrol in 1998, which are listed in the chart on the following pages (along with his apprehension on June 1, 1999).
19 In Appendix D to this report, we provide a more detailed version of Resendezs extensive history of arrests, convictions, and encounters with the INS.
20 The INS had at least one contact with Resendez in 1995 after he was convicted and served a jail sentence in August 1995 in San Bernardino, California. On August 24, 1995, the Riverside Border Patrol placed a detainer on Resendez, and on September 6, 1995, the INS voluntarily returned him to Mexico. This event was not contained in IDENT. When questioned by the OIG as to why Resendez had not been entered in IDENT, the Riverside Patrol Agent in Charge stated that the Riverside Border Patrol office did not have IDENT at the time.
21 CIS also referred to two apprehensions for illegal entry (on June 1, 1976, in Laredo, Texas, and on January 30, 1991, in Jacksonville). However, Resendez was in custody on January 30, 1991, and we found no other evidence relating to a June 1976 apprehension.
22 We were also told that Patrol Agents in Charge at individual Border Patrol stations have the authority to alter (usually raise) the thresholds based on factors such as whether there is a high number of apprehensions that day, whether there is a busy court docket, and whether there are enough agents available to handle the tasks associated with processing the aliens for prosecution (such as contacting the INS detention centers or local jails, completing paperwork associated with the prosecution, and transporting aliens to the detention center or jail).
23 Because virtually all of the aliens prosecuted for entry without inspection plead guilty rather than face continued incarceration pending a trial, POs are able to obtain many convictions for entry without inspection. In fiscal year 1998, the Del Rio Border Patrol Sector prosecuted 2,010 entry without inspection cases out of approximately 131,000 apprehensions of illegal aliens, resulting in 1,989 convictions. By contrast, in the Deming and Santa Teresa Border Patrol Stations within the El Paso Sector, where POs do not present prosecutions, only 15 entry without inspection cases were prosecuted of the 39,412 aliens apprehended.
24 According to the AUSA in the Las Cruces, New Mexico, branch USAO who supervises immigration cases, the primary factors in setting this relatively high apprehension threshold include: (1) Border Patrol stations with long international boundaries, such as Santa Teresa and Deming, tend to have many repeat apprehensions; (2) the USAO would have to divert resources from other prosecutions in order to prosecute entry without inspection cases; and (3) AUSAs had to personally prosecute all of these cases rather than delegate this responsibility to Border Patrol Prosecution Officers. The AUSA said that prior to 1998, the Las Cruces office of the USAO did not prosecute aliens solely for misdemeanor entry without inspection, regardless of how many times they had been previously apprehended, except in rare circumstances. Moreover, according to the AUSA, the USAO even declined some felony cases that were referred by the Border Patrol, including some reentry after deportation cases. This policy was based on the belief that the USAOs limited resources could be better used in prosecuting more serious crimes. The AUSA said that his office has increased the number of immigration-related prosecutions in the last two years and now accepts for prosecution all properly documented felony reentry after deportation cases referred by the Border Patrol.