Border Patrol Program Raises Due Process Concerns
Monday, September 13, 2010
Operation Streamline is an initiative that takes immigrants caught entering the United States illegally and pushes them through the federal courts at unheard of speeds. They are often arraigned, counseled, plead and convicted in a matter of hours.
These illegal immigrants are coming for jobs or to reunite with family — and have no other criminal background. Immigrants in these circumstances used to be returned voluntarily or they went through the normal administrative deportation process. Now, they leave as convicted federal criminals.
The government says Operation Streamline is a success — it's a deterrent and a needed change from a "catch and release" policy. But its measures of success don't always hold up. And no one can tell how much it costs.
Operation In Action
Las Cruces, N.M., is one of the eight court districts along the border that has implemented Operation Streamline or similar programs since 2005.
On one recent typical day, Federal Magistrate Judge Karen Molzen's courtroom in Las Cruces was packed with 45 defendants. And she has to figure out how to fit them in the courtroom, suggesting the jury box as possible space.
Throughout the two-hour proceeding, men and women caught crossing the border illegally shuffle into the seats, wearing handcuffs and leg shackles. And the same clothes they've had on since they were caught.
The defendants have earphones so they can hear a court interpreter repeat the judge's words in Spanish.
Molzen tells them, "The charge you will be pleading guilty to alleges that you illegally entered the United States at a place not designated for immigration purposes."
The charge is a misdemeanor. The maximum penalty is a fine and six months in prison. In groups of five to seven, Molzen asks the defendants a series of questions, including: Have you been told your rights? Have you had enough time to talk with your lawyer? Is anyone pressuring you?
Then, she asks them how they plead.
The defendants all plead in Spanish: "Culpable." "Guilty."
If anyone wanted to fight the charge, they'd spend at least a month in jail waiting for a trial. Molzen sentences the defendants to time already served — six to ten days from when they were caught. Everyone now has a criminal record. And the judge gives them a stern warning that they face a longer sentence if they're caught again.
She does recommend that two people not be deported because they have family in the United States legally. She tells the rest: "You will be deported from the United States and with that deportation and this criminal conviction it will be difficult or impossible for you to enter the United States lawfully in the future."
This daily, systematic mass sentencing under Operation Streamline is unlike anything in U.S. judicial history.
Expansion Brings New Questions
The program began in Del Rio, Texas, in 2005.
At that time, Deputy Chief Patrol Agent Dean Sinclair says, agents were overwhelmed catching and processing illegal crossers, then returning them to Mexico. The sector chief thought that convicting the immigrants of a crime would make them think twice about trying to cross again.
"So Operation Streamline was developed..using existing laws, policies, and procedures — to put a deterrence effect into the mindset of the economic aliens coming across hoping to deter those crossings," Sinclair says.
The Border Patrol labeled Operation Streamline a success in Del Rio. So it expanded to Arizona, New Mexico and other places in Texas. At least 130,000 people have been convicted of illegal entry since it began.
But, there are serious questions about defendants' rights. Do they get adequate legal representation? At first, in Del Rio, lawyers were paid by the case. So, some took as many cases as they could. Lawyer Jacques De La Mota says at one point, he handled up to 140 cases in three days.
"In the beginning, in 2005 when this program started, I had mixed feelings as to the system and the process and were we putting people on a conveyor belt, so to speak," he says.
The court in Del Rio was ordered to stop and to start paying defense attorneys by the hour. De La Mota now gives his clients basic information in a group — then he meets separately with each one. Still, in five years, he says no one has gone to trial.
When Operation Streamline expanded up to 70 people a day in Tucson, it pushed the boundaries again. Defendants stood before the magistrate and pleaded together, saying "guilty" at the same time. Last December, the Ninth Circuit Court of Appeals said that violates the rules of criminal procedure. The court in Tucson slowed down and cleaned up the process. But lawsuits are still pending.
Heather Williams, an assistant federal public defender in Tucson, thinks Operation Streamline still violates defendants' rights. Imagine, she says, if the tables were turned.
"What if your sister was in custody in France, or in Uganda, or in Thailand, and was treated and was shuffled through a process all in one day where they could be facing up to six months in prison, the way that people in Mexico and Central America are being shepherded through in this. The United States government would be absolutely outraged, and they'd be right in being outraged," Williams says.
Alia Ludlum, a former prosecutor, is the presiding judge in Del Rio. She says the process works well now. She doesn't buy complaints that defendants are getting hustled through the system.
"They have counsel. They're in court with counsel. We address them individually in court — as a group as well as individually. They have time to elocute to the court. They have a copy of their charges. They have a copy of their discovery. I'm not real sure what due process rights we keep supposedly violating," Ludlum says.
NPR was not granted access to defendants while they were in custody. But prisoners from Tucson are released across the border in Nogales, Sonora, and often find their way to charities that feed and house them.
Filiberto Robledo-Aguilar was among a group deported to Nogales. He went to the Center for Attention to Deported Migrants for dinner. Robledo-Aguilar seemed to understand what happened to him in court.
"They did explain our rights to us," he says, "and if we wanted to waive our rights we could leave voluntarily. Or we could stay and fight and spend I don't know how long in jail."
But he was also confused. He said he didn't have a lawyer — though he must have. He said he doesn’t understand why last year, when he crossed into Texas, he was returned to Mexico without going to court.
Regardless, Robledo-Aguilar is not deterred by his conviction. He says he'll try to cross again.
"I'm not against the authorities or anything like that, but I need to work," he says.