Courts shifting from simple deportations to mass convictions
Trump expanding immigration policy that criminalizes illegal border crossers
DEL RIO — The shackled migrants in orange jumpsuits shuffled into this border town’s small federal courtroom one recent morning, each facing a short prison sentence and swift deportation for the federal crime of entering the United States illegally.
In other areas along the border, they might have been simply detained before being quickly removed in an administrative process outside of any courtroom. Perhaps, some would have had a chance to make their case to an immigration judge.
But it was here, in 2005, that frustrated Border Patrol agents developed a program they named Operation Streamline to prosecute all migrants caught within a stretch of the border en masse and channel them into the federal justice system, where the Bureau of Prisons has more resources to hold them for longer before deportation.
So it took U.S. Magistrate Judge Collis White little more than an hour to read all of the 29 shackled defendants their rights, describe their crime of entering without inspection, and then go around the courtroom, inquiring whether they wanted to plead guilty.
Sharing a single defense lawyer, all said they did.
The judge left them with a stern warning before they were hauled off to prison.
“Next time,” he said, “it will be two years.”
Now, President Donald Trump’s administration is expanding this program of dizzyingly fast mass convictions to other federal courts along the border in Arizona, even California, and has, under a new directive from Attorney General Jeff Sessions, ordered U.S. attorneys across America to prioritize such immigration prosecutions.
“For those that continue to seek improper and illegal entry into this country, be forewarned: This is a new era. This is the Trump era,” Sessions said in April as he issued a memorandum expanding the enforcement of immigration crimes, ordering federal prosecutors to pursue the most serious criminal charges for crossing the border unlawfully.
Never mind simple deportations; Sessions wants more migrants who cross the border illegally to be charged criminally with misdemeanors for first offenses, and repeat offenses prosecuted as felonies punishable by up to 20 years in prison. The criminal conviction can prevent anyone from ever returning legally again — even if they qualify for such a status. Many of these cases are prosecuted in the fast-track mass hearings characteristic of Operation Streamline, which the government renamed last year as the Criminal Consequence Initiative.
“Now that we have a new administration in office, more sectors are utilizing this,” said Carlos Villarreal, an assistant Border Patrolchiefover Streamline.
Yuma and Tucson, Ariz., have revived zerotolerance prosecutions and he said California sectors would start implementing the program next year.
“They’re going after the Del Rio model now,” Villarreal said. “The partnership is in place with the mandate from the attorney general.”
The expense to the federal courts and Bureau of Prisons of criminalizing what is usually a civil offense is staggering. Detaining migrants on such charges alone costs some $1 billion a year, according to estimates by Grassroots Leadership, an advocacy group in Austin opposing incarceration.
The crime of illegal immigration now makes up almost half of all federal cases and 80 percent of the dockets in the Western and Southern Districts of Texas, which includes Houston.
“You only have so many courtrooms, so many judges, so many attorneys. You only have so much jail space in courthouses and only so many U.S. marshals,” said Randy Capps, director of research for U.S. Programs at the Migration Policy Institute, a think tank in Washington, D.C. “Putting people in federal prison is really expensive. … It costs a lot of money to prosecute people in this way.”
With the Trump crackdown in force, immigration cases in federal courts spiked 27 percent in May from the previous month, jumping another 18 percent to more than 5,500 filed in June, according to an analysis of federal data by the Transactional Records Access Clearinghouse, a data research group at Syracuse University. Most of them were for entering the country without authorization.
Meanwhile, the secondmost pursued offense by U.S. attorneys — going after drug-related offenses during the height of the nation’s opioid epidemic — made up just 14 percent of all new federal cases this spring, falling to its lowest level in a quarter of a century, according to Syracuse University.
“Every other type of federal crime on the books — drugs, financial crimes — is getting pushed aside in favor of throwing more resources into going after people violating immigration laws,” said César Cuauhtémoc García Hernández, a University of Denver professor focused on the intersection of criminal and immigration law. “We’ll have to see whether the (Texas) Southern and Western District becomes the canary in the coal mine, if they become the model for the rest of the country.”
