By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
In the Mexican border town of Nogales, Sonora, where buses drop off the newly deported every few hours from the American side, almost everyone seems to have been through Operation Streamline, a U.S. Border Patrol program that aims to hit all migrants entering the U.S. illegally with a criminal conviction.
There's the street peddler, Gary, selling multicolored balloons and pinwheels to the cars lining up to cross into the United States at the main port of entry. He was on his way to San Francisco when he was caught near Sasabe, Arizona, and put through Streamline's wringer.
"It was a bad experience," he says (all Streamline defendants interviewed spoke Spanish). He pleaded guilty to a misdemeanor count of entering the United States without permission, a conviction the Border Patrol believes operates as a deterrent to illegal immigration.
But Gary is determined to cross again. The conviction will not dissuade him, he vows.
Near where Gary's plying his trade, a line of men and women file through a gated passageway into Mexico, after stepping off one of the many buses that deliver deported migrants every couple hours to the U.S.-Mexico line.
Most of the new deportees passing by describe having been shackled hand and foot for the Streamline court in Tucson. Many have just done 30 days or more at a facility in Florence, Arizona, run by Corrections Corporation of America, a private prison behemoth that jails Streamline convicts for the U.S. government.
One clean-cut young man named Luis stops for a moment. He was apprehended in Arivaca, Arizona, on his way to Minneapolis to work as a roofer. He has an aunt up there, he says.
Would he try crossing again, even though he might get more time if caught?
"Yeah, I will," he promises, before moving on with the rest. "I'm not a fucking criminal. I just want to work."
Several people say they felt as though they had no choice but to plead guilty during the Streamline proceedings that occur every weekday at 1:30 p.m. at the federal courthouse in Tucson. There, 70 people a day plead to misdemeanor offense of improper entry by alien, or 18 U.S.C. §1325 of the federal code. Most receive time served. Others who have been previously deported from the U.S. get up to six months in prison as part of a plea agreement with the U.S. Attorney's Office, wherein the more serious felony offense of reentry of a removed alien, or 18 U.S.C. §1326, is dropped.
Champions of Operation Streamline argue that the migrants get a sweet deal, either time served—usually the one to three days they've been in Border Patrol custody—or 30 to 180 days, far less than they'd receive if convicted on a reentry charge. A conviction on §1326 is punishable by two, 10, or 20 years, depending on the circumstances.
Moreover, the Border Patrol maintains that Streamline, which began in 2005 in Del Rio, Texas, and spread to nearly every jurisdiction on the southwest border, is a success. The agency points to dramatic declines in apprehensions where Streamline has been in place.
But Streamline's intended deterrent effect on illegal migration is not borne out by the Border Patrol's own apprehension numbers. The program is a mega-million-dollar boondoggle that fattens the Border Patrol's budget and enriches private prison companies. It diverts resources from pursuing more serious crimes, such as human smuggling and drug and gun trafficking.
Also, Streamline's many critics complain that the program is arbitrary, inhumane and violates due process as well as a Sixth Amendment right to effective assistance of counsel—all for a program that is essentially unnecessary, as an immigrant's removal through the civil administrative process already bars him or her from legal reentry for five years.
At a Nogales station for Grupos Beta, a Mexican aid agency that assists migrants when they come back across the border, the newly deported linger. The station sits next to a cemetery pockmarked with recent bullet holes.
A man named Jose says he was on his way to Texas when he was nabbed by the Border Patrol near Sasabe. Jose did 55 days in Florence, and says his lawyer told him to plead culpable, or guilty. The 55 days he served won't stop him from crossing again. He has a wife and children in Texas. He must go back.
Emma, 42, will be returning too, eventually. Before her Streamline hearing, the Border Patrol fed her by throwing cookies on the ground in front of her, she says. In court, the handcuffs hurt her wrists. She thought she had no option but to plead guilty. She got time served before getting bused to Nogales.
Her husband and two children are in California. Emma came to tend to a sick sister in Mexico and hasn't been able to get back to her family for three years. She says she will keep trying.
"I'm scared," she explains. "But my family's there."
Asked whether her treatment was unfair, she says it was.
"We're not criminals," she says. "I don't feel like a criminal."
