The Immigration Prosecution Factory

Initiated in 2005 to expedite immigration court proceedings, Operation Streamline is rife with problems—due process concerns, asylum seekers lost in the shuffle, separated families, the whole enterprise an offense to human dignity and presumptive innocence. Prosecutions are not a substitute for solid, sensible immigration reform. Yet the program has expanded in the past, and we are likely to see it grow yet again under the Trump Administration.

As Central Americans flooded the U.S.–Mexico border in 2005, fleeing some of the deadliest countries in the world, U.S. Department of Homeland Security (DHS) and the Department of Justice sought an expedient way to process the cases of those arrested, and institute disincentives to cross again. They came up with Operation Streamline, a “zero-tolerance” program that prosecutes unauthorized migrants en masse, vastly increasing the number of people charged, permitting only brief pre-hearing meetings with attorneys, and resulting in rising costs to taxpayers as the program has expanded.

Assembly-line justice. Conveyor-belt prosecutions. Fast-track immigration proceedings. The terminology used to describe Operation Streamline captures the mechanical and dehumanizing nature of the program in which large groups of defendants are prosecuted in a single afternoon. Such numerous and rushed proceedings result in violations of due process; overlooked special circumstances such as asylum claims or citizenship eligibility; and criminal records for most all defendants. Here is how Operation Streamline, essentially a factory-like court system for criminal prosecutions of immigration offenses, works.

EXPEDITED GROUP PROSECUTIONS:

Operating in the Southwestern districts of Customs and Border Patrol (CBP), the main changes implemented by Operation Streamline are group proceedings, the prosecution of first-time entrants (who used to be deported without criminal charges being brought), and the addition of criminal records and jail time before deportation. Every weekday in Tucson (where the program started in 2008), up to 75 defendants are prosecuted at a time (the cap set by the number of court cells available) in under two hours. One judge boasted of processing an afternoon’s cases in a half-hour!

In criminalizing unauthorized immigration, what could be treated as civil offenses are instead treated as federal crimes—(1) illegal entry for first-time entrants, a misdemeanor carrying a sentence of up to 6 months, and (2) illegal re-entry, a felony charge with a minimum sentence of one year, but up to 20 years for anyone with a prior criminal record. (Residing in the U.S. without documentation is only an administrative matter.) The U.S. policy of criminalizing entry is highly unusual, with most countries handling illegal entry of re-entry as administrative matters. Mexico, for example, decriminalized entry back in 2011.

The “zero tolerance” policy of prosecuting all apprehended border-crossers was relaxed in 2014, with a decision to focus resources on prosecuting repeat crossers, and not first-timers. But with Attorney General Jeff Sessions’s April directive to prioritize immigration prosecutions and calling for implementation plans from CBP’s Southwestern districts, “zero tolerance” is back and so are the human burdens and increased government spending that goes with it. In the month following that announcement, criminal prosecutions for illegal entry and re-entry rose 27%, and another 18% the following month. (Transactional Records Access Clearinghouse, Syracuse University).

IMPLICATIONS OF CRIMINALIZATION:

In the day-to-day expediting of Operation Streamline, most defendants are advised by their lawyers to plead guilty, and discouraged from taking their case to trial, a situation in which they are likely to lose, receive a longer sentence, and still be deported. For first-time entrants in Streamline, this usually means a sentence of time already served, a waiver of the $5,000 fine, a misdemeanor on their record, and a warning from the judge that re-entry will result in a felony charge should they be caught crossing again. Repeat crossers are charged with both illegal entry and illegal re-entry; when pleading guilty to the first charge, the second is usually dismissed and they are sentenced to 30-180 days.

The seeming leniency of the sentencing masks harsher truths. The prosecutor could have chosen not to press charges in the first place, avoiding the impossible choice that people are presented when it comes time to plea. Moreover, plea deals often involve relinquishing the right to appeal, and each defendant is now cued up for more severe penalties upon re-entry. These criminal convictions all but eliminate the possibility of entering the U.S. legally in the future, even if the individual would otherwise be eligible for such status.

