LATINO VOICES
06/03/2014 07:35 am ET Updated Jun 03, 2014

Here's An Immigrant Imprisonment Program That Obama Could Stop Without Congress

RJ Sangosti via Getty Images

Last month, in the face of growing pressure from immigrant rights activists, Hispanic politicians and Democratic allies, President Barack Obama ordered the Department of Homeland Security to review the policies that drive the administration's record-setting pace of deportations.

It remains to be seen what kind of changes will come as a result. Last week, the White House delayed the announcement of possible changes for two months in an effort to keep alive the debate over comprehensive reform. Activists have long demanded that Obama use his executive power to curtail deportations dramatically. But while the president supports a pathway to citizenship and has exempted from deportation many undocumented immigrants who arrived as children, he has maintained that he must enforce existing immigration law unless Congress passes comprehensive reform.

However, the White House does appear to have the power to stop a program reviled by immigration activists and criticized by legal scholars that has helped inflate the percentage of deportees with criminal records in recent years.

Begun under the George W. Bush administration, the program, known as Operation Streamline, charges people en masse with the crime of illegal entry (a misdemeanor) or illegal re-entry (a felony) after they have been caught illegally crossing the border. The detainees are given a jail sentence and then deported. Immigration activists and civil rights defenders have long opposed the program, citing concerns about due process and arguing that it diverts the courts' attention from more serious crimes.

The Border Patrol first developed the idea for Operation Streamline in South Texas, according to the California Law Review. Amid growing numbers of illegal immigrants from Central America, who, unlike Mexicans, could not be immediately repatriated, the area was running out of bed space in detention centers, and authorities often had no choice but to allow apprehended immigrants to leave detention with a notice to appear in court.

The Border Patrol suggested that the federal government prosecute non-Mexicans to create a deterrent for crossing illegally in the area and to funnel undocumented immigrants into the criminal justice system, where more bed space was available. The zero-tolerance program quickly spread to other jurisdictions and expanded to cover Mexican nationals.

Today, under Operation Streamline, judges hear dozens of cases within hours, often convicting migrants in groups to save time. In an article published in February, New York Times reporter Fernanda Santos described the daily scene in a courthouse in Tucson, Arizona:

Men and women arrested along the border, the chains around their ankles and wrists jingling as they move, are gathered to answer to the same charges -- illegal entry, a misdemeanor, and illegal re-entry, a felony. They have not had an opportunity to bathe since they set off to cross the desert; the courtroom has the smell of sweaty clothes left for days in a plastic bag. Side by side in groups of seven as they face the bench, they consistently plead guilty to a lesser charge, which spares them longer time behind bars. The immigration charge is often their only offense.

Things weren't always this way. Tucson attorney Isabel Garcia worked as a federal public defender in the 1980s, when the crime of illegal entry was rarely prosecuted. She says she won several of those cases by challenging the admissibility of the immigrant's confession.

"In Tucson, it's the daily bread for those who work in this court system," Garcia said. "Why are we doing this? We know there's violations of law everywhere. So don't give me this 'we prosecute every violation of the law,' because we don't."

Maintaining a program that leads to greater criminal prosecution of undocumented immigrants would seem to be at odds with a presidential administration that has called for comprehensive immigration reform and used prosecutorial discretion to make it more difficult to deport some undocumented immigrants. But the president of the National Immigration Judges Association, Dana Leigh Marks, says the current mandate to prosecute large volumes of illegal-entry and re-entry cases ultimately rests with the executive branch, rather than with Congress.

"If it's a policy, it's not mandated by law," Marks told HuffPost. "These prosecutions occur in a criminal context. They could choose to place people in immigration proceedings and not choose to prosecute them criminally in addition."

The White House, the Department of Homeland Security and the U.S. Attorney's Office did not return requests for comment.

Immigration-related crimes now make up the most-prosecuted category of crimes in federal courts, at 41 percent of the caseload in the 2012 fiscal year, according to the most recently available statistics from the U.S. Attorney's Office. Drug crimes took second place, at 22 percent, followed by violent crime at 19 percent.

In April, the Blue Ribbon Commission, a group made up of undocumented and formerly undocumented activists, issued a call for the Obama administration to end Operation Streamline. The group called the proceedings "dehumanizing" and pointed out that in many cases those convicted are "trying to return home to their families or flee prosecution."

Despite such criticisms, the program still has its supporters. Bernardo Velasco, a judge in Tucson, told The Huffington Post he hears about 350 Streamline cases every week.

"Everybody that appears before me has a lawyer appointed to represent them at no cost to them," said Velasco. "Everyone that appears before me has had a chance to speak to their lawyer in the morning, to talk to the Mexican consulate at noon and to talk to me. So I'm satisfied that due process is more than dealt with."

Critics say that under the Streamline program, many people end up with a criminal offense on their record when they wouldn't otherwise have any. But Velasco told HuffPost that virtually everyone who appears before him is a repeat crosser, often with a previous conviction for illegal entry.

"That criticism is no longer valid because the people that are being prosecuted now have criminal records, and they're being offered a plea agreement that offers them less time than they could possibly get if they went through a felony proceeding," Velasco said. "Every country in the world has the right to secure its borders."

In its annual report on deportations this year, the Department of Homeland Security highlighted that 59 percent of the 368,644 immigrants deported in 2013 had been convicted of a crime, the highest percentage in the last five years.

But critics point out that many of the people labeled as criminal offenders in those statistics are guilty only of crossing the border illegally -- a crime that does not set them far apart from others who were apprehended outside the border zone or who fell out of lawful immigration status while overstaying a visa.

Immigration offenses accounted for 54,812 of those crimes in 2013, according to TRAC -- 25 percent of the total. The number of deportees with an immigration conviction rose 167 percent between 2008 and 2013.

At times, authorities have seemed almost comically enthusiastic about prosecuting immigration crimes. NPR reports that Mexican migrants have been stopped at legal ports of entry while they were trying to return to Mexico. Instead of simply being allowed to leave, they were detained, convicted of illegal entry and then deported -- all at taxpayer expense.

"It's fully under the purview of the administration whether to prosecute these cases," Vicki Gaubeca, director of the ACLU's Regional Center for Border Rights in New Mexico, told HuffPost. "It's just a colossal waste of resources."

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BEFORE YOU GO
6 Misconceptions About The Border
PHOTO GALLERY
6 Misconceptions About The Border

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