Managing Non-Citizens Through the Criminal Justice System: The Mass Prosecution of Migrants Under Operation Streamline

Post by Bill De La Rosa. Bill is a Spanish language editor and regional contributor for the Border Criminologies blog. His research examines the convergence of immigration law and criminal law, and the adjacent fields of border control and punishment. He holds master’s degrees from the University of Oxford in Migration Studies and in Criminology and Criminal Justice. This post draws upon his MSc research, which received the 2019 Border Criminologies Masters’ Dissertation Prize. Bill is on Twitter @DeLaRosaBill.

Two women—one of them holding a baby girl—gently stepped into the federal courtroom and sat in front of me. They were color-coordinating in soft-pink blouses, had their long black hair and makeup done, and were attending a relative’s hearing. They seemed nervous and uncertain about what to expect, carefully glancing around the room to confirm they were in the right place.

A door on the right swung open, and a group of ten migrants were shuffled inside the federal courtroom in five-point restraints, harnessed at the feet, waist, and wrists. The sound of iron chains clanking reverberated throughout the room. It was disturbing to watch. Their hair was unkempt, clothes were ragged with dirt, and their faces were parched from spending hours if not days under the scorching sun. 48 hours before they were brought to this criminal trial, the United States (U.S.) Border Patrol found them in the desert of southern Arizona, attempting to enter the country without authorization.

Most of them had travelled for weeks or months on foot and aboard perilous cargo trains to reach the U.S. Mottled salty patches of sweat from their journey covered their shoulders and necks. In a single file line, each person in the group grabbed a headset from a court interpreter, taking cautious steps to avoid tripping on their shackles before finding their seats. Some looked tensed and confused, while the others, depleted from their travels, appeared hopeless and defeated. They were all in the process of being punished, minutes away from becoming criminalized, and ultimately excluded from the U.S. for unlawfully crossing the southern border.

From March 25, 2019 to April 5, 2019, I witnessed the criminal prosecution of these ten men and 688 other migrants in the U.S. District Court in Tucson, Arizona. Every day, from Monday through Friday, up to 75 migrants are prosecuted in Tucson in as little as one hour. They are charged with one of two entry-related offenses—in some cases both—under the Immigration and Nationality Act of 1952 found in Title 8 of the U.S. Code. Under Title 8, Section 1325, people who enter the country without proper inspection are charged with a misdemeanor, while those who attempt to unlawfully reenter or are found in the country after having been denied admission excluded, deported, or removed are charged under Title 8, Section 1326 of the U.S. Code.

Although codified in 1952, unlawful entry provisions have in fact existed since 1929. However, for decades, the U.S. rarely enforced them. Prior to the mid-1990s, when the U.S. began to bolster its border security, there was a long-standing policy of allowing migrants who unlawfully entered or reentered the U.S. to return to their country of origin without facing prosecution through an administrative process known as ‘voluntary departure’.

Yet, even in the 1990s, the number of entry-related prosecutions were relatively small, particularly in relation to recent figures. In 1995, for instance, according to the Syracuse University Transactional Records Access Clearinghouse (TRAC), a total of 4,376 undocumented migrants were criminally prosecuted. In contrast, TRAC found 97,384 migrants were charged through the criminal justice system under unlawful entry provisions in 2013, representing 53 percent of all federal prosecutions nationwide. Due to a federal initiative known as Operation Streamline, the criminal prosecution of immigration violations has not only skyrocketed, it has also become the new norm for managing non-citizens.

Launched in 2005, Operation Streamline is a program of the U.S. Department of Homeland Security (DHS) and Department of Justice (DOJ), which criminally prosecutes migrants in a mass fast-track hearing in order to deter undocumented migration. The initiative was born in Del Rio, Texas—one of nine Border Patrol Sectors on the U.S.-Mexico border—and was quickly adopted in other jurisdictions in the Southwest. Today, Tucson is one of three jurisdictions where Streamline hearings are held. 

Under Streamline, instead of being processed through the civil immigration system, non-citizens are managed through the criminal justice system, prosecuted, and sentenced to time in prison before being deported to their country of origin. According to an in-depth report about Streamline, between 2005 and 2016, the U.S. criminally prosecuted over 730,000 migrants, 412,240 for improper entry and 317,916 for reentry.

At the same time, Streamline has proven ineffective in deterring undocumented migration. A recent study by the Vera Institute of Justice demonstrated the clearest evidence showing that Streamline does not have a deterrence effect. Rather, the policy has cost American taxpayers billions of dollars, and has raised significant legal and social concerns such as undermining basic principles of fairness and equal treatment under the law, and more importantly, fueling the overrepresentation of Latinos in federal prisons. According to the U.S. Federal Bureau of Prisons, Latinos represent 32% of all inmates but only constitute 18 percent of the country’s total population.

In my master’s dissertation, drawing upon ethnographic observations of Streamline hearings in Tucson, five in-depth semi-structured interviews with criminal defense attorneys, and informal conversations with U.S. magistrate judges and Marshals, as well as an array of evidence including photographs, government documents, news articles, and secondary literature, I critically examined the development of Streamline, the policy’s legal and social implications, and its impact on the people who experience it.

As a policy instrument, I argued, Streamline does much more than it claims. Streamline has fundamentally reshaped how the U.S. enforces border controls, cementing the criminal justice system as a primary mechanism for the management of non-citizens. By processing undocumented migrants through the criminal justice system while not affording them basic principles of fairness and equal treatment, the U.S. has conjured a legally sanctioned machinery that criminalizes, excludes, and unjustly punishes low-income migrants from Latin America.

One of these migrants was the man the women in pink were hoping to see. They patiently awaited his entrance. Finally, when the third group of ten migrants were ushered inside the courtroom, there he was, wearing a royal blue shirt with a large friendly face. Both parties made eye contact. Tears flooded the women’s faces. The woman holding the baby girl lifted her up for the man to meet. He tried his best to wave back but the chains did not let him. In less than ten minutes he was sentenced to serve 105 days in prison prior to his deportation. The women blew him kisses on his way out. They did not know when they would see him next.

You can read Bill's thesis here. 

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How to cite this blog post (Harvard style) 

De La Rosa, B. (2019) Managing Non-Citizens Through the Criminal Justice System: The Mass Prosecution of Migrants Under Operation Streamline. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2019/11/managing-non (Accessed [date]