Under Operation Streamline, harsher penalties for repeated attempts to cross the US-Mexico border yield little when it comes to actually deterring migrants, while ushering in troubling trends in the way such cases are adjudicated.
Arizona ranks first in both the deaths of migrants attempting to enter the country, and the number of migrants apprehended, with Border Patrol in the Tucson Sector making 4.6 million arrests from 2000-2013.
Drawing on years of reporting in the Arizona-Mexico borderlands, journalist Margaret Regan explores the complex and politicized landscape of immigration enforcement in Detained and Deported (Beacon Press, 2015). Regan demonstrates how increasingly draconian detention and deportation policies have broadened police powers, while enriching a private prison industry whose profits are derived from human suffering. The following excerpt is from the introduction.
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Nicknamed Deportation Court by a Tucson immigration attorney with a black sense of humor, Operation Streamline had started in Del Rio, Texas, in 2005. A component of the Bush administration’s new “zero tolerance” policy on unauthorized immigration, the program barreled into Tucson three years later. By the end of 2013, some 73,900 migrants had made the harrowing Streamline trudge through a DeConcini courtroom. Streamline was meant to counteract “catch and release” programs that allowed captured border crossers to be quickly recycled across the line. The idea was that charging and jailing even a small sampling of migrants, randomly selected from among those arrested each day, would deter more would-be crossers from coming. Now bearing criminal records, they’d face increasingly steeper punishments if they tried to come back. To its critics, it was the criminalization of migration.
I’d been to see the Streamline spectacle a number of times; I’d last visited in July 2013, a few months before the bus protest. That time, sixty-nine migrants had been hauled into the courtroom in the usual shackles and chains. Most of them were dark-skinned indígenas. They were chained hand and foot, their wrist and their hands attached to still another chain that encircled the waist. (A University of Arizona study found that Streamliners were chained up to six hours on average; the US marshals guarding the court insisted that the chains were the only possible way to manage seventy prisoners at a time.)
Just a few prisoners were women. They were seated on a bench in front of the judge, while the dozens of men sat in rows and rows along one wall.
All of the accused had been in the Border Patrol holding pen for a few days, where there were no showers to be had, and they were still dusty from the desert. The smell of their sweat permeated the courtroom. Because they were facing criminal charges, each of the migrant defendants was entitled to a free, court-appointed attorney. A small army of fifteen lawyers stood near the judge; each of them was representing four or five clients.
Another time when I dropped in, Judge Bernardo Velasco was on the bench. Famed for being the speediest of the Streamline justices, he zipped through the hearing so rapidly I could barely take notes. He’d once boasted that his shortest hearing had taken a mere thirty minutes—to run through the cases of seventy people. His fast pace lent ammunition to critics who called Streamline assembly-line justice. On my July visit, Judge Charles Pyle was presiding, and by comparison, his ninety minutes of court time, devoted to sixty-nine defendants, unfolded in slow motion.
Judge Pyle called seven defendants at a time to the bench, and they walked awkwardly, their dragging chains making a racket as loud and unnerving as the chains of Marley’s ghost. One of the accused, Vicente Javier, hopped on one shackled foot as he approached, his other foot still lame from an injury sustained in the desert. Judge Pyle called for a chair and Vicente sat down. With an interpreter translating into Spanish, the judge asked Vicente a series of questions. Was he a citizen of Mexico? Sí. Had anyone forced him to plead guilty? No. Had he spent time speaking with his lawyer? Sí. He was charged, the judge said, with the felony of reentering the United States illegally, on June 24, near Nogales.
“The government will dismiss the felony charge if you plead guilty to a misdemeanor and agree to one hundred eight days in prison,” Judge Pyle explained. “How do you plead?” Vicente didn’t hesitate. “Culpable,” he said, giving the word the Spanish pronunciation, cul-PAH-blay. Guilty.
In the early years of the program, most Streamline prisoners were charged with first-time entry, a less-serious offense, and sentenced to time served. Now the government—and Streamline in particular—was cracking down on repeat border crossers, and all sixty-nine of the defendants this day were charged with reentry, a felony. If they pled guilty, the government would make them a deal: the felony would be reduced to a misdemeanor.
Every single one of the sixty-nine agreed to the plea bargain, and the Vicente scenario was repeated again and again. Charges were read, questions were asked, answers given, guilty pleas were entered. Culpable. Culpable. Culpable.
