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Operation Streamline and the Criminal Justice System T M O C . K C O T S BY JUAN ROCHA R E T T U H S © E G A P T N O R F Operation Streamline and the Criminal Justice System o reduce and deter illegal immigration , the being prosecuted for illegally entering the against the person charging him with illegal - United States Department of Homeland United States. ly entering the United States. 5 The following TSecurity (DHS) launched Operation Today, this policy—prosecuting everyone day, he, along with many others, is transport - Streamline. 1 Under this program, the federal regardless of criminal or immigration histo - ed to the federal courthouse for prosecution. government prosecutes a large number of ry—is crystallized in Operation Streamline. 3 In Yuma, Arizona, where I worked for people who illegally enter (or leave) the The U.S. Department of Homeland more than two years representing defendants United States, and imprisons them. But pros - Security first implemented Operation in a Streamline proceeding, the federal gov - ecuting mass numbers of people, every day, Streamline in Del Rio, Texas, in 2005. Later, ernment prosecuted as many as 40 people at cannot be done without taking shortcuts. due to an increase in illegal immigration, it the same time who were suspected of illegal - Though journalists and academicians expanded the program to Arizona. ly entering the United States. Though the have written articles about whether number of people presented for prosecution Operation Streamline is or is not good pub - varies, the court appoints one defense attor - lic policy, what follows is a description of the Representing Defendants Prosecuted ney to represent all 40 defendants, or what - actual Streamline process from the perspec - TUhned epr otcheess O bpeegirnast iwohn en the United States ever number of defendants the government tive of a defense attorney who has worked in Border Patrol arrests a person suspected of presents for prosecution that day. Yuma and Tucson, where the federal govern - illegally entering the United States. Because it would be practically impossible ment executes Streamline prosecutions. However, whether the person is under arrest for one attorney to speak with each defen - is of no moment; the agents may question dant individually, the attorney interviews the the person about his immigration status, and group of defendants at once, in a holding FBraocmk gapropruonxdim Taote Olyp tehrea 1t9io7n0 sS ttor ethaem 1l9in9e0s, these statements may be (and are) used to cell. 6 Accordingly, the United States Marshals the U.S Attorney’s office prosecuted people prosecute him because the questioning is take a group of four to six defendants to the for illegally entering the United States; how - near the border and related to a civil matter, cell, in turns, to talk with the attorney. Then, ever, it primarily prosecuted persons with not a criminal investigation. 4 After determin - like an elementary-school teacher, the attor - serious felony convictions. 2 People with no, ing the person has no status to remain in the ney takes roll of the persons in the room minimal or benign criminal history were, United States, he is taken to the Border before informing them of the charges. generally speaking, not prosecuted; instead, Patrol station for processing, where agents As is generally acknowledged, the attor - they were administratively removed from the fingerprint, photograph and question him ney–client privilege is perhaps the most United States. Gradually, this distinction dis - again about his immigration status. Based on sacred of all legally recognized privileges. As appeared, and by the 2000s, even people the information collected, the federal gov - the federal courts have noted, “Its preserva - with non-serious felony convictions were ernment prepares a criminal complaint tion is essential to the just and orderly oper - ation of our legal system.” 7 The privilege JUAN ROCHA is an Assistant Federal Public Defender in the District of Arizona. The views expressed in “requires that clients be free to ‘make full this article are his and do not reflect those of the Federal Public Defender office. disclosure to their attorneys of past wrong - 30 ARIZONA ATTORNEY NOVEMBER 2011 www.azbar.org/AZAttorney Operation Streamline and the Criminal Justice System doings.’” 8 However, under an Operation the Supreme Court has added another function. A court interpreter translates the Streamline proceeding, the attorney–client responsibility to defense counsel representing proceedings from English to Spanish. (If privilege becomes impotent. 9 The number non-citizen defendants. In 2010, the there is a defendant who speaks an Indian of defendants and the room dynamics create Supreme Court held that defense counsel dialect, the attorney must, because of logisti - a situation in which other defendants hear also must advise a non-citizen defendant of cal constraints, conduct the interview in the the conversation between the attorney and a the immigration consequences resulting from presence of the U.S. Marshals, and the defen - defendant. Information that passes may be a criminal conviction. 