DUE PROCESS ISSUES:

As often happens with legal short cuts, due process and the right to a fair hearing get steamrolled in the onslaught of prosecutions. Clients and attorneys meet for the first time only a few hours before the hearing in the same court room where the hearings are held, providing little confidentiality for the clients. Moreover, attorneys represent up to 6 defendants at a time. The limited time, brief consultations, and push for plea deals mean that the particular complexities of each individual case are cast aside. Also, though translation services are provided for Spanish speakers, those who speak indigenous languages instead of Spanish are not accommodated. And for anyone unfamiliar with the intricacies of the U.S. court system, the proceedings are simply confusing.

Perhaps the most onerous due process implication of Operation Streamline is punishing potential asylum seekers who are not properly screened with a credible fear interview beforehand. Seeking asylum is a human right, not a crime, and even the DHS Office of the Inspector General has determined that prosecuting asylum seekers may be a violation of U.S. treaties. Yet even when defendants have expressed fear of returning and their attorneys raise the issue during the hearing, it is shelved—would-be asylum seekers are told that Streamline is not the forum, that they must serve their time and apply later, and they leave with a misdemeanor making it harder to apply for asylum. Human Rights First has documented numerous cases of asylum seekers falling through the cracks due to misinformation or discouragement from CBP personnel, and will soon publish a report on their findings.

Finally, due process and proper screening are affected by the indignities and humiliations suffered by defendants, who endure inhumane detention conditions, repeated strip searches, and until recently, shackling at the ankles and wrists when appearing in the court room. These are not circumstances in which people feel free to pose questions or assert rights. In May, the 9^th U.S. Circuit Court of Appeals issued a ruling to eliminate en masse restraints in California, Arizona, and other regional federal courts, deeming the practice unconstitutional. Their decision read in part that a defendant is presumed to be innocent and has “the right to be treated with respect and dignity in a public courtroom, not like a bear on a chain.” Nevertheless, this ruling applies to court proceedings only, and defendants are shackled when meeting with their court-appointed attorneys prior to the hearings and again after conviction.

COSTS IN DOLLARS AND HUMAN SUFFERING:

Operation Streamline is a program designed to make the prosecution of so many tens of thousands of people more efficient, rather than more just, but it is certainly not saving taxpayer money. The volume of prosecutions has skyrocketed over the years, growing 500% in one decade (2003–2013) according to the chart below, even though apprehensions have plummeted. And according to an estimate from Grassroots Leadership, an Austin-based advocacy group, the program tallies up $1 billion in court costs, detention, and deportation annually. Immigration prosecutions represent about half of the federal criminal docket; in Arizona, they are an astounding 80.3% of the docket (2013, Transactional Records Access Clearing House, Syracuse University). And these figures will continue to rise with the Trump Administration’s new priorities.

The cost of the program in human misery is even more distressing. Separated families, thwarted asylum claims, deportation back to violence or poverty—these are burdens borne by the defendants, most of whom have already suffered in their countries of origin or en route to seeking a better, safer life. These costs are incalculable, and though Streamline seeks to deter migrants from crossing the border again, it does nothing to address the circumstances that made them choose to migrate to begin with. Instead, this prosecutorial program, absent legislative immigration reform, only escalates the trauma, desperation, and suffering of an already over-burdened migrant population. When faced with the fear of CBP and possible jail time, the chance to be with family, escape poverty, or flee life-threatening gang violence often proves more compelling.

CONCLUSIONS:

Bringing criminal charges to ever-increasing numbers of immigrants and deciding their fates so quickly and with little or no exploration of case details or regard for due process is unjust and unreasonable. For convicted asylum seekers, prosecution amounts to a violation of their human rights. And the criminalization of crossing the U.S.–Mexico border has resulted in unduly harsh consequences for prosecuted immigrants, setting up a cycle of prosecutorial red tape that’s almost impossible to break, often consigning convicted individuals to bleak futures and family separation. Using the courts to fix a broken immigration system is not a fair, humane, or even cost-effective solution. As the Trump Administration gears up for even more prosecutions, it’s more important than ever to advocate on behalf of migrants and asylum seekers, and demand immigration laws that keep families together, offer viable options for legal status, and uphold human dignity.

Embed from Getty Images

Undocumented migrants, like the one pictured here at the Eagle Pass Border Patrol Station in Texas, are subjected to expedited group prosecutions through Operation Streamline.