Supporters of expanding immigration prosecutions say the prospect of prison time has contributed to historically low apprehensions at the border and deter migrants from trying to return. Border Patrol officials point to the agency’s own figures showing that the number of people attempting to cross the border again within a year fell from 29 percent in 2007 to 14 percent in 2014.
The Government Accountability Office, however, has found problems with the agency’s methodology, suggesting return rates basically remained unchanged when measuring over a more realistic time frame of three years and excluding immigrants who stayed in the United States in that period.
While the legality of such mass expedited hearings — a monthslong federal process condensed into one — has been upheld by appellate courts, advocates say the proceedings deprive immigrants of due process.
In particular, they say it punishes asylum seekers in a violation of international treaties and can deny them an opportunity to make their claims for refugee status at all.
“It’s an en-masse way to cut off judicial review and due process for immigrants,” said Lena Graber, a staff attorney at the Immigrant Legal Resource Center, an advocacy group in San Francisco.
“You only have so many courtrooms, so many judges, so many attorneys. You only have so much jail space in courthouses and only so many U.S. marshals. Putting people in federal prison is really expensive . ... It costs a lot of money to prosecute people in this way.” Randy Capps, Migration Policy Institute
Crossing the U.S. border without a visa or other authorization has been a crime since 1929, when Coleman Livingston Blease, a white supremacist senator from South Carolina, proposed it to cut down on Mexican immigration.
Simply being here illegally, however, has always been a civil offense, punishable by deportation.
For decades, the federal criminal statute was rarely used, reserved for only the most egregious offenders or those with serious criminal records.
But in 2005, as many Central Americans streamed over the Eagle Pass golf course hugging the Rio Grande, the frustration of Border Patrol agents in the Del Rio sector bubbled over.
Unlike Mexicans or Canadians, who can be bussed quickly back across the border, deporting residents from other countries through the civil immigration courts was, and remains, a more complicated process involving consular documents and flights.
That means they have to be kept in detention longer. But there wasn’t enough bed space to hold them all. When agents released them with a notice to appear in immigration court, many didn’t show up.
All that changed with Operation Streamline. Suddenly, catch and release became catch, convict and deport.
Within a year, the number of migrants apprehended in the Del Rio sector had halved to 23,000 by 2007, a drop Border Patrol agents credited to the threat of criminal prosecution. Michael Chertoff, then-secretary of the Department of Homeland Security, said it is a “very good program, and we are working to get it expanded.”
Over the next few years, similar zero-tolerance prosecution initiatives were implemented in six of the nine southwestern border sectors. In California, U.S. attorneys declined to take part.
By 2013, misdemeanor and felony prosecutions for crossing the border had skyrocketed to more than 91,200 cases, a 500 percent increase from 2003. Sixty percent of those charges were filed in the Southern and Western Districts of Texas.
President Barack Obama prosecuted a record 631,315 people for crossing the border, more than 2½ times as much as under President George W. Bush.
But with the courts clogged, resources strained, comprehensive immigration reform stalled in Congress and more families and children crossing the border during Obama’s second term in office, the pendulum swung away from criminally prosecuting every border crosser — but not in Del Rio. BBB
After Judge White read the 29 shackled defendants their rights, a court interpreter asked each whether they understood. A cascade of “Si” echoed around the room.
“There are very important consequences to pleading guilty,” the judge said. “You will be deported. If you come back again illegally, you’ll be looking at a felony charge and spend as much as 20 years in prison. You won’t be able to apply for any kind of legal status for at least the next five years.”
The hourlong mass hearing has all the wellworn familiarity and rote mechanics of a Shakespeare play — the script never deviates, only the actors do.
The immigrants nodded solemnly. Coming from Mexico, El Salvador, Honduras and Guatemala, some were construction workers or farmers trying to find work, but many were fleeing violence back home or trying to reunite with their families. About one in three had been deported before.
