Border Patrol Program Raises Due Process Concerns

toggle caption Ted Robbins/NPR

This is the first in a three-part series that takes an in-depth look at a little-known program that is pushing the boundaries of the American justice system along the U.S.-Mexico border: Operation Streamline. NPR's Southwest correspondent Ted Robbins has spent the past three months analyzing court data and documents on the program.

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 and counseled, plead and are 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. She had 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 shuffled into the seats, wearing handcuffs and leg shackles -- and the same clothes they've had on since they were caught.

The defendants had earphones so they can hear a court interpreter repeat the judge's words in Spanish.

Molzen told 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."

Operation Streamline Jurisdictions The cities marked on the map are the federal jurisdictions that have implemented Operation Streamline.



The charge was a misdemeanor. The maximum penalty was a fine and six months in prison. In groups of five to seven, Molzen asked 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 asked them how they plead.

The defendants all pleaded 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 sentenced the defendants to time already served -- six to 10 days from when they were caught. Everyone now had a criminal record. And the judge gave them a stern warning that they'll face a longer sentence if caught again.

She did recommend that two people not be deported because they had family in the United States legally. She told 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.

Hear From The Judges Hear Judge Brack 1:25 Judge Robert Brack talks about the average defendant he sees and how programs such as Operation Streamline represent a "sea change" in the way the government deals with illegal border-crossers. (Presiding Judge, Federal District Court, Las Cruces, New Mexico Division). Hear Judge Ludlum 1:04 Judge Alia Ludlum explains why a court appearance might have an impact on illegal crossers and why lumping illegal immigrants looking for work with those who have a criminal history is unwise. (Presiding Judge, Federal District Court, Del Rio, Texas Division) Hear Judge Roll 1:09 Judge John Roll says his court tries to treat each Operation Streamline defendant fairly and that expanding the program will be tough without more resources. (Presiding Judge, Federal District Court, District of Arizona)

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 with 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, says Operation Streamline still violates defendants' rights. Imagine, she says, if the tables were turned.

More Resources A review of Operation Streamline by the Chief Justice Earl Warren Institute at U.C. Berkeley.

The latest Border Security Plan from the Department of Homeland Security.

"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.

Not Deterred

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.

toggle caption Ted Robbins/NPR

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.