More Streamlining, More Prisons

Since its start in 2005, Operation Streamline has instituted a judicial assembly-line of immigration prosecutions in districts along the U.S.–Mexico border, accompanied by the requisite expansion of prison space. As incarceration numbers skyrocket, so have abuses and poor conditions. In the shuffle of expediency, the system misses potential asylum claims, ignores special circumstances, violates rights, and fails to uphold our core values of justice and human dignity.

Over the years, Operation Streamline—the program of fast-track, en-masse criminal prosecutions of people who cross the U.S.–Mexico border without documentation—has become standard practice for processing these cases in the Southern districts of Texas and Arizona. This separate (and inherently unequal) court system processes hundreds of cases each day (typically 20–75 at a time), and in prioritizing efficiency over due process, results in numerous shortcuts and rights violations—rushed client consultations, inadequate translation services, coercive plea deals, overlooked asylum or citizenship claims, family separation, and criminal records for everyone convicted despite many defendants with no prior criminal history. (For more information on Operation Streamline, see our article from the November 2017 newsletter, The Immigration Prosecution Factory: https://www.kinoborderinitiative.org/immigration-prosecution-factory/.)

The engine powering this prosecutorial machine is a “zero tolerance” border policy, which stipulates prosecutions for illegal entry and re-entry. (Though categorized as crimes in the U.S. for decades—though not in most other countries—these offenses were rarely seen as serious enough to prosecute, and were handled as administrative matters instead.) In Southwestern districts, the Department of Homeland Security and the Department of Justice, backed by Congressional funding, overwhelmed Streamline courts with cases. By 2013, immigration prosecutions represented about half the federal criminal docket; in Arizona, they were an astounding 80.3% of the docket (Transactional Records Access Clearinghouse, TRAC). In a reshuffling of prosecutorial priorities, the Obama administration, which had expanded “zero tolerance” during its first term, moved away from it in 2014. But under the Trump administration, the policy is back in full-force, and with it, an expansion of Operation Streamline, including recent implementation in the Southern District of California (SDC).

EXPANSION TO SOUTHERN CALIFORNIA: As Operation Streamline spread across the borderland districts of the U.S. (first in Southern Texas, and by 2008, to Southern Arizona), the U.S. Attorney’s Office in San Diego adamantly rejected the program. They rarely prosecuted border crossers, referring them to immigration officials instead, and allocated their resources to serious threats to public safety. But in April, then-Attorney General Sessions issued his “zero tolerance” directive, requiring that criminal charges be brought against all undocumented people apprehended at the border. Immigration prosecutions in the SDC courts exploded, with overtaxed dockets and hearings running as late as 10:00 p.m. From April to June, the number of misdemeanor illegal-entry cases grew almost six-fold, from 153 to 882; and in July, when the SDC succumbed to the logistical pressure and Streamline was set up, the caseload was 928 cases, an 889% increase over the previous July (TRAC).

Still, the prevailing sentiment in that district continues to be one of resistance, with many San Diego judges and attorneys viewing mass prosecutions and deterrent-hyped “zero tolerance” as both ineffective and inhumane, rife with due process concerns and outright violations. To counter the detrimental impact, the SDC eliminated same-day pleas from the Streamline protocol in September, thereby attempting to reduce the occurrence of coerced “guilty” pleas and allowing time to assess the advisability of a plea deal and any special circumstances. (Pleas usually require waiving the right to a trial, where evidence can be presented to combat charges, and the right to appeal; they also can affect one’s ability to apply for asylum.) In addition, defense attorneys are taking extra efforts to identify asylum seekers and encourage them to file claims, and the non-profit Federal Defenders of San Diego has filed several challenges to Streamline’s expedited prosecutions in the 9^th Circuit Court of Appeals.

FAMILY SEPARATION: Earlier this year, approximately 2,300 immigrant children were separated from their parents or guardians after crossing the U.S.–Mexico border. Secretary of Homeland Security Kirstjen Nielsen claimed that family separation was not government policy, a less-than-forthright, if technically accurate, assertion that masked the underlying reason behind tearing families apart. The policy was—and continues to be—the “zero tolerance” prosecutions of border crossers (through Operation Streamline), asylum seekers among them. The term “zero tolerance” is itself misleading because parents were prosecuted at a higher rate while other people were prosecuted at a lower rate.

This prosecutorial policy provided the grounds for separating families because children are taken away to centers run by the Department of Health and Human Services when their parents are charged with crimes; in immigration cases, the adults are held separately in detention facilities.