12 But a great majority dant(s) will have a separate hearing.) embarrassing and harmful to the defendant, of defense attorneys do not practice immigra - During the hearing, the magistrate judge but there is little the attorney can do to alter tion law. And as Justice Stevens acknowl - informs the defendants of the charges, this environment. edged, immigration law is “complex” and “a explains to them their constitutional rights, In Yuma the number of defendants pre - legal specialty of its own.” 13 He even conced - and asks if they are willing to waive those sented for prosecution never exceeds 40. But ed that, “Some members of the bar who rep - rights and plead guilty. After the defendants in Tucson, the federal government prose - resent clients facing criminal charges, in plead guilty, and the allocution occurs, the cutes approximately 70 defendants every either state or federal court or both, may not court imposes a jail sentence. 19 All this is day. Unlike in Yuma, in Tucson, an attorney be well versed in it.” 14 But, for example, accomplished in approximately two hours. will never be assigned to represent more there are situations when the immigration The process is repeated the next day. than seven defendants at once. But as in judge failed to advise the defendant of possi - In Tucson, where the government is rep - Yuma, Tucson defense attorneys only have ble discretionary relief; under Operation resented by an actual lawyer, the process is the morning to meet and advise their clients. Streamline, investigating this issue could take even more streamlined—everything is prede - The defense attorney meets with his clients several days, if not weeks—assuming of termined. In addition to the one hearing, in a large courtroom known as the “special course the defense attorney is even aware of there is a standard plea agreement; the sen - proceedings room.” He commandeers a this immigration issue—and it could reduce tence is fixed; and there is no allocution. So table and interviews one client at a time. the criminal charges against him. 15 even if defense counsel offered mitigating Despite this more individualized setting, the Even though the Supreme Court recog - arguments and the defendant addressed the attorney–client privilege is tenuous at best, nized the intricacies of immigration law, court, their comments would be meaning - because not only is the room employed by under these legal circumstances, defense less, because the sentence is decided in other defendants and their defense attor - attorneys representing defendants in advance by the prosecutor. neys, all of whom sit nearby, but the room is Operation Streamline must possess knowl - also occupied by Border Patrol and U.S. edge of a field of law outside their practice Marshal Agents. There have been times, in area. They must adequately advise their Federal Case Law Concerning fact, when the prosecuting attorney has sat at client–defendants of the immigration conse - Tthhee ONpinetrha tCioirn cuit has tackled issues arising an adjacent table while the defense attorney quences of their criminal conviction, or from Operation Streamline. In United States spoke to his client. determine whether the defendant’s prior v. Roblero-Solis ,20 for example, the Ninth Though non-citizen clients have a constitu - immigration removal violated due process— Circuit held that the court’s questioning of tional and statutory right to an interpreter dur - all in a matter of hours. 16 defendants en masse violated Federal Rules of ing a court hearing, no such right exists Criminal Procedure Rule 11’s prescription between the defendant and his attorney unless that the court address the defendant person - the language barrier impairs their ability to DTheefe Snster ecaomunlisneel mCouustr tc Homeaprleinteg the inter - ally. 21 Despite this infirmity, the Ninth Circuit communicate. Because all the attorneys view-advisement before noon. The actual affirmed the defendants’ convictions because defending clients in a Streamline proceeding Streamline hearing begins at 1:30 p.m. It is it found that the defendants had failed to speak Spanish, no court interpreter is provid - actually many things: the defendants’ initial demonstrate that Rule 11 deficiencies ed. 10 Accordingly, the responsibility of translat - appearance hearing, their detention hearing, amounted to plain error. ing the criminal complaint from English to their change of plea hearing, and their sen - In United States v. Escamilla-Rojas ,22 the Spanish falls to the attorney; as a result, each tencing hearing. 17 The defendants are Ninth Circuit, again deciding whether Rule defendant receives a different translation of the brought into the courtroom handcuffed, 11 had been violated, held that “a collective criminal charges levied against him, even wearing feet shackles, and still wearing the advisement followed by individual question - though they are all charged with the same same clothes in which they were arrested.
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