• Iliana Holguin

Deportation or prison? Depends on the charge

Iowa murder suspect was charged with illegal entry, never felony re-entry.

by: Julian Resendiz Posted: Jul 18, 2019 / 06:50 PM MDT / Updated: Jul 18, 2019 / 06:50 PM MDT

EL PASO, Texas – Marvin Oswaldo Escobar-Orellana, a Guatemalan migrant, was last deported from the United States in 2011 for illegal entry into the country. 

Escobar-Orellana, also known as Marvin O. Esquivel Lopez, had previously been deported in 2010, but U.S. officials did not charge him with the more serious offense of illegal re-entry, a felony punishable by up to 20 years in prison.​ His 2011 deportation in the Laredo, Texas area stemmed from the illegal entry conviction, a misdemeanor for which he was sentenced to 15 days confinement.​

Escobar-Orellana is now suspected of murdering a 29-year-old mother and her two children in Des Moines, Iowa.​

Immigration attorneys say illegal entry is one of the most common charges they come across in federal court, especially on the southern border, where Escobar-Orellana was caught, convicted and deported.​

“Most of the people I go interview at the immigration detention facilities are prosecuted for either illegal entry or illegal re-entry,” said El Paso immigration lawyer Iliana Holguin. “I think the policy is pretty much to prosecute all cases. It’s not 100 percent, like in the days of Zero Tolerance, but it’s very, very high.”​

Immigration agencies within the Department of Homeland Security did not immediately provide up-to-date data on illegal entry and illegal re-entry. A review of federal government databases, however, show that such number has fluctuated in the past few years, according to the ebb and flow of illegal immigration.​

The United States Sentencing Commission, in a 2018 report, puts the number of illegal re-entry offenses at 15,744 for fiscal year 2016 and 15,767 for fiscal year 2017. Almost all of the convicted migrants were men (96.9 percent) and Hispanic (98.9 percent). Their average age was 36 years, according to the agency.​

A total of 97.3 percent of illegal re-entry defendants were sentenced to prison and their average sentence was 12 months, according to the report.​

The report did not include the misdemeanor illegal entry prosecutions, which are only punishable by a maximum of one year in prison.​

“Illegal entry is a misdemeanor and people usually end up doing time served, which is a week or a week and a half. But in felony re-entry, that would be a minimum of at least several months, depending on your prior criminal history. … You could do three years or 36 months,” Holguin said.​

She said she has never come across a defendant who received the maximum 20-year sentence for illegal re-entry in the El Paso area.​

According to the Sentencing Commission, federal guidelines state that an unauthorized migrant with no previous criminal history may be imprisoned for up to 2 years, whereas one convicted of three or more misdemeanors involving drugs, crimes against persons or a “non-aggravated” felony may serve up to 10 years. Those with a history of aggravated felonies may be sentenced to up to 20 years. In addition, it’s possible for a defendant with no history of aggravated felonies to get a sentence reduction under expedited removal, which means he or she agrees not to contest the deportation and pledges not to return.​

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