Though U.S. Department of Homeland Security Secretary Janet Napolitano claims the DHS (of which Customs and Border Protection and the Border Patrol are a part) is targeting "criminal aliens" for removal, the Obama administration is creating criminal aliens through Streamline.
Migrants—who once would have been removed from the country through a civil-administrative process and barred from legal reentry—now return home with a criminal record that could expose them to escalating punishment if they cross the border again to escape poverty, find work and/or reunite with loved ones.
Streamline began as a "zero tolerance" approach to border enforcement during President George W. Bush's administration. Before its advent in 2005, aliens apprehended by the Border Patrol generally were not prosecuted under existing criminal statutes.
Once migrants began receiving criminal penalties for illegal entry, the Border Patrol claimed dramatic reductions in apprehensions in the Del Rio sector, where the program began. In 2006, Streamline started in the Border Patrol's Yuma, Arizona, sector. Laredo got it in 2007. And in January 2008, Streamline was initiated in the Tucson sector, where it's estimated that nearly half of all illegal entries occur.
Now in eight courts along the U.S.-Mexico Border, Streamline operates a little differently in each one. In some jurisdictions—including Yuma and Del Rio—a magistrate may give a first-time offender 10 or 15 days in detention after pleading guilty. The number of defendants seen per day varies, from 20 to 40 a day in Yuma to 30 to 80 a day in Del Rio.
The Border Patrol claims that the total number of Streamline convictions has topped 133,000 since the program's 2005 launch, but analysts believe this number is low, and the Border Patrol acknowledges that certain sectors are not included.
Nearly 80 percent of the immigrants apprehended in Texas' three Streamline sectors—Del Rio, Laredo and the Rio Grande Valley—are selected for prosecution. That's close to 14,000 cases per year.
In testimony before the U.S. Sentencing Commission in January, Tucson Magistrate Judge Jennifer Guerin reported that since its 2008 implementation in Tuscon, about 30,000 people had been prosecuted through Operation Streamline. Seventy percent of the 30,000 had no criminal record and were charged with first-time illegal entry and received time served, Guerin says. The other 30 percent were charged with both felony illegal reentry and misdemeanor illegal entry. These "flips," as lawyers refer to them, pleaded guilty to the lesser charge and received some jail time as part of an agreement with prosecutors.
Kenneth Quillin, a Border Patrol spokesman in Yuma, says his agency believes Streamline has helped it gain "operational control" over the Yuma sector, because migrants now know there are consequences for crossing illegally.
"I think word got down to would-be crossers," Quillin says, "that if you were to cross in this area, you're going to at least, one, get a charge, and two, spend a little time in jail."
Although all federal magistrates handle the Streamline proceedings differently, Judge Bernardo Velasco, one of the seven magistrates in Tucson hearing Streamline cases, may have the speediest judicial delivery among his colleagues. In the Special Proceedings Courtroom, where Tucson's daily Streamline hearings take place, the 61-year-old veteran magistrate burns through 70 defendants in a little under 40 minutes.
During that time, he advises them of their rights, takes their pleas, sentences them—anywhere from time served to 180 days in custody—and has them out the door and on their way back to Mexico, Latin America or a prison run by CCA.
"I wouldn't say it's pretty," says the blunt Velasco after one Streamline hearing. "But I don't know of anywhere where it says things should be pretty."
Some Tucson magistrates take 90 minutes or more to get through these en masse hearings. But when Velasco's running things, the defense lawyers joke they don't bother to sit down between clients.
Velasco dispenses with the men and women in his court in seven-person bursts. The defendants before him are dressed in the dirty, sweaty clothes they were captured in, their hands shackled to their waists, their ankles in fetters. They look weary and morose. They have not had baths or showers after several days in the desert, and the funk from this forced lack of hygiene pervades the courtroom.
Beside each defendant is a lawyer, often a private attorney hired by the court at a rate of $125 an hour. Some are represented by salaried federal public defenders. Each lawyer has four to six clients in a day's Streamline lineup.
Velasco runs through a series of questions relayed to each migrant with the rapidity of an auctioneer, mumbling as he goes, head down. Individually, he asks them compound questions, translated into Spanish by an interpreter and transmitted to them via headphones: Do you understand your rights and waive them to plead guilty? Are you a citizen of Mexico (or Guatemala or El Salvador), and on such-and-such a date near such-and such a town, did you enter the United States illegally?
