Federal prosecutors in San Diego have been using the wrong criminal code to charge migrants with misdemeanor illegal entry under its fast-track prosecution program, an appeals court ruled this week.

The opinion from the U.S. 9th Circuit Court of Appeals in theory invalidates thousands of convictions that have come out of the Trump administration program — known informally as “Operation Streamline” — since it began in California in April 2018.

In practice, however, each defendant who was improperly convicted under the criminal code will have to file his or her own appeal, a process made more difficult because the vast majority of defendants were deported shortly after their convictions.

At the center of the debate is the section of the misdemeanor illegal-entry law, §1325(a)(2), which makes it a crime for any unauthorized immigrant to “elude examination or inspection by immigration officers.”


This is the section that prosecutors had been using to charge migrants who appear in the Streamline court — a program meant to quickly adjudicate most illegal-entry cases under the administration’s “zero tolerance” policy.

Most migrants were arrested after crossing illegally between ports of entry. The migrant in this case, Oracio Corrales Vazquez, crossed about 20 miles east of the Tecate Port of Entry in June 2018. He was found by the Border Patrol several hours later hiding in brush about four miles north of the U.S.-Mexico border.

But on Wednesday, the three-judge panel ruled in a split decision that the “eluding” section of the law did not apply to Corrales because he did not enter at a time and place designated for examination and inspection by immigration officers — namely at a port of entry that is open for inspection.

Rather, the panel ruled, migrants who cross along other parts of the border should be charged under a different section of the law, §1325(a)(1), which makes it a crime “to enter or attempt to enter the United States at any time or place other than as designated by immigration officers.”


The “eluding” section of the law should be reserved for unauthorized immigrants who cross through ports of entry while concealed in vehicles or those who try to sneak past nearby inspections officers, the panel added.

Government prosecutors have already stopped charging Streamline cases under the “eluding” section as of a few weeks ago, according to Kara Lee Hartzler, an attorney with Federal Defenders of San Diego, which filed the lawsuit. The change came a few weeks after oral arguments were heard on the case in mid-June.

Similar Streamline courts in Arizona and Texas, which have been operating longer, already charge under the “entry/attempted entry” section of the law.

Charging migrants under the “entry/attempted entry” section means other legal defenses can come into play, Hartzler said — one of the reasons she suspects the government had avoided using the section in the first place.


One defense that can be argued is that the “entry/attempted entry” section of the law doesn’t apply to asylum seekers who cross between ports of entry and then flag down authorities to be arrested. That is the method many asylum seekers have taken to over the last year as a way to potentially speed up the application process.

Judge Jay Bybee, who wrote the majority opinion, addressed “sympathy for the government’s position in this case” in a separate concurring opinion. He wrote he understood the government’s impulse to charge the way it did, adding “much of our illegal-entry and illegal-reentry jurisprudence is a mess.”

He noted problems with applying the law to asylum seekers who seek capture.

Still, he said the government is required “to march in a straight line” when it comes to charging these cases, but urged the country to “clean up our own mess under §1325(a)(1) at the first opportunity.”


Judge Ferdinand Fernandez disagreed with Bybee and Judge Kim McLane Wardlaw, writing in a dissenting opinion that the government’s broader interpretation of the law was valid, and that just because the interpretation may make the overall law somewhat redundant that didn’t mean it should be narrowly read.

The U.S. attorney’s office in San Diego declined to comment Thursday. The Department of Justice could ask for a rehearing on the matter or could petition the U.S. Supreme Court.

It’s unclear how many convictions this ruling could affect. A total of 6,461 cases of misdemeanor unlawful entry were filed in San Diego in 2018, according to the district court, although it is unclear how many were filed improperly under the “eluding” section.

Federal Defenders has already filed some 400 appeals on Streamline cases on a variety of legal grounds, including many on this issue. Notifying other defendants of their legal recourse in light of the ruling poses a challenge, since most have been deported.


Those who do wish to appeal their convictions can do so from abroad, Hartzler said.

“It wouldn’t necessarily require them to come back” to the U.S., she said. “All we need is their signature.”

An illegal-entry conviction, even a misdemeanor, is a black mark on a migrant’s record. It could result in a longer sentence if caught again, or could harm a migrant applying for legal status or asylum in the future — all reasons why a defendant would want to get a conviction overturned, Hartzler said.

Davis writes for the San Diego Union-Tribune.