One defendant’s request for asylum broke the monotony. The man had a “credible fear” for his safety, the lawyer said. No matter. The man had to go to prison anyway and file his claim there. If he did, he’d get an interview with an ICE asylum officer, and he might, just might, escape deportation. But he still had to serve his time.
Now burdened with a criminal record, the prisoners would be in even greater trouble if they tried to cross the border again. All sixty-nine culpables were led to the exit, still in shackles, Vicente once again precariously hopping. Outside they’d be loaded onto buses and driven to the private CCA prison in Florence or another prison elsewhere. They were criminals now, and they’d be going to criminal prisons, not immigration detention centers. After they served their time—sentences varied from about 30 days to 160—they’d be deported.
If their deportation destination was Nogales, they’d complete a circle of DeConcini connections. The Streamline courthouse where they’d just been sentenced was named for the late Evo DeConcini, a former Arizona Supreme Court justice. The DeConcini port of entry at Nogales was named for Evo’s son Dennis DeConcini, a former Arizona senator. Dennis DeConcini had still another link to immigration: he was a longtime member of the board of the for-profit Corrections Corporation of America, a major imprisoner of Streamliners across the Southwest.
Dan Anderson, a Tucson lawyer in private practice, spent one day most weeks working Streamline as a court-appointed attorney. He liked to go to El Minuto Mexican restaurant after court, and he met me there one afternoon to explain the nuts and bolts of the hearings. Located right next door to the shrine of El Tiradito in El Hoyo, near where the Streamline siege would later unfold, El Minuto had bright saguaro cacti painted on the Spanish arch around the doorway. Inside, the norteño music of the borderlands played on the radio. Dan was a regular, a favorite customer who spoke with the staff in his fluent Spanish, and the waiters razzed him good-naturedly. “Hola, abogado!” one called out. Hi, lawyer! “Send anyone to jail today?”
Dan had once upon a time worked for Pima County as a public defender. His old boss, Isabel Garcia, was an outspoken immigrant-rights activist and opponent of Streamline, and she had called upon lawyers like Dan to refuse to participate in the operation.
“Isabel tried to get me to promise not to do Streamline,” Dan said, but he saw no reason to stop. He said he worked as hard for his Streamline clients as he did for the other poor people he represented: when he wasn’t doing Streamline, he was a court-appointed attorney in the regular criminal courts. “I’m a defense lawyer. I’m looking for grounds for defense. I ask questions. I look for anything I can fish with.”
On his Streamline days, he spent three hours in the courtroom in the morning, devoting a half hour or so speaking to each of his clients. Sometimes he found his angle when he discovered that a client spoke one of the many indigenous languages of Mexico or Guatemala, Zapotec, say, or Mam, and could understand very little Spanish. In those cases, he could usually get the charges dismissed, on the grounds that the client couldn’t understand the court’s Spanish translations well enough to meet the legal standard of participating meaningfully in the hearing.
“If they don’t speak enough Spanish to have a fair trial, they just get dismissed. They get sent to the border. They’ll have an arrest record”—but they don’t have to go to jail. Dan had once sent an investigator to Mexico to look into a Streamline client’s claim to “derivative citizenship.” The woman’s grandparents, he’d learned, were US citizens who long ago had moved to Mexico; thus the woman’s mother, though born in Mexico, was an American citizen. If the mother had ever lived in the United States, that would give her Mexican-born daughter, the Streamline defendant, a claim to citizenship as well. As a bonus, Dan’s client had US-citizen children of her own. The woman was jailed while Dan’s investigator looked into the case.
Despite the money and time put into the investigation, it didn’t pan out. The defendant’s mother had lived her whole life in Mexico. The case fell apart and the woman was deported. Ironically, she was the only one in a family of four generations not entitled to American citizenship.
Most of the cases were simpler: the clients were citizens of another country who were accused of crossing the border, twice. Dan would lay out the plea deal the American government was offering them.
“I explain that there are two charges: one, a felony for reentry after deportation, and two, misdemeanor for illegal entry.” If clients took the deal and pled guilty to the misdemeanor, the maximum sentence they’d get would be six months.
