It was May last year when then-U.S. Attorney General Jeff Sessions came to the border wall in San Diego to announce the Department of Justice’s new zero-tolerance policy.
“If you cross the border unlawfully, then we will prosecute you. It’s that simple,” Sessions said at a podium, overlooking the border wall.
Previously, the U.S. Attorney’s Office had not made much of a priority of prosecuting misdemeanor illegal entry, instead, focusing their attention on the border on felonies like human smuggling and drug trafficking.
By the time of Sessions' announcement, however, prosecutions for illegal entry had already begun to climb in the Southern District of California, overwhelming the courts and nearby federal jails with people who had previously been quickly turned over to the custody of Immigration and Customs Enforcement.
It was then that the chief judge in the district finally allowed for the creation of Operation Streamline, a fast-track prosecution program that aims to arraign, convict, and sentence border crossers in a matter of minutes.
So starting last July, people caught illegally crossing the border were brought to a converted garage beneath the federal building to meet with their attorneys, before being brought to a courtroom to plead guilty en masse to misdemeanor illegal entry. At first, prosecutors were charging more than 50 people a day.
But last month, the Ninth Circuit Court of Appeals ruled that almost all of the prosecutions during the first year of the program were improper. Prosecutors, the court found, had charged individuals under the wrong statute.
“You can see if you read the decision, you can see the pain and you can feel the pain of the judge saying, look, I sympathize with the prosecutors. I sympathize with what they’re up against and what they’re being asked to do,” said Chuck La Bella, a former U.S. Attorney in the district who’s now in private practice. “But you’ve got to fly right. Just because we want to shove these people through the system … we don’t cut corners in the criminal justice system. You just don’t do that.”
The mistake that prosecutors had made, according to the Ninth Circuit, was that they charged misdemeanor illegal entry under a subsection meant to only apply to people who evade inspection at ports of entry, not between them.
The vast majority of people caught crossing the border do so by hopping over a border fence or crossing through the desert, not by running past customs officers inside a port of entry.
The Federal Defenders of San Diego had appealed the case on behalf of their client, Oracio Corrales-Vazquez, a Mexican citizen who crossed the border in June 2018 during the first few months of Trump's zero-tolerance policy.
During oral arguments at the Ninth Circuit in June 2019, the assistant U.S. Attorney defended the decision, arguing that the subsection applied also to people who crossed the border outside of a port of entry. A majority of the judges disagreed.
The U.S. Attorney’s Office did not respond to repeated requests for comment for this story.
A source close to the office told KPBS that the decision to charge under the wrong law was made by prosecutors concerned about individuals presenting a defense under the “official restraint” doctrine, which is derived from a series of rulings in the Ninth Circuit Court of Appeals.
The doctrine dictates that if a Border Patrol agent or Customs official continuously observes a person crossing the border for the duration of the crossing until they are arrested, they cannot be found guilty of crossing the border illegally.
In fact, many asylum-seekers along the border are often trying to get caught, and many cross in full view of border patrol agents. Proving that a border crosser wasn’t being watched generally requires border patrol agents and other officials to testify, slowing down the gears of the system. So they charged under a section of the law that didn't require that.
“What they’re trying to do is charge it in a way that doesn’t really fit the crime, for the sole purpose of depriving individuals a defense that’s allowed them under the law,” said Reuben Camper Cahn, the Executive Director of the Federal Defenders of San Diego until shortly after Operation Streamline was installed in the district last summer.
“If there’s anything that would be more exemplary of a denial of due process than denying somebody a substantive defense that the law allows you, I can’t think of it.”
Carol Lam, another former U.S. Attorney for the Southern District of California, said this type of decision is common for prosecutors, who seek to undermine certain defenses which might slow the process down when making a charging decision.
“Of course, when you’re dealing with any high-volume type of crime, of course, border crime, immigration and narcotics, smuggling cases are, if you’re a southwest border district. That’s going to be a high-volume type of prosecution,” Lam told KPBS.
“And what you look for is the most efficient way to do as much as possible. So yes, there’s not a lot of different options, but maybe two-to-three options. And you want to do things as efficiently as possible for the ICE agents for the Border Patrol agents, so they can not only do more cases but do more sophisticated cases.”
In the past year, more than 4,000 people were charged improperly according to the Ninth Circuit’s decision. Last week in court, prosecutors charged migrants under the subsection that applies to people crossing outside of the ports of entry, and which falls under the “official restraint” doctrine.
Federal public defenders are now challenging those prosecutions as well.
For the more than 400 people convicted under the wrong subsection who are now appealing their cases, the charges can most likely be quickly dropped after a request by their lawyer. The thousands who have not appealed their cases, and have since been deported, won’t likely be able to challenge their convictions until and if they’re caught crossing the border again.
Today, Operation Streamline has slowed down considerably and operates at nowhere near the prosecution rates once envisioned by former Attorney General Jeff Sessions.
But the impact that these decisions from both officials Washington and prosecutors in San Diego will leave a mark on the US Attorney’s office, La Bella said.
“It’s a blemish on law enforcement when a court of appeals reverses saying you’re using the wrong statute,” he said. "and you’re using the wrong statue because it’s easier instead of saying it’s the right statute. Yeah, it’s an embarrassment for law enforcement.
The U.S. Attorney’s office has until Sept. 6 to appeal the Ninth Circuit’s decision.