Reginald Van Wade, costing taxpayers $132 an hour as the court-appointed counsel, gave all his 29 clients, whom he’d met for the first time in jail the day before, the same standard advice: They could plead guilty to the misdemeanor and receive some 10 days for a first offense, or they could take the case to trial, where losing is almost guaranteed, and risk much longer in prison. Either way, they would likely be deported.
Before their pleas were entered, Van Wade read brief summaries of each immigrant’s situation, including whether they had criminal records.
Elvis Rivera has a wife and children in the U.S.
Juan Dorantes, a horse trainer, was on his way to Alabama to earn money for his family back home. He had been deported twice before.
Julio Flores said he left El Salvador after a gang seized his hardware store.
The attorney turned to Surema Montalvo and said: “She is escaping violence.”
The woman was trying to escape a Mexican drug cartel, whose members had threatened her after she saw them stealing from oil producers.
So desperate was she that this was her second time in this very courthouse, having been convicted here for illegal entry and deported just a few weeks before. Her husband and three children are in Atlanta. In Mexico, her brother had been kidnapped.
But this was not the venue to make her case for asylum.
The judge said that he understood why the migrants wanted to join their families here or escape danger back home. But there was nothing he could do in this court. They would have to take up their claims with an immigration officer after serving their sentence.
U.S. District Judge Alia Moses, who has overseen Streamline hearings in this Del Rio courthouse since 2005, said critics of the program are mistaking due process concerns for issues about the laws themselves.
“A lot of people raising issues with the prosecution don’t want to see the laws in place. My view is, ‘That’s fine. Go to Congress,’ ” she said. “The immigrants come into court, we advise them of their rights, we deal with them individually when it comes to their own cases, an attorney is allocated, what part of the process are they not getting that they’re due?” BBB
One of the biggest concerns advocates express about Operation Streamline is that it not only wrongly punishes migrants with valid asylum claims — well-founded fears of persecution in their home countries — but may prevent them from making such petitions at all.
The Department of Homeland Security’s own Office of Inspector General identified this as a problem in 2015, noting that the United Nations convention on refugees, to which the U.S. is a signatory, holds that countries should not impose penalties on refugees who enter unlawfully to ask for asylum.
“Border Patrol does not have guidance on using Streamline for aliens who express fear of persecution or return,” it said. “Its use of Streamline with such aliens is inconsistent and may violate U.S. treaty obligations.”
The agency argues that migrants can request asylum after serving their prison sentence. But many never get that chance.
Both the U.S. Commission on International Religious Freedom and Human Rights First, a national non-profit, have documented dozens of instances in which Customs and Border Protection officers wrongly didn’t refer migrants for asylum interviews or pressured them into withdrawing their requests.
In April, for instance, agents apprehended a Mexican family near Del Rio, according to the researchers. They told agents that they had been extorted, beaten, kidnapped and shot by members of a cartel that also had targeted other relatives.
Nonetheless, they were convicted of illegal entry through Operation Streamline and swiftly deported without seeing an immigration judge to ask for asylum.
It was only when they tried again to cross the border a few weeks later that they were able to pursue their claim.
Even when migrants carry U.S. government
paperwork specifically requesting asylum, they are often prosecuted. Nayron Pineda, who fled Venezuela in May after he was threatened for protesting the teetering authoritarian government, handed the official U.S. paperwork requesting asylum to Border Patrol agents when they apprehended him, his wife and their 15-yearold daughter in Presidio in West Texas. His sister in Colorado had sent him the document.
Despite the asylum request, and no history of criminal or immigration violations, agents referred the parents for prosecution and booked them into detention. They sent the daughter to a federal foster care facility in El Paso, and she was eventually released to her aunt.
The couple pleaded guilty to illegal entry. But in their case, they were spared immediate deportation, transferred instead to an immigration detention facility to try make their case for asylum.
Controversy around Operation Streamline also has centered on whether it violates due process. The procedural shortcuts put such basic rights at serious risk, Human Rights Watch found.