The answers never vary: "Sí."
Then he asks them, as a group, whether anyone has coerced them into a plea of guilty. "No," the chorus replies.
Again, they're asked, as a group, whether they plead guilty voluntarily because they are, in fact, guilty. The chorus cries, "Sí."
First-timers receive time served for the petty offense of illegal entry. Those charged with illegal reentry, a felony, plead guilty to the lesser offense of illegal entry and get anywhere from 30 to 180 days.
In the smaller-docketed Yuma courtroom, Magistrate Judge Jay Irwin's pace is more leisurely, almost plodding. On one summer Monday afternoon, the Streamline hearing involves 23 men and takes nearly two hours to complete.
One lawyer represents 23 men. Federal public defender Matthew Johnson says he's handled up to 50 defendants by himself in one day. Compare this with defenders in Tucson, where each lawyer may represent four to six clients at a time.
Defendants are not handcuffed in the Yuma courtroom, though they do wear leg irons. They remain seated until they are sentenced and taken away by marshals. The court interpreter speaks to each man directly in Spanish. No headphones are required.
Irwin advises the group of their rights, and after taking their guilty pleas patiently questions each man on whether they are U.S. citizens, how they entered the country and where they intended to go. Before each man is sentenced, Public Defender Johnson reads biographical details concerning each defendant into the record. The details, along with Irwin's inquiries, have the combined effect of humanizing the defendants, making them individuals instead of part of a faceless herd.
One, named Flores, a truck driver from Phoenix, was arrested at a Border Patrol checkpoint. Johnson says Flores had been a resident of Phoenix for 10 years, and before that, a resident of Los Angeles for 10 years. He was supporting a wife and four American-citizen kids when detained.
Irwin sentences Flores to 20 days. Getting off with time served is a rarity in Irwin's court. Even first-timers with no criminal records get 10 days in jail from the judge before getting booted out of the country.
Later, in his chambers, Irwin explains that "most of the time, not all of the time," he sends defendants to jail for a while.
Surprisingly, two of the 23 defendants before Judge Irwin were heading back to Mexico when the Border Patrol arrested them. Shuttles departing from Phoenix and heading for the border at San Luis, Arizona, are either stopped by Border Patrol agents before they make their destination or checked for undocumented aliens once they've arrived.
"A good percentage of our clients are arrested heading back into Mexico," Johnson says. "The Border Patrol and Customs have what they call 'southbound operations.'
"You hear people complaining that taxpayer dollars are going to arrest these people and to process them," he says. "But if we're arresting people that were footsteps away from Mexico, that argument doesn't carry much weight."
Border Patrol's Yuma sector spokesman acknowledged that the agency conducts southbound ops. He says he can't say how many illegal aliens are apprehended while returning to Mexico. "Well, at one point they entered," Quillin says. "So, no, we don't treat anybody different. When we approach individuals and they say they're going back to Mexico, we just make sure that they do."
But Johnson ascribes a more insidious Border Patrol motive to its agents busting shuttles headed for Mexico. "They're boosting [the Border Patrol's apprehension] numbers," Johnson contends, "by arresting the people going southbound."
One final oddity of the Yuma court: During Streamline hearings, a Border Patrol agent plays the part of prosecutor instead of an assistant U.S. Attorney, as in Tucson. Quillin confirms that this person is not a Border Patrol lawyer, simply an agent.
The official line is that this is allowed because the agent isn't acting as an advocate, but is simply relaying information about the defendant's criminal or removal history.
Still, Criminal Law Professor Erin Murphy of New York University's School of Law finds this troubling, as she does many aspects of Operation Streamline. "I think there are real questions of prosecutorial independence when...the police become the prosecutors."
Streamline's detractors, including Murphy, point to a number of other legal shortcuts that raise red flags about the constitutionality of the program.
Most troubling are the hearings themselves, which compress the process of meeting a lawyer, having an initial appearance before a judge, pleading guilty and being sentenced, all in less than a day.
Critics also charge that these en masse proceedings violate defendants' due process, a fundamental constitutional right to a fair hearing that the U.S. Supreme Court has held covers "all persons within the United States," regardless of immigration status. Though no court has yet to rule on whether Streamline defendants are denied due process, in 2009, the Ninth U.S. Circuit Court of Appeals found in U.S. vs. Roblero-Solis that Streamline hearings violated Rule 11 of the Federal Rules of Criminal Procedure, which states that judges "must address the defendant in open court" and determine whether the defendant's guilty plea and waiver of rights is voluntary.