If they were to fight their case, first they’d have to wait a minimum of three and half months in jail before their regular jury trial began. And at trial, they’d be facing the felony charge. If they were found guilty, they’d have to wait two to three months more before they were sentenced. Then they’d be looking at doing much more time than Streamline’s maximum of six months. “I go over the choices,” Dan said. “I say, ‘You can do all that or take the plea.’ I just say, ‘Which sounds better?’ Most of them will say, ‘The plea looks better.’ To accept the misdemeanor is to get home much sooner.”
Dan understood that the masses of prisoners in chains in the Streamline courtroom offended Americans’ sense of justice. But he wished that the Streamline critics would also look into how badly indigent defendants are treated in regular criminal courts. “Why aren’t all these observers going to city court, to justice court, to see the injustice there? Go to any misdemeanor court—people get ramrodded through. It’s all about poverty and racism.”
The Streamline sentences varied depending on the client’s history. Harsh treatment was meted out to anyone who’d been “A-Tepped,” deported through the Border Patrol’s Alien Transfer Exit Program, and then caught coming back. ATEP is meant to disrupt human smuggling networks, to separate border crossers from their coyotes. Picked up in one location, the Tucson Sector, say, they’re deported out of another, maybe the McAllen Sector in South Texas. With rival cartels operating in different parts of northern Mexico, “it’s dangerous for people from Sonora and Sinaloa to be deported out of Texas into Tamaulipas or Nuevo León,” Dan said. “We clearly don’t take into account the danger of the places we release them.”
And if the A-Tepped deportees fled these violent locations, slipped back into the States, and got arrested through Streamline, “they give them an extra thirty days because they didn’t learn their lesson.”
The court reserved even greater wrath for defendants who’d been deported through Streamline before—and then got caught up in Streamline again when trying to cross the line once more. These double-timers who’ve defied the United States could get five to six months in jail.
When the Streamline lawyers like Dan met with their clients for the first time the morning of their hearings, they sat down to talk at tables and chairs temporarily set up in the courtroom. There might be seventy captured immigrants in the room, fifteen attorneys, teams of US marshals, and a couple of Border Patrol agents. The utter lack of privacy, attorney Heather Williams told a congressional subcommittee in 2008, compromised the whole operation from the get-go.
“Confidentiality of information must be guaranteed between client and lawyer” by law, she said in a written statement. Many of the migrants had been picked up in groups; a coyote might hear what one of his customers told an attorney, with possible consequences for the migrant’s safety in the future. Williams, then an assistant federal public defender, ticked off a host of other concerns. The defendants were held by Border Patrol for forty-eight hours or more before an initial court appearance, a possible violation of the Fifth Amendment right to due process. Once they were in the rush of the fast-track proceedings, exculpatory issues “can be and have been missed,” she said. Clients might have a mental illness or be under the influence, or be so exhausted or hungry that they were in no condition to give assent. And attorneys, no matter how hardworking, had inadequate prep time.
Critics contend that the quickie hearings for the immigrants fall far short of the standards guaranteed by the Fifth Amendment. And that amendment doesn’t limit those constitutional rights to citizens. It reads, “Nor shall any person. . . be deprived of life, liberty, or property, without due process of law.”
Sixty percent of deported Streamliners in the University of Arizona study told interviewers that their appointed lawyers did not explain their legal rights; 40 percent said that their lawyer simply told them to plead guilty and to sign their order of deportation. Scholar Hailey Anne Sheldon argues that “illegal entry is a highly defensible crime. It is the burden of government to prove the defendant knowingly crossed.” The nearly universal guilty pleas raise the suspicion that lawyers are not adequately pushing the government to prove its case.
Prosecutors complain that illegal-entry cases have so clogged the docket in federal courts that they have diverted money and staff away from the pursuit of serious criminal cases. As immigration prosecutions have risen, UC Berkeley law professor Joanna Lydgate writes, “white-collar prosecutions, organized crime prosecutions, public corruption prosecutions and drug prosecutions” have dropped.
After the Streamline hearing I attended in March 2013, Judge Velasco came out to speak to Samaritans and a student group gathered in the back of his courtroom. Fully 40 percent of the cases heard at DeConcini were now immigration-related, Streamline and otherwise, he told them.
And the price tag for Streamline is staggering. Politicians on both sides of the aisle complain that numbers are hard to come by. No More Deaths calculates the annual costs of the Tucson Streamline apparatus alone at $120 million in court costs, including fees of $100 an hour and up for private court-appointed attorneys like Dan Anderson. The costs of imprisonment of Tucson’s Streamline convicts run to $50 million annually. Those costs are multiplied across Streamline proceedings all along the Southwest border.
