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The Ninth Circuit Court of Appeals will hear oral arguments today in two cases challenging the administration’s use of “Streamline court” prosecutions. Operation Streamline launched in 2005 as a fast-track program to target and prosecute migrants en masse for unauthorized border crossings. Streamline arrived in San Diego for the first time in 2018, as part of the “zero-tolerance” policy, whereby U.S. attorneys offices at the southwest border were instructed to prosecute all migrants entering between officials ports of entry under 8 U.S.C. § 1325, improper entry. The Federal Defenders of San Diego are challenging the use of Streamline courts, asserting they operate as part of an unconstitutional “separate but equal” system, subjecting defendants to appalling conditions, and violating due process rights.


Immigration prosecutions: discretionary double punishment

Section 1325 Title 8 U.S.C. makes it a federal crime to enter the U.S. outside of an official port of entry and § 1326 makes it a crime to reenter the United States after a deportation. Entry and reentry violations are the most prosecuted federal crimes in the country, used by the government to demonize immigrants and tear families apart. Border crossing prosecutions were the centerpiece of the administration’s family separation policy in 2018, when Customs and Border Protection (CBP) systematically tore apart families to prosecute parents and guardians. Even after the administration ostensibly ended the practice, family separations continue, some as the result of entry and reentry prosecutions.

Criminal prosecutions for migration violations are discretionary. People who enter the U.S. without authorization or commit other violations of immigration law can face either civil or criminal sanctions. Civil immigration matters are heard in administrative courts run by the Justice Department and can result in deportation. Criminal immigration matters, on the other hand, are handled in federal trial courts and can result in incarceration prior to deportation. The Executive Branch has broad authority to decide how federal immigration law is enforced; its use of criminal prosecutions has increased dramatically in recent years.In FY 2018, the Department of Justice charged 85 percent more immigrants with unlawful entry than the year prior, and increased felony reentry prosecutions by over 38 percent.


Equal protection violations – United States vs. Oscar Chavez Diaz

The Ninth Circuit Court of Appeals is considering arguments that the Streamline prosecutions discriminate on the basis of defendants’ alienage, national origin, and race. In response to the attorney general’s “zero tolerance” policy, the Southern District of California created a new legal system in July 2018 that exists solely to prosecute individuals charged with misdemeanor illegal entry. The Federal Defenders argue that this separate system places immigrants facing Streamline prosecutions at unequal footing with other defendants in the Southern District. “They suffer greater restrictions on their liberty…are held in substandard conditions that fail to provide basic human amenities…have no opportunity to avoid a conviction through a fine or a deferred prosecution agreement,” the Federal Defenders argue in court filings. The briefs in the case also cite court decisions over the last year that relied on President Trump’s xenophobic statements against Mexicans and Central Americans to find animus on the basis of race and national origin.


Knowing and voluntary pleas – U.S. vs. Claudia Hernandez-Becerra

The case of U.S. vs. Claudia Hernandez-Becerra argues that immigrants’ pleas in Streamline court are not based on knowing and voluntary decisions to plead guilty. The Federal Defenders argue that substandard and inhumane conditions result in coercive guilty pleas. Court briefs tell the story of one victim of Streamline named Claudia Hernandez-Becerra, who pled guilty to illegal entry only after being held in a cold and dirty CBP facility for 3 days with little food and no access to basic personal hygiene services. Such conditions lead to serious questions of coercion and competency in pleas. NIJC joined a coalition of legal rights organizations in filing an amicus brief for this case detailing the substandard and inhumane conditions defendants are subject to when going through illegal entry prosecutions.


Stories from NIJC clients

The stories of three NIJC clients who have faced immigration prosecution show the severe due process and human rights violations this practice of double punishment inflicts on people and their families.

James* arrived in the United States from Mexico in 1991 when he was a child, and lived in the U.S. for 20 years with his parents and siblings, all of whom are lawful permanent residents or U.S. citizens. James’ father filed an application for him to start the long process of becoming a lawful permanent resident in 1998, and he was granted temporary status while he waited for an opportunity to complete it. In 2010, local police pulled James over in a traffic stop, and eventually turned him over to ICE, coerced him into signing a form requesting voluntary return to Mexico. He was never informed that he would be eligible to fight his deportation, or that he had a right to a day in court, and was sent to Mexico the same day.