The Ninth Circuit clearly frowned upon magistrates taking pleas en masse: "To be specific," Judge John Noonan wrote, "no judge, however alert, could tell whether every single person in a group of 47 or 50 affirmatively answered their questions."
And yet, en masse hearings continue. And though magistrates now take pleas individually, some judges are still questioning large groups of defendants collectively.
Erwin Chemerinsky, a constitutional scholar and dean of the University of California-Irvine School of Law, was shocked when the operation of Judge Velasco's court was described to him. "Seventy individuals in 40 minutes is about 30 seconds per," Chemerinsky says. "I am skeptical that you can, in 30 seconds, give someone a meaningful hearing."
District of Arizona Chief Judge John Roll, however, defends the way Streamline cases are handled in the state. "If I thought that due process suffered," he insists, "I certainly would oppose it. But I don't think that is the situation." He points out that defendants in Streamline have waived their rights to an individualized hearing and to a trial. "Most of the individuals prefer [Streamline]," he says, "because it means they're going to have their cases resolved speedily."
Therein lies the rub, insist Streamline opponents. Due process requires that defendants knowingly and willingly waive their rights. But with Streamline, defendants have little choice. Demanding a trial would mean a month or more in custody awaiting a trial date, far more time than a day or two many receive for time served. It's no wonder, then, that 99 percent of all Streamline defendants plead guilty. Individualized plea hearings or actual trials are rarities.
Roll's rationale for the program doesn't impress Professor Murphy.
"It strikes me as sad," she says, "that the defense of a system that cannot afford to give every person the justice they're entitled is that, 'Well, at least this is faster.'"
Actually, the Border Patrol would like to double or triple the number of Streamline defendants—this, even in the face of federal public defenders who express doubts that Streamline clients get the representation they need.
PD Juan Rocha has worked in both the Yuma and the Tucson courthouses on Streamline cases, and he says that, particularly in Tucson's factory-like churn, he feels helpless to assist Streamline defendants. "In Tucson, you're basically shepherding people to prison or to deportation proceedings," he says. "Because you're not really doing much for them."
Assistant Supervisory Federal Public Defender William Fry in Del Rio, explains that because his lawyers get to interview their clients only the day before they go before the judge, there's little time to research the prosecution's charges or to suss out possible citizenship claims. "We have to take at face value what the government says it's got on this guy when we make our decisions," he says. "And we only have a day to do it in."
Tucson and Yuma defense attorneys have even less time, meeting Streamline clients the morning of their hearings. In Tucson, lawyers can consult with their clients one-on-one. In Yuma, where one federal public defender takes the load for the day, an attorney is forced to address defendants in groups of six or more.
Rocha says he knows of several cases in Yuma in which the Border Patrol had, at one point, U.S. citizens in custody, ready to be presented to the judge.
Once someone is identified as a citizen, the charges can be dismissed. But determining citizenship can be complex. In fact, defendants may not be aware they have a citizenship claim. Also lawyers may not have enough time to discern that their client is actually a juvenile or incompetent to stand trial. Cases where clients speak indigenous languages such as Mixtec or Olmec, rather than Spanish or English, are supposed to be dismissed by the prosecutor, according to an understanding between U.S. Attorneys and defense counsel in Streamline.
Heather Williams, a supervisor in the Tucson Federal Public Defender's Office and one of Streamline's most outspoken critics, says that because of the language gap, her office sometimes learns afterward that a client had no idea what was going on during a Streamline hearing.
Williams decries what she sees as the inhumanity of Streamline's conveyor-belt approach to justice. "They are truly being treated like cattle sometimes," she says.
The U.S. Marshals Service counters that all defendants in the Tucson court, Streamline and non-Streamline, are restrained, citing crowding issues for the court, which operates at capacity. Yet the sight of 70 Latinos—whose main crime is wanting to come to this country to work—shuffling about in restraints befitting serial killers leaves a lasting impression.
