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Operation Streamline Earl Warren Institute on Race, Ethnicity & Diversity by Joanna Lydgate*

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Operation Streamline Earl Warren Institute on Race, Ethnicity & Diversity by Joanna Lydgate* Policy Brief | January 2010 BerkeleyLaw Assembly-line Justice: UNIVERSITY OF CALIFORNIA The Chief Justice A REview of Operation StreamlinE Earl Warren Institute on Race, Ethnicity & Diversity by Joanna Lydgate* Berkeley Law Center for Research and Administration 2850 Telegraph Avenue Suite 500 executive Summary Border Patrol agents voluntarily returned Berkeley, CA 94705 first-time border crossers to their home coun- The current administration is committed to Phone: (510) 642-8568 tries or detained them and formally removed Fax: (510) 643-7095 combating the drug and weapon trafficking them from the United States through the and human smuggling at the root of violence www.warreninstitute.org civil immigration system. The U.S. Attorney’s along the U.S.-Mexico border.1 But a Bush-era Office reserved criminal prosecution for immigration enforcement program called migrants with criminal records and for those Operation Streamline threatens to undermine About the who made repeated attempts to cross the warren institute that effort. Operation Streamline requires the border. Operation Streamline removed that The Chief Justice Earl federal criminal prosecution and imprison- prosecutorial discretion, requiring the crimi- Warren Institute on Race, ment of all unlawful border crossers. The nal prosecution of all undocumented border Ethnicity & Diversity program, which mainly targets migrant work- is a multidisciplinary, crossers, regardless of their history. ers with no criminal history, has caused collaborative venture to Operation Streamline has generated produce research, skyrocketing caseloads in many federal district unprecedented caseloads in eight of the research-based policy courts along the border. This Warren Institute prescriptions, and eleven federal district courts along the bor- study demonstrates that Operation Streamline curricular innovation der, straining the resources of judges, U.S. on issues of racial and diverts crucial law enforcement resources away attorneys, defense attorneys, U.S. Marshals, ethnic justice in California from fighting violent crime along the border, and the nation. and court personnel. The program’s volumi- fails to effectively reduce undocumented immi- nous prosecutions have forced many courts For more information, gration, and violates the U.S. Constitution. please contact: to cut procedural corners. Magistrate judges The Department of Homeland Security Ana Djordjevich conduct en masse hearings, during which as Development & (DHS) began implementing Operation many as 80 defendants plead guilty at a time, Communications Officer Streamline along the U.S.-Mexico border in depriving migrants of due process. Indeed, (510) 642-4102 2005. The program has fundamentally trans- in December 2009, the U.S. Court of Appeals formed DHS’s border enforcement practices. for the Ninth Circuit held that Operation Before Operation Streamline began, DHS * The Warren Institute acknowledges the generous support Across Southwest Border (June 5, 2009), available at ht t p :// of the Evelyn and Walter Haas, Jr. Fund, which has made this www.dhs.gov/ynews/releases/pr_1244217118076.shtm; research possible. Joanna Lydgate is a William K. Coblentz EXECUTIVE OFFICE OF THE PRESIDENT OF THE UNITED Civil Rights Fellow with the Warren Institute and will gradu- STATES, OFFICE OF NATIONAL DRUG CONTROL POLICY, ate from UC Berkeley School of Law in 2010. She obtained NATIONAL SOUTHWEST BORDER COUNTERNARCOTICS her BA from Yale University in 2003. STRATEGY (June 2009), available at http://www.whitehouse 1. See, e.g., P r e s s R e l e a s e , U. S . D e p a r t m e nt o f H o m e l a n d S e c u - drugpolicy.gov/publications/swb_counternarcotics_strategy09/ rity, Obama Administration Announces National Strategy to swb_counternarcotics_strategy09.pdf. Reduce Drug Trafficking and Flow of Bulk Cash and Weapons Assembly-line Justice: A Review of operation stReAmline | Januar y 2 010 1 Streamline’s en masse plea hearings in figuRe 1 | operation streamline’s effect: petty immigration 2 Tucson, Arizona violate federal law. prosecutions vs. felony Alien smuggling prosecutions in the border By focusing court and law enforce- District courts ment resources on the prosecution of first-time entrants, Operation Streamline also diverts attention away from fighting drug smuggling, human trafficking, and other crimes that create border violence. To examine Operation Streamline’s effects, the Warren Institute observed Operation Streamline court proceed- ings and conducted interviews with judges, U.S. attorneys, defense attor- neys, Border Patrol representatives, and immigration lawyers in four bor- der cities in Texas, New Mexico, and Arizona. This report outlines the Warren Institute’s findings. It con- cludes that Operation Streamline is to prosecute serious crimes along the quadruple. Criminal prosecutions of not an effective means of improving border. If the administration seeks petty immigration-related offenses3 border security or reducing undocu- to punish first-time border crossers, increased by more than 330% in the mented immigration. Furthermore, it need look no further than the civil border district courts, from 12,411 Operation Streamline has unaccept- immigration system. cases4 to 53,697.5 Those caseloads able consequences for the agencies continue to rise.6 During the same tasked with implementing the pro- Background six-year period, felony alien smuggling gram, for the migrants it targets, and Between 2002 and 2008, federal prosecutions in the border courts rose for the rule of law in this country. 