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experience, “One or two out of ten will be English-speaking. There are defendants who
don’t speak Spanish, who grew up in the US.” 132
Defendants who grew up in the US from a young age, whose entire families are in the US,
and who have no ties to the countries of their birth are so common, the US Sentencing
Commission in 2010 amended the sentencing guideline to recognize “cultural
assimilation” as a valid reason for granting a lower-than-guideline sentence, to be
considered in cases where, in part, “those cultural ties provided the primary motivation for
the defendant’s illegal reentry or continued presence in the United States.” 133
Nearly every defense attorney interviewed, however, stated they had rarely seen judges
cite this provision in granting lower sentences. Because there are many defendants in this
situation, reducing sentences every time someone has strong family ties arguably would
defeat the purpose of the guideline, which aims to set the sentence for the majority of
defendants. For example, in ruling on a case in which the defendant had grown up in El
Paso since the age of 10 and had parents, siblings, and children in the US, the judge
noted, “Unfortunately, the Court sees a number of illegal aliens who come into the United
States around age 10, and the Court has trouble distinguishing [the defendant] from the
many others before the Court.” 134 Angela Viramontes, an assistant federal defender in
Riverside, California, said she had heard a judge tell her colleague, “If I apply it in this
case, I’d have to apply it to all cases.” 135 Defense attorneys also noted that “cultural
assimilation can be a double-edged sword,” 136 as judges sometimes see these very ties as
evidence that the defendant is likely to come back and should be more harshly sentenced
in order to provide a stronger deterrent.
Human Rights Watch acknowledges that many illegal reentry defendants with strong family
ties have prior criminal convictions in the United States, and human rights law recognizes
that the privilege of living in any country as a non-citizen may be conditional upon obeying
132 Human Rights Watch interview with Magistrate Judge Philip Mesa, El Paso, Texas, September 26, 2012.
133 US Sentencing Guideline 2L1.2, Unlawfully Entering or Remaining in the United States (2012).
134 United States v. Santibanez-Salais, 2011 US Dist. LEXIS 21199 *12 (D. N.M. 2011).
135 Human Rights Watch interview with Angela Viramontes, assistant federal defender, Los Angeles, California, October 29, 2012.
136 Human Rights Watch telephone interview with Milagros Cisneros, assistant federal defender in Phoenix, Arizona,
September 10, 2012; Human Rights Watch interviews with Susan Anderson, April 2, 2013; and with Davina Chen, assistant
federal defender, Los Angeles, California, September 6, 2012.
51 HUMAN RIGHTS WATCH | MAY 2013