Public defenders and defense attorneys said many immigrants do not understand the impact of pleading guilty, which almost all of them do. In some districts, plea agreements required migrants to waive challenges to previous deportation orders and admit that they didn’t have a fear of returning home, forfeiting any claim to asylum.
Some advocates say the volume of cases and speed of the process make mistakes inevitable.
“The court wants to race through,” said Chris Carlin, an assistant federal public defender in the Alpine/Pecos division, who noted that many of his clients are indigenous Guatemalans who hardly even speak Spanish and don’t grasp the process.
Last year, his office oversaw 2,500 such prosecutions, up from 350 in 2002.
“They are prosecuting as many people as the system will bear,” he said. “It’s very hard to keep up with.”
His boss, Maureen Franco, the federal public defender for the Western District of Texas, said she worries that expanding such fast-tracked prosecutions will inevitably sweep up potential American citizens.
“We have seen a real uptick in clients who have legitimate claims to citizenship through the birth of their mother and father or grandparents, but those cases take a lot of time,” she said. “The wider you cast the net, the more chances that’s going to happen.”
Researchers at the University of Arizona’s Center for Latin American Studies interviewed more than 1,100 migrants who had been deported back to seven Mexican cities between 2010 and 2012.
One-third had been criminally prosecuted through Streamline. Of those, only 40 percent said that their lawyers mentioned basic legal rights such as that of a fair trial. Just as many said their attorneys simply told them to plead guilty. Only 1 percent said their attorneys had inquired into their legal status and whether they had rights to U.S. citizenship.
The 9th U.S. Circuit Court of Appeals, with jurisdiction over Arizona and California along the Mexican border, has opined on Operation Streamline several times, holding in 2013 that defendants in mass hearings must be asked individually if they understand and how they plead.
Prosecutors there also agreed that no more than seven defendants should be represented by a single attorney.
In another ruling, in May, the same court ruled that defendants in mass hearings should not be shackled together before the judge, meaning each defendant could now require the presence of a U.S. marshal — a tremendously expensive proposition.
“This is one of the single biggest blows to the Streamline program,” said Billy Peard, a staff attorney in Tucson with the ACLU of Arizona. “It significantly increases the resource demands.”
Those rulings by the 9th Circuit, however, don’t apply to Texas, which falls under the jurisdiction of the more conservative 5th Circuit where the courts have not once addressed such procedural concerns.
What turned some U.S. attorneys and judges against Operation Streamline during Obama’s second term wasn’t necessarily due process issues, but its costs.
U.S. District Judge Sam Sparks, who oversees Austin in the Western District, has called the expenses involved in prosecuting all immigrants for illegal entry “simply mind-boggling,” saying the taxpayer cost is “neither meritorious nor reasonable.”
Gil Kerlikowske, a former commissioner of Customs and Border Protection under Obama, said the caseloads in some federal courthouses along the border, especially in Texas, were overwhelmed by illegal immigration.
The situation is now likely to become only more acute as the Trump administration ramps up such prosecutions.
So far, unleashing immigration agents in a national crackdown on illegal immigration has been the Trump administration’s most visible initiative to date, at least in part because the president has been able to change policy without action by Congress.
Now Sessions’ directives that prosecutors bring more severe charges against illegal crossers mean more migrants will land in the overwhelmed federal courts, and the expensive Bureau of Prisons, for longer periods.
If they decide to forgo guilty pleas in favor of asking for a trial, it could be disastrous for the courts.
“The federal courts might just grind to a halt,” said García Hernández, the University of Denver professor. “They are not equipped to provide trials to anywhere near the number of people getting convicted of immigration crimes.”
But Villarreal, the assistant Border Patrol chief over Operation Streamline, surveys the landscape along the U.S. border and sees a long overdue return to tougher tactics.
“It is,” he said, “going back to the way it used to be.” lomi.kriel@chron.com twitter.com/lomikriel