Judge Velasco noted that the failed 2013 immigration-reform bill, with its emphasis on security, would have tripled the number of migrants sent through Streamline in Tucson. (And their criminal convictions would have denied them any relief offered by immigration reform.) A sharp rise in the Streamline census would have provided more work for lawyers, more jobs for US marshals to guard defendants, and maybe even more gigs for construction workers to build new courtrooms. Plus, Judge Velasco said, the higher numbers would have enriched the for-profit prisons where most of the Streamline defendants across the Southwest were held.
“The private prisons are pushing for ‘reform,’ meaning incarceration,” he said. “They’re pushing to make sure reform has a high”—and profitable—“security component."
Streamline is touted as a deterrent. The jail time that Streamliners serve, the reasoning goes, makes them think twice about coming back. And friends and family back in Mexico or Central America might reconsider coming too, if they knew that prison was a real possibility. A 2013 report from the Congressional Research Service provided some evidence that the program was working as intended. In the 2012 fiscal year, only about 10 percent of deported Streamliners tried their luck crossing again, compared to 27 percent of immigrants who had been “voluntarily returned” without consequences. But Customs and Border Patrol figures show a smaller disparity. According to the CBP numbers, 10 percent of Streamliners cross the border again—the same proportion that the congressional researchers found—but the retry rate for all returnees is just 17 percent. That makes for a divide between Streamline convicts and other deportees of just 7 percent. Border Patrol nevertheless points to lower apprehensions along the border in recent years as evidence that Streamline is working. Critics view that conclusion as simplistic.
“It is impossible to isolate the relative success of Operation Streamline as compared with . . . other recent enforcement efforts,” contends Lydgate. The Streamline years coincided with the construction of more and bigger walls along the border, more Border Patrol boots on the ground, and the devastating economic recession. All of these developments played a part in persuading more would-be migrants to stay home. The team of researchers from the Center for Latin American Studies at the University of Arizona interviewed more than eleven hundred deportees who’d been sent back to six different Mexican cities along the border, between 2010 and 2012. They found that deportees’ decisions on whether or not to return to the United States depended far more on whether they had family al Norte and far less on whether they stood to be punished severely if they returned.
“People that have established lives in this country will do just about anything possible to be reunited with their family members in the United States,” wrote study coauthor Daniel E. Martínez, now an assistant professor at George Washington University. “When family is the main motivation for migration, many people will cross again and again regardless of the punishments handed down.” Of the deportees who told the researchers their home was in the United States, fully 70 percent said they would go north again.
Public defenders report seeing more and more second-timers back in Streamline, and Streamline convicts frequently turn up at the aid stations in Nogales. They readily admit that they’ll slip across the border again: they’re desperate to return to their families in the States or they need to work and send money back home to families in Mexico. Ted Robbins of NPR sat at the Kino comedor for two days straight in 2010 and questioned the ninety-six deportees who came to eat. Though they didn’t all know the term “Streamline,” thirty-five told Ted they had pled guilty to a criminal charge of entering unlawfully; thirty of those convicts said they intended to reenter the United States. Only one of the Streamliners said he’d stay in Mexico for fear of a lengthier prison term.
Samaritan Bob Kee once ran into a Streamline convict walking north through Arizona’s Tumacacori Highlands. “He told me, ‘I was in Streamline,’” Bob said. The man’s reasons for coming back were more powerful than the threat of more criminal penalties. He had a wife and child in Tucson.
No More Deaths has argued that Streamline makes the journey north more dangerous. Convicted Streamliners, fearful of even greater punishment if they get caught coming back, are more likely to take ever riskier wilderness routes.
A staffer in the Mexican Consulate in Tucson told me that at least one Streamline convict had paid the ultimate price. The man had talked to the consular officer before he was deported, and he was distraught that he was being sent back to Mexico, far from his wife and children.
Months later, the man turned up on the lists of the desert’s dead. In October 2013, the same month as the Streamline protest, he perished in the southern Arizona wilderness, on his way home.
Excerpted from Detained and Deported: Stories of Immigrant Families Under Fire by Margaret Regan (Beacon Press, 2015). Reprinted with permission from Beacon Press.