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In 2005, the Del Rio sector of the Border Patrol, an agency within the federal Department of Homeland Security’s Customs and Border Protection, faced a peculiar issue. With civil detention facilities at capacity and voluntary return to Mexico available only to Mexican citizens, non-Mexican migrants were given a notice to appear in front of an immigration judge and released in the United States.”i In 2004, Border Patrol apprehended approximately 10,000 non-Mexican migrants in the Del Rio sector; just one year later, the figure spiked to 15,000.ii The solution to this enforcement issue, Border Patrol decided, was to circumvent the civil immigration system by turning non-Mexican migrants over for criminal prosecution, a practice until then relegated almost exclusively to cases of violent criminal history or numerous reentries.iii Upon considering the proposition, the U.S. Attorney’s Office for the Western District of Texas responded with one caveat: in order to avoid an equal protection violation, the courts would have to criminally prosecute all migrants within a designated area, not just those from countries other than Mexico.iv

With the signature of Secretary of Homeland Security Michael Chertoff, it was decided to do just that. Starting in December of 2005, “Operation Streamline” required all undocumented border-crossers in the Eagle Pass area of the Del Rio Border Patrol sector to be funneled into the criminal justice system and charged with unlawful entry or re-entry (8 U.S.C. § 1325 or 1326).v Those charged with improper entry usually face a sentence of up to 180 days, and a judge may impose a sentence of over ten years dependent upon criminal Re-entry offenders also face tough sentences, including a felony charge that places up to a ten-year bar on legal immigration.vii

The Department of Homeland Security since has drastically expanded the criminal referral model through similar programs in the Yuma sector in 2006, the Laredo sector in 2007, and the Tucson sector in 2008.viii By 2010, every U.S.-Mexico border sector except California had implemented a “zero-tolerance” program of some sort, the whole of which are commonly referred to by the moniker of the original program— Operation Streamline.ix Depending upon the sector, the degree of implementation may vary significantly. For example, according to Federal Public Defenders in the Yuma and Del Rio sectors, Border Patrol refers nearly 100% of apprehended immigrants in those areas for criminal prosecution.x In the Tucson sector, where greater migrant volume renders such high referral rates logistically unfeasible, the percentage on immigrants “Streamlined” may be closer to 10%, or about 70 of the 800 migrants apprehended each day.xi,xii

The resulting prisoner volume has led the Bureau of Prisons in the Department of Justice to depend upon private prison corporations like Corrections Corporation of America (CCA) and GEO Group. Through increased facility use and contracts for other services, CCA and GEO have enjoyed a combined $780 million increase in annual federal revenues since 2005.xiii In FY2011, the federal government paid immense sums of taxpayer money to private prison companies, $744 million and $640 million to CCA and GEO Group, respectively.xiv Much of this revenue derives from contracts for Criminal Alien Requirement (CAR) prisons, where federal immigrant prisoners are segregated in privately owned, privately operated prisons contracted by the Bureau of Prisons. The terms of CAR contracts include incentives (and sometimes guarantees) to fill facilities near capacity with immigrant prisoners.xv Each year, these companies dedicate millions of dollars to lobbying and campaign contributions.xv

The federal dollars behind immigrant incarceration come at a significant cost to the taxpayer, climbing in 2011 to an estimated $1.02 billion annually.xvi Before the announcement of Operation Streamline in 2005, the federal government annually committed about 58% of that total, or $591 million toward incarcerating immigrants. In 1994, the amount was about $72 million, 7% of its current level.xvii Recent budget proposals indicate that federal spending on prosecution and incarceration will likely increase, as Congress recently stated an ambition to “expand Operation Streamline to additional Border Patrol sectors” alongside a record-setting DHS budget request of $45.2 billion.xix

The sheer volume of immigration cases has also severely burdened the courts in border districts, which have been forced to handle a near 350% increase of petty immigration cases from 12,411 in 2002 to 55,604 in 2010.xix In Tucson, courts may see as many as 200 immigrants lined up for prosecution in a single morning.xx To handle the expanded caseload, the Department of Justice has pursued a combination of resource-intensive options, including privately contracting with defense attorneys, deputizing Border Patrol agents as special Assistant U.S. Attorneys, and bringing several magistrate judges out of retirement. xii Furthermore, Operation Streamline strips Assistant U.S. Attorneys of the power to prosecute the crimes they deem pressing. Immigration cases made up 36% of all criminal prosecutions nationwide in 2011, surpassing drug and fraud prosecutions combined.xiii

Even in Austin—236 miles from the border—Federal Public Defenders, housed under the Administrative Office of the U.S. Courts, reported spending 95% of their time on unauthorized re-entry cases in November of 2011 as opposed to roughly 50% in 2006, before the office added two additional attorneys.xxii The trending development of immigrant criminalization beyond the border threatens to create similar predicaments throughout the United States. According to the Federal Public Defenders,
identification programs like Secure Communities have made federal criminal immigration prosecutions increasingly common. From 2008 to 2011, nonSouthwest-border districts have seen more than double the increase of unauthorized re-entry (8 U.S.C. § 1326) convictions than occurred from 2005 to 2008.xxiii

In addition to draining resources and burdening the courts system, Operation Streamline imposes a devastating human cost, especially upon the Latino community. Latinos now represent more than half of all individuals sentenced to federal prison despite making up only 16% of the total U.S. population.xxiv Increased enforcement measures also drive migrants to employ the services of professional smugglers and to attempt crossings in more obscure and dangerous areas.xxvii As a result, immigrant fatalities along the border have become increasingly common, reaching totals more than four times those in 1995.xxvi

Still, considerable support for Operation Streamline persists behind a belief in the efficacy of a deterrence mindset. The Senate Appropriations Committee, for example, points to “a notable reduction in attempted illegal crossings” in the districts in which Operation Streamline is “robustly in effect.”xxvii Indeed, border apprehensions have fallen by a dramatic 725,649 from 2005 through 2010, but decades of research indicate that economic forces—particularly shifts in employment and real wages—are the actual drivers of immigration trends, and the recently weakened condition of the U.S. economy is no exception.xxviii Many within the judicial community agree. U.S. District Judge Lee Yeakel pointed out in a November 21st sentencing hearing that, “This court has yet to find an adequate sentence that will act as a deterrent for those reentering the country illegally.”xxix Unfortunately, the struggling U.S. economy allows for the misrepresentation of border enforcement “success” at a time when shrewd allocation of federal resources is most crucial.

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