The U.S.-Mexico border has historically served as the staging ground for some of the most visible and contentious strategies to stop people from illegally migrating to the United States. These include border blockade strategies; construction of an actual fence and attempts to create a "virtual" fence consisting of towers, cameras, and remote sensors; use of the National Guard to support the Border Patrol; and — the focus of this article — prosecution of persons apprehended trying to cross the border illegally.
The Department of Homeland Security (DHS), the agency charged with enforcing immigration laws and securing the country's borders, introduced "Operation Streamline" in 2005 along a five-mile high-traffic stretch of the Southwest border. The program has since expanded to include portions of five out of nine Southwest Border Patrol sectors.
"Operation Streamline" targets illegal border-crossers for criminal prosecution prior to placing them in civil removal (deportation) proceedings. The program's "zero tolerance" policy contrasts with traditional practices of placing unauthorized border-crossers in civil deportation proceedings and permitting many to depart the country voluntarily.
While federal prosecutions for immigration offenses had been on the rise prior to Operation Streamline, the program contributed to a steep jump in these numbers. According to Syracuse University's Transactional Records Access Clearinghouse (TRAC) — the primary source of the data used here — immigration prosecutions reached an all-time high of 91,899 in fiscal year (FY) 2009, with "illegal entry" and "illegal reentry" charges making up 92 percent of these prosecutions (the federal government's fiscal year runs from October 1 through September 30).
DHS has credited Operation Streamline with deterring people from illegally crossing the U.S.-Mexico border, pointing to decreased apprehension rates since the program began. However, policy analysts, judges, and federal defenders have criticized the program for monopolizing federal court and enforcement resources, and for preventing the prosecution of more serious offenses. The program does not have a discrete budget within DHS or the relevant court systems.
Yet recent government figures suggest that immigration enforcement agencies within DHS, namely Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), and federal prosecutors may be starting to prioritize more serious (albeit individual) immigration offenses, such as illegal reentry. Such a shift would be in line with the current administration's goal of targeting more egregious immigration offenses.
This article describes how Operation Streamline works, highlights trends in the prosecution of immigration offenses, and evaluates its outcomes. It then looks in which direction the program may be heading.
The Basics of Operation Streamline
DHS launched Operation Streamline in the Border Patrol's Del Rio, TX, sector in December 2005 and later expanded the program to include the Yuma, AZ (December 2006); Laredo, TX (November 2007); Tucson, AZ (January 2008); and Rio Grande Valley, TX (June 2008) sectors (see Map 1).
Under Operation Streamline, DHS designates target enforcement areas within a Border Patrol sector and refers virtually all apprehended unauthorized persons in these areas for prosecution. The agency makes exceptions for persons such as juveniles, parents traveling with minor children, persons with humanitarian concerns, and those with certain health conditions. Most immigration referrals come from CBP, the DHS agency that enforces immigration laws at and between official ports of entry, and from ICE, which enforces immigration laws in the country's interior and oversees immigrant detention and removal.
U.S. attorneys, who work for the federal Department of Justice, prosecute most unauthorized immigrants for the misdemeanor of illegal entry, although those attempting a second or subsequent illegal entry can be prosecuted for the felony of illegal reentry.
Data provided to TRAC by the Executive Office for United States Attorneys indicates that CBP (82 percent) and ICE (15 percent) were responsible for 97 percent of the immigration referrals during the first three months of FY 2010. In FY 2009, CBP referred 84 percent of immigration prosecutions and ICE referred 13 percent.
How the Judicial Process Works
U.S. attorneys prosecute immigration crimes in federal district courts. Although there are 94 federal judicial districts, the great majority of prosecutions (roughly 90 percent from October 2008 to December 2009) for immigration offenses take place in the five federal districts along the U.S.-Mexico border: Arizona, California South, New Mexico, Texas South, and Texas West.
Federal district courts handle felony cases, such as human smuggling or illegal reentry. Magistrate courts handle misdemeanors and petty criminal offenses, and other criminal (as well as civil) matters within the district court system. Accordingly, magistrates (judges) hear most illegal-entry cases. Magistrates are appointed by district court judges for eight-year terms, while the president appoints and the Senate confirms district court judges for lifelong terms.