After being returned to Mexico, James became a victim of cartel violence. In an effort to seek safety, he attempted to return to the U.S. by crossing the border in July 2019. He was apprehended at the border and charged with unlawful entry under 8 U.S.C. § 1325. This charge was ultimately dismissed, but as he sat at the defendant’s table with his lawyer, CBP officials entered the courtroom, detained James, and transferred him to CBP custody. He was held incommunicado for 20 days. NIJC helped file a successful writ of habeas corpus and he was finally transferred to ICE custody where he was able to speak to his family and his lawyer. James’ lawyers later found that, at the time of his removal to Mexico, ICE agents were aware he had been granted temporary status and a work permit.

Ana* lived in the U.S. for a total of 26 years. She is the proud mother to three U.S. citizen children and grandmother to a beautiful baby granddaughter. Ana first arrived in the U.S. from Mexico in 1991 at age 17, sent by her mother to flee physical and emotional abuse from her father. While the U.S. ensured safety from her father, she suffered through an extremely abusive relationship as an adult. Even though she called the police for help several times, Ana was never informed that she could seek protection from her abuser and apply for a U Visa.

In 2017, Ana traveled to Mexico to see her dying mother. Ana’s daughter sought help to file paperwork so Ana could lawfully return, but she received bad advice from an unauthorized practitioner and she was denied reentry due to an incomplete application. While in Mexico received threats from a strange man and suffered her separation from her children, which drove her to return to the U.S. in 2019. She was quickly deported without being given the chance to request asylum, and upon her second attempt was charged with a 1325 misdemeanor. Because Ana returned to the United States after spending more than one year undocumented in the United States, she is now strictly barred from ever pursuing a family petition to reunite with her children. Ana is now in Mexico seeking relief by filing for a U Visa, which will be more difficult because of her 1325 misdemeanor conviction.

Juan* is a victim of assault in the United States and suffers from serious mental health concerns as a result, including flashbacks, trouble sleeping, and paranoia about his attackers being nearby. Juan arrived in the United States from Mexico in 1998 at the age of 15. He has five U.S. citizen children in California. His entire family is in the United States.

Juan was first deported in 2008, when U.S. Immigration and Customs Enforcement officials forced him to sign a stipulated removal order. An immigration judge ordered his deportation without telling him that he was eligible for a form of immigration relief known as cancellation of removal, due to his long period of residence in the United States and the hardship his U.S. citizen children would face upon his deportation. Desperate to reunite with his family, Juan attempted to return to them a number of times and was deported, never able to see a judge. While living in the United States in 2010, Juan was shot at, an assault which has caused him serious trauma and lasting health issues. He is terrified to return to Mexico because a close family friend was kidnapped and he is scared of threats of cartel violence. Juan was arrested in 2018 in San Diego and charged with unlawful reentry (1326). Because a federal judge found his past removals to be unlawful, that charge was dismissed, but the prosecutors still decided to charge him with 1325 (illegal entry). As a result, he continues to face potential prison time and another removal. Juan is now working to obtain a U Visa, based on his bravery in reporting his assault to the police despite his undocumented status.

Border crossing prosecutions are double punishment, applied in a discriminatory way that disproportionately targets people of color. The criminalization of migration heaps the harm of incarceration on immigrant communities of color already facing threats from a punitive deportation and immigration detention system. As long as they remain on the books, Section 1325 and 1326 will fuel the unjust incarceration of immigrants and leave children permanently scarred by the trauma of separation. For this reason, NIJC has joined a broad spectrum of immigrant rights and criminal justice groups calling for an end to federal prosecutions and the repeal of 8 U.S.C. § 1325 and 1326.

For more information, please contact Jesse Franzblau, Senior Policy Analyst at the National Immigrant Justice Center, by email or at 202-879-4312.