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Attorneys Worry Streamlined Immigrant Prosecutions Could Lead To Problems

People seeking political asylum in the United States line up to be interviewed in Tijuana, Mexico, just across the U.S. border south of San Diego, Monday, June 4, 2018.
Associated Press
People seeking political asylum in the United States line up to be interviewed in Tijuana, Mexico, just across the U.S. border south of San Diego, Monday, June 4, 2018.
Attorneys Worry Streamlined Immigrant Prosecutions Could Lead To Problems
Attorneys Worry Streamlined Immigrant Prosecutions Could Lead To Problems GUESTS: Jean Guerrero, KPBS reporter

>>> Storm the Trump in ministrations zero tolerance policy is resulting in enormous pressures on the criminal justice system. To deal with the number of immigration cases facing prostitution, Operation Streamline is planning to fast track prosecutions by moving migrants through the system and groups. In many cases, children are being separated from parents and held in separate detentions -- detention facilities. Tell us about Operation Streamline. What is it? >> This was something that was introduced by border patrol in 2005 in Texas. It has been going on for a few years in Arizona and Texas. There you will see large group of people being arraigned and prosecuted in court, sometimes as many as 100 people in shackles. It entails prosecuting people in groups, as you said. It is new here because we have not seen anything like this since the 1990s when we saw a huge increase in people coming across the border. Will happen is within a day of their arrest at the border, the migrants will appear in courtrooms and have their hearings and everything will happen in a matter of hours, then being prosecuted in this case, for first-time illegal entry. >> How is that different from the way federal prosecutions have been working up until now? >> The focus before the Trump administration announced the zero tolerance policy toward illegal border crossings was on repeat offenders and smugglers. It was not on people who were caught crossing the border for the first time. Now, because of the crackdown, they are trying to prosecute every single person who crosses the border illegally. Another thing that is different is that in the southern district, for the fat -- past few decades, we saw cases processed individually. You would not see immigrants prosecuted in groups. >> What is happening to the children? >> If the parents get caught crossing illegally with children, they are being separated for the children for prosecution of the adults. What will happen to the children is they will be transferred to the office of refugee and resettlement. They will be kept in shelters, sometimes of the other side of the country and the office of refugee and resettlement will try to find them foster families. The difficulty is that sometimes this results in permanent separation of these families because if the adults who is being prosecuted and set being deported, the child may end up remaining in the United States' custody. >> Doesn't fast tracking system make it more difficult for attorneys and advocates to defend the people who cross illegally? >> The attorneys I have spoken with a these mass prosecutions raise concerns about the due process rights of the asylum -- asylum seekers. Many only speaks -- Spanish so need translators. They are concerned that the constitutional rights of these individuals are being violated but they are being processed in groups I sat it on a hearing where it was one individual and he was having a lot of back and forth with the judge. There was a lot of confusion about what he was being told and what was required. To arraign these cases in groups is going to create a lot more publication. I spoke with Jeremy Warren of Warren and Burstein. He is a criminal defense attorney. He talks about some additional concerns as well. >> Many of these people under the ministrations new policy have been separated from their children. Imagine trying to talk about a misdemeanor case with someone who just lost his or her 5-year-old kid? >> That would obviously be a huge distraction. >> It gets complicated because of these people are seeking asylum, in many cases, they will plead guilty to the misdemeanor cards as quickly as possible so they can be transferred over to immigration custody. I should mention that getting first time illegal entry into the United States is a misdemeanor is punishable by up to 6 months in prison. There is some question about whether leading guilty will hurt the assignment case. -- Asylum case. >> Why is this being brought to California now? There have been more illegal crossings in Texas and Arizona? >> We do not know why they want to bring it here. The Department of Justice and U.S. attorney have declined to comment. They are looking for practical solutions to the Trump administration's zero tolerance policy. Some people I spoke with do suspect that officials want to bring it here because California has become the front of the resistance to the Trump crackdown on immigration. The ministration may be looking for new ways to get the state in line with that strategy. As you mentioned, a legal -- illegal border cautions are relatively minimal compared to Texas and Arizona. >> The ferret -- figures Gary. We saw about 1500 people crossing into thousand 18 to the city of -- San Diego sector. That is the 42% increase from the year before. Officials have been highlighting the increase. That is not against without that last year the figures were at a record low. If you look at places like Texas, there are more than 15,000 illegal border crossings just through 1 sector. >> How will the federal courts cope with this? Won't they need more resources? >> That is right. The Department of Justice is sending new prosecutors to the southern district. They are sending 8 new prosecutors. And bubbly something is going to have to give because there are not new judges handling these cases. Some of the attorneys believe the ramped up prosecutions will wind up letting more serious criminals off the hook one was talking to be about how the southern district was responsible for a lot of serious fraud and cartel's -- cartel cases. They will have to do -- divert resources to people who are crossing illegally for the first time who are often people trying to find temporary work in the U.S. or asylum seekers fleeing violence in Central America. >> Thank you so much for filling is in, Jean. That is Jean Guerrero, KPBS border reporter.

Attorneys say a fast-track prosecution program called Operation Streamline is in the works for San Diego’s district courts to handle illegal border crossing cases in groups rather than individually.

Operation Streamline is supposed to help implement the Trump administration’s “zero tolerance” policy for illegal border crossings. That policy called for anyone who enters the U.S. illegally to be criminally prosecuted — even first-time offenders and asylum seekers.

First-time illegal entry is a federal misdemeanor that was rarely prosecuted over the past two decades along the border, with resources focused on more serious crimes. But in response to the zero-tolerance policy, the U.S. Attorney here is calling for 100 new such misdemeanor cases a week.

RELATED: Detention Centers Fill Up; 1K Border Detainees Sent To California Prison

Last month, the chief judge for the Southern District of Southern California created the Criminal Case Management Committee to address what he called “strains, issues and problems for the Court and its personnel” caused by these new demands.

Jeremy Warren is a criminal defense attorney who has been at meetings with the committee. He said Operation Streamline could hurt the due process rights of these immigrants, many of whom need translators and speak rare indigenous languages. Warren said streamlining their prosecutions could violate their constitutional rights.

"We are very concerned about their constitutional rights and we as the criminal defense community will do everything to make sure our clients' rights are honored," he said.

Warren said he thinks the new strategy of prosecuting all illegal border crossings is letting more serious criminals off the hook.

"In this district we do a lot of serious fraud cases. Cartel cases. All sorts of major investigations go on here. And resources are being diverted to prosecuting the guy who was coming here to pick tomatoes," he said. "We're not so sure that's the best use of resources."

RELATED: Undeterred By Trump, Asylum-Seekers Line Up At The Border

Operation Streamline was first introduced in 2005 under the Bush administration. It's in place in many other parts of the country, with as many as 100 people arraigned at a given time, sometimes in shackles. But plans to introduce it in San Diego would be a turning point for the region.

The Office of the U.S. Attorney here declined to comment on Operation Streamline, saying only that it’s looking for “practical solutions” to Trump’s zero tolerance policy. The Department of Justice declined to comment on Operation Streamline and instead called the southern district a “great partner” in the department’s goal of restoring the rule of law to the border.

Warren said the Trump administration has ramped up family separation for people who enter the U.S. illegally is adding to his concerns about the due process rights of his clients.

"Many of these people under the administration's new policy will have been separated from their children. So imagine trying to talk about a misdemeanor case with someone who just lost his or her five year old kid. Do you really think they're going to be in a position to talk about going back to Mexico when all they want to do is find out what happened to their child?"