Williams recalls more disturbing scenes: Steamline cases in which defendants had been in rollover accidents before they were apprehended. Some were paralyzed, but arrangements were made for them to have their initial appearances while in their hospital beds, she says. "We've actually had instances where Border Patrol has shot somebody and the person has been brought into court a day or so later, fresh from the hospital, having had surgery and having been totally out of it."
There are also concerns about clients having TB, MRSA, bacterial meningitis, and H1N1. But because they are in custody for such short periods, they often cannot be isolated or diagnosed. Williams says her office sometimes learns that the courtroom may have been exposed to disease after the fact.
More worrisome for constitutional sticklers such as Murphy is that by condoning mass hearings such as Streamline, the criminal justice system is creating a dangerous precedent. "There's the canary-in-the-coal-mine scenario," Murphy says. "The line between immigrants and citizens is much more porous, especially when it comes to the criminal justice system, than most people would expect."
Beyond the constitutional and humanitarian concerns remains the question of Streamline's cost and inefficiency. The program itself does not have a budget. Instead, it pulls from the resources of various involved agencies—U.S. Attorneys, Marshals, and Federal Public Defenders offices, Border Patrol and the federal judiciary.
Putting a price tag on Streamline is difficult, so difficult that Congress is reportedly spending $1 million on a study to determine its overall costs.
However, there are estimates of certain specific costs associated with Streamline in Tucson.
In a report published by the University of California-Berkeley Law School's Warren Institute on Race and Diversity, titled Assembly-Line Justice: A Review of Operation Streamline, researcher Joanna Lydgate estimated that it costs DHS $52.5 million per year to detain Streamline defendants in Tucson, at a rate of $100 per person per day.
Congressional staffers asked Lydgate to estimate the cost of fully funding Streamline in Tucson, if the program were to be zero-tolerance and hit every border crosser apprehended with a criminal charge. She and other Warren Institute researchers suggested that zero-tolerance in Tucson alone could cost $1 billion a year.
In August, President Obama signed a $600 million supplemental border-security package, from which many of the stakeholders in Streamline received a chunk, including $254 million for Customs and Border Protection and $196 million for the Department of Justice.
Presumably, some of this additional money would assist in the prosecution of Streamline cases. But when Republican U.S. Senator John McCain sought an additional $200 million for Streamline during Senate debate over the bill, New York Democrat Charles Schumer shot it down.
"Operation Streamline is, first, expensive," Schumer told his colleague. "And if you're going to immediately incarcerate everyone who's apprehended at the border, you pay for their healthcare, you pay for their food. It's over $100 a day [per person to jail them]."
Nevertheless, McCain and Arizona junior Senator Jon Kyl have made fully funding Streamline part of their 10-point "Border Security Action Program." Both Senators claim that they believe Streamline works and want to give the program the resources it needs. Yet there is little evidence, other than Border Patrol claims, that Operation Streamline is a deterrent. For instance, Border Patrol numbers have shown a 75 percent decline in apprehensions in the Del Rio sector since Streamline began there in 2005. But from 2000 through 2004—before Streamline was in place—apprehensions in the Del Rio sector declined by 65 percent.
Lydgate's study also noted that large fluctuations in Border Patrol apprehensions preceded Streamline's implementation. And she attributes the more recent decline between 2005 to 2008 to more powerful factors including the economic downturn. Her study, for instance, offers a chart indicating that "border apprehensions have largely [mirrored fluctuations in] the U.S. job market since 1991."
Lydgate contends Streamline is a drain on resources that could otherwise be used to fight more serious criminal activity. A supplemental study by Lydgate analyzed border enforcement in the U.S. Attorney's Office for the Southern District of California. That office does not participate in Operation Streamline and does not prosecute first-time border crossers, instead focusing on "crossers it believes are most likely to cause violence." The Southern District ranks "first nationwide in per capita prosecutions of alien smuggling...and importing controlled substances," according to Lydgate.
Border Patrol claims a low 12 percent recidivism rate for Streamline. But critics disagree, saying that a realistic recidivism rate cannot be determined when the Border Patrol cannot estimate how many migrants elude capture. "From the perspective of defense attorneys," Lydgate says, "they do see people who come back again. There's no doubt that that happens."
And there's substantial evidence that Streamline has overtaxed the criminal justice system. Judge Roll, for instance, says the Tucson court is basically running at capacity and doesn't have the space to increase even to the 100 cases a day the Border Patrol would like to see.
