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The streamlined court system that allows the government to charge migrants en masse had its own day in court Monday. The 9th U.S. Circuit Court of Appeals heard arguments in two separate cases challenging the legality of Operation Streamline.
In April 2018, then-Attorney General Jeff Sessions announced a zero-tolerance policy across the U.S.-Mexico border and mandated that prosecutors try to charge everyone caught crossing illegally with a crime.
The decision to criminally prosecute virtually every person caught entering the country illegally became the federal government’s justification for separating families last summer. Parents were being prosecuted for a crime and thus, the government reasoned, their children could not accompany them during the process.
In a matter of months, the U.S. attorney’s office in San Diego prosecuted thousands of illegal entry misdemeanors – far more than prosecuted had filed in years. Previous U.S. attorneys had focused mostly on prosecuting felony cases against those who’d been deported multiple times or who had serious criminal records. The surge in misdemeanor prosecutions that came as a result of the new policy caused chaos and infinite problems in San Diego’s federal courts.
Attorneys in San Diego resisted Operation Streamline fiercely.
The Federal Defenders of San Diego, who take on the bulk of pro-bono federal criminal defense, filed several legal challenges to Operation Streamline.
On Monday, only about 10 illegal entry misdemeanors were heard in the separate, streamlined courtroom in San Diego – a far lower number than last summer.
While the misdemeanor prosecutions for illegal entry have been rolled back significantly in San Diego, the lawsuits could vacate previous convictions and even impact prosecutions elsewhere along the border.
One of the lawsuits alleges the separate court system set up by Operation Streamline violates the Constitution’s equal protection clause. Another challenges the idea that guilty pleas under the system are knowing and voluntary.
The 9th Circuit heard arguments in both cases Monday afternoon.
In the first case, San Diego Federal Defenders attorney Kara Hartzler compared the inequity Operation Streamline defendants face to inequal segregated school system that Brown v. Board of Education determined was unconstitutional.
“This ‘Streamline court’ separates a disfavored class of defendants on the basis of alienage, national origin, and race,” Hartzler wrote in her appeal to the 9th Circuit.
Hartzler laid out how the Operation Streamline defendants have been treated differently than other defendants.
“They are arrested, detained, shackled, convicted and served jail time, while other misdemeanors are cited, released, given an alternative disposition, and serve no jail time,” Hartzler told the 9th Circuit panel Monday. “[Illegal entry] defendants are even treated worse than felony defendants, who are brought to court a day earlier and do not meet their attorneys while they are shackled and in the presence of law enforcement.”
Assistant U.S. Attorney Benjamin Holley argued that the separate court system is legal because it doesn’t segregate defendants by race, nationality or class.
“The only way this court gets to the equal protection arguments is if they find a suspect class was discriminated against,” Holley said. “The court isn’t based on alienage, it’s based on the charge.”
In the second case, Hartzler argued that Streamline defendants were held in conditions so terrible that they were essentially coerced into pleading guilty in order to escape them. Therefore, those pleas shouldn’t be considered knowing and voluntary, she said.
Migrants charged with illegal entry in the streamlined courts were held in Border Patrol stations, and many described in declarations being crowded into a single cell with more than a dozen people, rooms that are cold with the lights on 24 hours a day, and inadequate access to food, hygiene and medical care.
“This was three days in a row where people didn’t have their basic humans being met,” Hartzler said Monday.
Hartzler said one magistrate judge handling Operation Streamline cases said he didn’t want to hear complaints about people being hungry or tired. Hartzler said she believes it is a legal error not to recognize that a lack of food or sleep could render someone incompetent for the purpose of entering a plea.
Hartzler pointed to a study in which 80 percent of Operation Streamline defendants surveyed said they did not understand that they would receive a conviction at the end of the process and that a majority thought they were in immigration proceedings – not in criminal court.
Holley, the government lawyer defending the system, said judges should take the defendants at their word.
“The magistrate judge is not required to be a detective to not take both defendants and their counsels’ answers at face value,” Holley said.
In addition to the two cases that came before the 9th Circuit Monday, other legal challenges to the separate court system for illegal entry misdemeanors are pending.
The federal government has appealed another case that was already decided by the 9th Circuit in July, which paved the way for hundreds of convictions made under Operation Streamline to be potentially overturned.
The panel of judges in that case determined that prosecutors had improperly charged a migrant, Oracio Corrales-Vazquez, with a crime he hadn’t actually committed.
The criminal statute allowing people to be charged with illegal entry has multiple components that outline various scenarios. One is that a person enters or attempts to enter the United States at any time or place other than those designated by immigration officers. Another is that they elude examination or inspection by immigration officers. A third is that they enter or attempt to enter the United States by willfully misleading an immigration officer or concealing information from them.
Since zero tolerance began in April 2018, federal prosecutors in San Diego mostly charged people by saying they had eluded examination or inspection by immigration officers.
Corrales’ attorney argued that his client couldn’t be charged with that crime because eluding examination or examination could only occur at “places and times designated for examination or inspection by immigration officers,” like a port of entry. Corrales did not enter the United States through a port of entry.
The 9th Circuit agreed. The ruling gave those who did not seek an appeal the opportunity to have those convictions vacated, which would undo the vast majority of the illegal entry convictions secured by the U.S. attorney’s office in San Diego.
In documents submitted in November to appeal that decision, the federal government argued that the 9th Circuit’s decision could jeopardize border security.
“The panel’s decision — unless corrected — will result the immediate dismissal of hundreds of criminal convictions currently being stayed,” the U.S. attorney’s office argued. “It will also complicate the government’s ability to prosecute future illegal entry offenses along the southwest border.”
Prosecutors also argued that prosecutors in Arizona had been using the statute the same way, but ultimately had to correct the record when it became clear that Arizona was actually using a different part of the statute.