The high volume of illegal-entry prosecutions has forced many magistrate judges to complete all court proceedings — explaining the charges, reading the accused his or her rights, accepting a plea, and sentencing — in a single hearing. Public defenders have reported that migrants plead guilty at very high rates to illegal-entry charges.
Magistrate courts have also adopted the practice of hearing criminal immigration cases en masse, meaning that multiple persons (as many as 50 to 100) appear at the same time before a judge. Judges and defense attorneys have criticized this procedure for undermining due-process rights.
In December 2009, the Ninth Circuit Court of Appeals held that en masse hearings violated a federal rule governing consideration and acceptance of guilty pleas. According to testimony before the U.S. Sentencing Commission, relevant magistrates have since reviewed their court procedures to guarantee that each defendant is personally questioned in order to ensure that all pleas are voluntary.
Regardless of citizenship status, persons facing criminal charges — including misdemeanor charges that can result in prison time — have the right to a government-funded attorney if they cannot afford one. As a result, federal public defenders in the relevant district courts face immense immigration caseloads. According to congressional testimony, federal public defenders typically only have time to meet briefly with these clients, who are primarily individuals from Mexico and Central America, before representing them in court.
Penalties for Illegal Entry and Illegal Reentry
Persons convicted of illegal entry can be sentenced to no more than six months in prison. TRAC figures for the first three months of FY 2010 indicate that more than half of those prosecuted for illegal entry were not sentenced to any time in prison.
Migrants attempting a subsequent illegal entry can be prosecuted for the felony of illegal reentry, which can carry a prison sentence of no more than two years. TRAC figures for the same three-month period show that the median prison sentence for persons convicted of illegal reentry was six months.
Under Operation Streamline, those prosecuted in criminal court are also placed in removal proceedings administered by the Department of Justice's Executive Office for Immigration Review (EOIR). EOIR is responsible for adjudicating immigration cases. Removal proceedings, which take place separately from criminal proceedings, determine if an individual is removable and if he or she is eligible for relief from removal.
Persons removed are typically barred from reentering the United States for 10 years. However, depending on the circumstances, this bar can be permanent.
Trends in How Immigration Offenses are Prosecuted
The number of criminal prosecutions for immigration offenses rose fairly steadily between 1994 and 2007. During this time, immigration prosecutions constituted a growing percentage of total federal prosecutions. Other examples of federal prosecutions include white-collar crime, drug, and terrorism prosecutions.
Criminal prosecutions for immigration offenses reached an all-time high of 91,899 in FY 2009, up from 5,747 in 1994. The steepest year-to-year increase in immigration prosecutions occurred from FY 2007 to FY 2008, when prosecutions almost doubled from 39,458 to 79,431 (see Figure 1). According to TRAC data, this increase resulted from a rising number of prosecutions in the Western Texas and Southern Texas federal judicial districts, where immigration prosecutions increased by 568 percent (from 2,863 to 19,134) and 87 percent (13,398 to 25,061), respectively.
Immigration prosecutions made up more than half (54.2 percent) of all federal prosecutions in FY 2009, up from 8.6 percent in FY 1994. From 2005 to 2009, nonimmigration prosecutions decreased in number (from 81,608 to 77,713) and as a share of total federal prosecutions (23 percent).
When compared to last year's quarterly figures, the statistics on immigration prosecutions for the first three months of FY 2010 show lower overall prosecution levels and point to a shift in strategy, as relatively more serious offenses accounted for a greater proportion of prosecutions. This decrease in immigration prosecutions was driven by a 24 percent drop in prosecutions for illegal entry. During the same three-month period, prosecutions for illegal reentry increased by 16 percent.
Has Operation Streamline Worked?
In December 2009 congressional testimony, Homeland Security Secretary Janet Napolitano characterized Operation Streamline as an effective program. Most recently, the department's FY 2011 budget justification document labeled the program a "best practice." DHS has pointed to decreased apprehensions in participating Border Patrol sectors as one measure of the program's success (note: apprehensions are events, meaning the same person can be apprehended more than once).