"We have absolutely no free space in the courthouse in Tucson," Roll says. "All courtrooms are fully utilized."
Streamline's strain is felt beyond Arizona. Lydgate asserts that prosecutions of "petty immigration-related offenses" have skyrocketed 330 percent in border courts from 2002 to 2008. She quotes a 2008 report from the Administrative Office of the U.S. Courts as stating: "There are simply not enough jail beds, holding cells, courtrooms, and related court facilities along the border to handle all the cases that the government would like to prosecute under [Operation Streamline]."
In 2008 testimony before a U.S. House subcommittee, federal public defender supervisor Williams summed up Operation Streamline in words that still ring true. "Operation Streamline," she said, "may well be one of the least successful, but most costly and time-consuming ways of discouraging [illegal] entries and reentries."
If Williams is correct, why does the Obama administration continue to back this pricey policy lemon?
Perhaps there are simply too many who profit from Streamline.
Certainly, the Border Patrol benefits: Its increasingly bloated budget is nearly $3.6 billion for fiscal year 2010, with more than 20,000 agents nationwide.
In addition, the $600 million supplemental border-security package recently signed by President Obama will add 1,000 Border Patrol agents and 500 customs officers to the southwest border. They will be assisted by the 1,200 National Guard troops deployed by the Obama administration to the region.
Also, private prisons profit off the creation of newly minted "criminal aliens," with the U.S. Marshal for Arizona alone now shelling out $13 million a month—potentially $156 million a year—to Corrections Corporation of America to hold federal prisoners.
It's not just the "prison industrial complex" (as some immigrant-rights activists refer to it) that benefits. It's the economies of the cities where Streamline is active.
"It's a job stimulus," Judge Velasco says. "It's tremendous employment for law enforcement, lawyers, marshals and private citizens running private prisons. These policies generate a lot of money. There's a lot of people living well on the war on drugs and aliens."
There's also another calculus to bear in mind: the human suffering of otherwise ordinary people labeled and processed as common criminals.
"This is the least-known part of the militarization of the border," says legal defender Isabel Garcia of Pima County, Arizona, a pro-immigrant firebrand well known from her appearances on CNN and elsewhere.
"Somebody's making money," she adds. "That's what I believe this is all about. But, secondly, right with it, is to criminalize people. Criminalize in the real sense of the word...When you criminalize it with a case, [immigrants] will not be able to come back to the U.S. [legally]." (See "When Streamline Deters," page 17.)
That criminalization is brought full-circle when deportees are dropped off at ports of entry between the U.S. and Mexico, making their way to a network of social service agencies in border towns like Nogales where they can get fed, find a place to stay and catch a cheap bus back to their hometowns.
Spouses caught together on the U.S. side are often separated during the Streamline process. At the Grupos Beta aid station in Nogales, husbands look for their wives, wives seek their husbands.
Their search may be made more difficult because many immigrants do not get their possessions back from Border Patrol, which upon arrest confiscates personal property including cash, vital identification, cell phones, contact numbers and addresses of loved ones.
Some deportees are dropped off at ports of entry far from where they crossed, even in different states, such as California. And the Border Patrol has partnered in the past with other federal agencies to repatriate some migrants by flying them by the planeload to Mexico City, far from the border. That program reportedly costs the United States $15 million a year.
On one hot Saturday afternoon at the Grupos Beta station, a slight young man on the verge of tears came forward to tell his Streamline experience.
The man had been crossing with his wife, five months pregnant, when they were both arrested by the Border Patrol. They'd been heading for Salinas, where they'd hoped to find work in the fields.
He saw her after their capture, but they were separated when he went to court before Judge Velasco, who gave him time served after he pleaded guilty to illegal entry. He had no idea where his wife was, whether she was safe.
After court, the man asked Border Patrol agents present what happened to his wife. All they would tell him was that she already had left.
He has a photo of his wife, a pretty woman with indigenous features. No one at Grupos Beta had seen her yet. He said they're both from Oaxaca. He seemed utterly helpless, distraught.
Complicating matters was the fact his wife gave Border Patrol a different name. A human-rights group later attempted to locate her, with no luck. Like many immigrants who get streamlined, husband and wife have few resources to help them reunite, and are, at least for now, lost to each other.