7 magistrate judges along the U.S.- at a comparatively sluggish rate, and The administration should there- Mexico border saw their misdemeanor drug prosecutions steadily declined fore eliminate Operation Streamline 8 immigration caseloads more than (see Figure 1). and restore U.S. attorneys’ discretion 2. United States v. Roblero-Solis, 588 F.3d 692 (9th Cir. 2009). See, e.g., Spencer S. Hsu, Immigration Prosecutions Hit New High, WASHINGTON POST, June 2, 2008. 3. Petty offenses are misdemeanors with a maximum sentence of six months. Petty immigration-related offenses are almost exclusively prosecutions under 6. See TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE, IMMIGRATION 8 U.S.C. § 1325 for first-time unlawful entry into the United States. PROSECUTIONS FOR MARCH 2009 (2009), available at http://trac.syr.edu/ tracreports/bulletins/immigration/monthlymar09/fil. 4. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, 2002 ANNU- AL REPORT OF THE DIRECTOR: JUDICIAL BUSINESS OF THE UNITED STATES 7. Drug prosecutions in the federal district courts along the border decreased COURTS Supplemental Table M-2: Petty Offense Defendants Disposed of from 6430 cases commenced in 2002 to 4966 cases commenced in 2008. See by U.S. Magistrate Judges, by Major Offense (2003), available at http://www. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, 2002-2008 ANNU- uscourts.gov/judbus2002/appendices/m02sep02.pdf. The federal districts AL REPORTS OF THE DIRECTOR: JUDICIAL BUSINESS OF THE UNITED STATES along the U.S-Mexico border are: the Southern District of California, the Dis- COURTS Supplemental Table D-3: Cases Commenced, by Major Offense trict of Arizona, the District of New Mexico, the Western District of Texas, and and District. the Southern District of Texas. 8. Data obtained from TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE 5. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, 2008 ANNU- using “TRAC Express” tool, searching by lead charge 8 U.S.C. § 1324 for the AL REPORT OF THE DIRECTOR: JUDICIAL BUSINESS OF THE UNITED STATES time period 2002 to 2008 for each border district, then adding the results to- COURTS Supplemental Table M-2: Petty Offense Defendants Disposed of gether (data on file with author). Alien smuggling prosecutions under 8 U.S.C. by U.S. Magistrate Judges, by Major Offense (2009), available at http://www. § 1324 in the border district courts went from 2208 cases in 2002 to 3900 cases uscourts.gov/judbus2008/appendices/M02Sep08.pdf. Some of this increase in 2008. Id. in prosecutions may be due to improved reporting by the U.S. Attorney’s Office. 2 January 2010 | Assembly-line Justice: A Review of operation stReAmline Assembly-line Justice: A Review of operation stReAmline | Januar y 2 010 Skyrocketing petty immigration prosecutions would seem to suggest a figuReSan 2 Diego | federal Judicial Districts Along the u.s.-mexico border cA-s recent surge of migrants attempting to cross the U.S.-Mexico border, but there San cA-s Diego AZ has been no such surge. The Border Yuma El Centro nm Patrol reports that its apprehensions have been declining since 2005.9 Rather, Tucson Las Cruces the immigration caseload in the border El Paso courts is largely the result of a set of tX-w zero-tolerance immigration enforce- ment programs. The first program Alpine began in Del Rio, Texas, in 2005, Del Rio and DHS has since implemented southern District of california (courts in San Diego and El Centro) Border Patrol Sectors: San Diego, El Centro Laredo similar programs in: Yuma, Arizona; tX-s Tucson, Arizona; Las Cruces, New District of Arizona (courts in Tucson and Yuma) Border Patrol Sectors: Yuma, Tucson Mexico; El Paso, Texas; Laredo, McAllen District of new mexico (court in Las Cruces) Brownsville Texas; McAllen, Texas; and Border Patrol Sector: El Paso Brownsville, Texas.10 Though these western District of texas (courts in El Paso, Alpine, and Del Rio) zero-tolerance programs have various Border Patrol Sectors: El Paso, Marfa, Del Rio names, they are often referred to in the southern District of texas (courts in Laredo, McAllen, and Brownsville) aggregate as “Operation Streamline.” Border Patrol Sectors: Laredo, Rio Grande Valley And though they take slightly — Operation Streamline Jurisdiction different forms, they share the same mandate: the criminal prosecution of all undocumented border crossers, of work or to reunite with family in reenter can be charged with felony even first-time entrants.11 the United States. First-time offenders reentry under 8 U.S.C. § 1326, which Most Operation Streamline defen- are prosecuted for misdemeanor ille- generally carries a two-year maximum dants are migrants from Mexico or gal entry under 8 U.S.C.
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