Adding to this travesty, Sessions asserted in his April announcement, “If you are smuggling a child then we will prosecute you, and that child will be separated from you as required by law.” A more apt reaction to the situation came from Federal Magistrate Judge Ronald G. Morgan, faced with a courtroom full of Streamline defendants, many inquiring about the welfare and whereabouts of their children: “If you can imagine a hell, that’s probably what it looks like.”

ASYLUM SEEKERS: Seeking asylum is not a crime; it is a human right, codified in international law and treaties signed by the U.S. The manner of entry is irrelevant; anytime a Border Patrol or Immigration and Customs Enforcement (ICE) agent encounters someone who expresses fear of returning to their home country, the agent is required to refer them to the asylum process, a system independent from Operation Streamline prosecutions. Yet under the Obama administration, amidst the harshness of “zero tolerance” and the haste of Operation Streamline, potential asylum applicants were indeed wrongly prosecuted—detained, charged, arraigned, sentenced, and even deported without a credible fear screening or a hearing before an immigration judge.

Now, the Trump administration’s hostile stance toward migrants and asylum seekers and efforts to curtail immigration and asylum applications, prosecutions against asylum seekers have increased. Back in June, Sessions announced new asylum guidelines eliminating domestic and gang violence as grounds. More recently, President Trump sent 5,000 troops to the border as a defense against the “national security threat” of vulnerable, asylum-seeking Central Americans arriving there. And in early November, Trump issued a presidential proclamation banning anyone entering the U.S. between official ports of entry from applying for asylum (though entry through these official checkpoints is often limited to under 10 asylum seekers per day). Intended to be put into immediate effect, this attempt to reverse established asylum law was submitted to the federal register without the usual public comment period. By mid-month, a federal judge in San Francisco ordered the Trump administration to resume accepting asylum claims from migrants regardless of where or how they entered the country. Judge Jon S. Tigar’s order read in part, “Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”

The proclamation intensified concerns about whether people fleeing violence and persecution would have access to protection and due process. For the past year in Tucson, individuals going through Streamline have attempted to safeguard their rights by carrying informal one-page petitions that declared their fear of returning to their home countries and requesting a hearing before an immigration judge. The documents were a way for individuals to flag themselves for asylum screening, even if they were understandably intimidated by the institutional settings or, in the case of indigenous speakers, not able to convey their wishes in Spanish or English. But starting in December, the U.S. Marshal’s Service deemed the petitions an undue burden, and barred asylum seekers from carrying them.

INHUMANE INCARCERATION: Streamline defendants who are sentenced to further time and not immediately deported are incarcerated in facilities operated by the Bureau of Prisons (BOP), a vast number of which are subcontracted private prisons. BOP reports that non-citizens represent 23% of their population. This percentage is a direct result of Operation Streamline, and is likely to rise along with the profusion of private prisons as “zero tolerance” persists.

This rapid growth of the incarceration capacity—public and private, prisons and detention centers—brings with it a plethora of disturbing consequences: poor oversight and accountability, inadequate staffing, continued overcrowding, administrative mistakes, negligent care, curtailed services, unaddressed complaints, inhumane conditions, and rights abuses. Throughout the system, detainees (which increasingly include asylum seekers) and convicted individuals suffer violations such as unsafe and unsanitary conditions, undue solitary confinement, unauthorized strip searches, ignored medical concerns, misinformation, and hostile or discriminatory treatment.

But the situation is more troubling within private prisons, where the bottom line and shareholder interests—rather than quality of service or human rights—guide decision-making. Nurses are called when doctors are needed; urgent ambulance rides get postponed indefinitely; moldy meat is served anyway. Most horrific, pregnant women miscarry and, over the last two decades, dozens of people have died while incarcerated. In the end, tax payers end up contributing to private prison profits, and underwrite this degrading, dangerous system–public and private—to the tune of $1 billion a year (Grassroots Leadership).

CONCLUSION: In fiscal 2018, the Department of Justice brought 100,453 new immigration prosecutions (TRAC), largely processed through Operation Streamline, and this escalation is on track to continue at the expense of immigrant communities, family unity, and asylum and human rights. Advocacy efforts encompass a range of issues, many at the forefront of the KBI’s work—decriminalization of human mobility across borders; a return to prosecutorial discretion; an end to Operation Streamline; the eradication of private prisons (proposed by President Obama in 2016); and a strict standard of fair, just, and humane treatment for all migrants and asylum seekers. Instead, we must channel resources toward reform that recognizes the realities of immigration flow, the needs of asylum seekers, the integrity of the family, and the principle of human dignity. As prosecutions ratchet up and we reach the halfway mark of the Trump administration, these issues are more critical than ever, and require our ongoing insistence on compassionate, fair, and viable immigration policies.