El Paso DA Turmoil Could Have Profound Immigrant-Rights Implications

October 13, 2022

The District Attorney of El Paso County, Texas, Yvonne Rosales, is decidedly non-progressive. When running for the seat, Rosales stated, “I don’t think that El Paso is a community that has a lot of racial tension issues as there are going on in many of the other cities across the nation.”

That was in 2020, when former President Donald Trump was actively executing a dangerous “Remain in Mexico” policy for asylum seekers at the Texas border. Despite running as a Democrat in a border county, Rosales did not seem to see this as evidence of “racial tension.”

But that’s not what opponents are pointing to in their current efforts to have her removed from office. Instead, they take issue with her failure to prosecute many people—not by design, as we’ve seen in some reform DAs’ non-prosecution policies, but through apparent disorganization.

Under Texas law, prosecutors only have 180 days to file an indictment against a person after an arrest. If prosecutors fail to do so, the case gets thrown out. Since taking office on January 1, 2021, DA Rosales has seen nearly 400 of her criminal cases thrown out because of indictment delays. An estimated 1,000 motions on other delayed cases are apparently pending from the public defender’s office.

Additionally, a capital murder defendant was freed by a judge because DA Rosales was officially ruled to have sought the death penalty against the man as a form of prosecutorial revenge against the man insisting on a trial.

Removing a DA in Texas requires a legal motion. That motion has been already filed by defense attorney Omar Carmona and retired District Judge Tyron D. Lewis has accepted it. Now it is up to El Paso County Attorney Jo Anne Bernal, a fellow elected Democrat, to decide whether to prosecute the case, but she is refusing to state whether she is interested in taking Rosales on.

Liberal or progressive voters did not have great choices in 2020. Both Rosales and opposing Democratic candidate James Montoya expressed tepid support for reform, without promising substantive changes to how business was done under previous DA Jaime Esparza.

Activists were already pointing to the discretionary power to not prosecute nonviolent, low-level charges as a way of protecting migrants from deportation.

Esparza, a Democrat who served as the DA of El Paso for 28 years, was a good example of how party politics really did not matter much historically when it came to prosecutors. He offered a 10-year plea deal to Daniel Villegas, a 16-year-old who initially pled guilty to a double homicide, but later said his confession was coerced by police and proclaimed his innocence. When Villegas refused to plead guilty, Esparza personally took him to trial and obtained a conviction. In 2018, Villegas was exonerated of the murders and released, after spending virtually all of Esparza’s tenure locked up.

Toward the end of Esparza’s tenure, when Trump was president, immigrant-rights activists were already pointing to the discretionary power of the prosecutor to not prosecute nonviolent, low-level charges as a way of protecting migrants from the disproportionate punishment of deportation.

For example, a 2017 report from Harvard Law School, the Immigrant Defense Project, and the Immigrant Legal Resource Center recommended that prosecutors “consider immigration consequences at all stages of the criminal process, starting with the initial charging decision and lasting throughout plea negotiations.”

Yet Esparza, as the chief local law enforcement officer in one of the nation’s largest border communities, opposed even marijuana legalization. He claimed that cannabis is a “gateway drug”—a long-debunked theory.

US Border Patrol currently takes well over 1,000 migrants into custody in El Paso every day, many of whom are screened and released to sleep on the streets, with shelters above capacity, while they await hearings.

For those who care about immigrants’ rights, few local races will be as important as the El Paso DA election in 2024.

If the judge decides to rule against Rosales in the removal action, then he will be able to appoint her temporary successor. That would be catastrophic for reform in El Paso County, since Judge Lewis, a former legislator, is a deeply conservative, “tough-on-crime” judge.

But an interim DA would only be in place until the 2024 election, which would then be fought without an elected incumbent. If a strong progressive candidate emerged, the timing could make it a critical development for immigration rights.

Besides Trump, the most likely 2024 presidential contender on the Republican side is Florida Governor Ron DeSantis. His notorious aggression toward immigrants has included the political stunt of forcibly removing asylum seekers from Florida to Massachusetts. Chances are that a DeSantis presidency would mean the return of Trump’s anti-immigrant agenda—or even worse.

For those who care about immigrants’ rights, few local races will be as important as the El Paso DA election in 2024.



Photograph of El Paso by BenjaminMonroy via Wikimedia Commons/Creative Commons 4.0

Rory Fleming

Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School's Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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