Apprehensions in the Del Rio, TX, sector — the first sector in which Operation Streamline was introduced — declined 75 percent (from 68,510 to 17,082) from FY 2005 to FY 2009. During the same time period, apprehensions in the Yuma, AZ, sector decreased by a striking 95 percent (138,438 to 6,951); Yuma joined the program in 2006.
However, decreased apprehensions in one sector may indicate that illegal entries have shifted to other sectors. For example, apprehensions in the San Diego, CA, sector — which has not participated in Operation Streamline — increased 14 percent from FY 2006 to FY 2008. By contrast, apprehensions in all of the remaining Southwest border sectors decreased every year from 2006 to 2009.
Along the Southwest border, apprehensions have decreased each year from 1.2 million in 2005, to 541,000 in FY 2009, and 176,000 for the first five months of FY 2010 (see Figure 2). The degree to which Operation Streamline has contributed to this reduction is not known.
Numerous studies have shown that U.S. labor market demand also strongly influences illegal-crossing attempts. In fact, many point to the recent recession — not enforcement tactics — as the primary cause of recent decreases in apprehension rates. Pia Orrenius, senior economist for the Federal Reserve Bank of Dallas, has found that since 2001, Southwest border apprehension rates have closely tracked U.S. employment rates (see Figure 3).
Political scientist Wayne Cornelius has found that notwithstanding increased border enforcement measures, eventual crossing success rates have remained consistently high (in the 97 percent range from 2005 to 2007), even for unauthorized immigrants who are apprehended by the Border Patrol. However, border enforcement strategies have increased smuggler fees and have pushed migrants to more remote and dangerous crossing routes.
Criticisms and Unintended Consequences
Beyond the concerns the recent Ninth Circuit Court ruling raised, Operation Streamline has faced other criticisms.
As stated, policy analysts, judges, and federal defenders have said that the program forces federal courts and law enforcement agencies to concentrate their efforts on nonviolent, low-level crimes at the expense of more serious offenses. According to these critics, the emphasis on illegal-entry cases has detracted from efforts to prosecute human smugglers, drug traffickers, and other violent criminals. In response, DHS has argued that because the program reduces border-crossing attempts, the agency has additional time and resources to focus on more serious offenses.
The most recent TRAC data indicates that while immigration prosecutions may be shifting to relatively more serious immigration crimes, prosecutions of those who encourage large-scale illegal entry remain modest. For example, while immigration prosecutions reached a record high in FY 2009, only 13 employers were criminally prosecuted for hiring unauthorized workers. The April 2010 raids on shuttle-bus companies linked to human smuggling rings operating along the U.S.-Mexico border indicate that DHS may be beginning to target more aggressively those who facilitate large-scale illegal entries.
However, the question remains whether illegal border crossings could be handled more efficiently and equitably through the civil deportation system. The fact that more than half of those prosecuted for illegal entry under Operation Streamline receive no prison time provides some support for this argument.
Reports also indicate that U.S. attorneys and federal defenders whose workloads are dominated by low-level immigration prosecutions do not receive the training necessary to handle certain types of more serious cases.
The criminalization of immigration law reflects high levels of government frustration with illegal migration and the large number of unauthorized immigrants in the United States.
While immigration enforcement initiatives alone will not solve the problem of illegal migration, the need to identify the elements of an effective, humane enforcement system will remain a pressing public policy issue whether or not immigration reform legislation passes in the near future.
The effectiveness of immigration prosecutions — and their possible role in such a system — requires additional research. Open questions include whether the threat of criminal prosecution deters would-be migrants, whether most immigration offenses could be handled as effectively by the civil detention system, and whether "zero tolerance" prosecution programs prevent the prosecution of more serious crimes.
Nonetheless, a border-security plan that Senators John McCain (R-AZ) and Jon Kyl (R-AZ) recently released calls for a thorough evaluation of the cost of Operation Streamline and requests that the program receive full federal funding in Arizona's two Border Patrol sectors. McCain also stated in an April 2010 hearing that he and Kyl plan to introduce legislation related to border security. In the meantime, Operation Streamline continues to receive support from these key legislators and the Obama Administration.
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