Wall Street Journal
By Miriam Jordan
April 23, 2013
The Senate immigration bill introduced last week calls for tripling the number of criminal prosecutions of migrants who illegally enter the U.S. along the busiest border area, but the court that handles cases there already has an overloaded docket and a chronic shortage of resources.
Before 2005, migrants apprehended by U.S. Border Patrol were returned to their country or processed through civil immigration courts. As part of George W. Bush's strategy to get tough on border policy, he launched a program dubbed Operation Streamline mandating that those arrested for unlawful entry would be prosecuted in criminal court and, if convicted, face a prison sentence.
First-time crossers face criminal misdemeanor charges, punishable with up to 180 days in prison; repeat offenders face felony charges and longer sentences.
Tucked in the current Senate bill, the provision calls for the U.S. District Court in Arizona to bolster the program. If enacted, the bill would increase the number of individuals who face prosecution for sneaking into the U.S. along a 262-mile rugged desert swath of Mexico's border with Arizona—from the current 70 a day to 210. The bill would allocate $250 million over five years to the Tucson U.S. Attorney's Office, additional magistrate judges, the public defender's office and the marshal's office to achieve that goal.
"Operation Streamline is the most effective deterrent program DHS runs, so it's an important element of the border security provisions in the bill," said Brian Rogers, spokesman for Sen. John McCain (R., Ariz.), who is in the bipartisan group that drafted the bill.
U.S. Border Patrol officials say the program has discouraged potential migrants from attempting illegal crossings. In seeking congressional support for Streamline in 2012, the U.S. Department of Homeland Security said, "the deterrent effect…has had pronounced results on the number of aliens attempting illegal entry/re-entry."
Critics say Streamline is expensive, diverts limited resources from core law enforcement priorities, strains U.S. courts and prisons, and undermines the due process of immigrants. They say it creates criminals by prosecution.
Although Streamline covers much of the Southwest border, the bill doesn't call for bolstering it in other heavily trafficked border regions, such as the Rio Grande Valley of Texas. Representatives for Mr. McCain and fellow Arizona Republican Sen. Jeff Flake, who also helped write the bill, said the senators wouldn't oppose expanding the program elsewhere.
Streamline has already overwhelmed many border courts in New Mexico, Texas and Arizona. The bill doesn't address the backlog of criminal cases in the District Court of Arizona, where the chief judge declared a judicial emergency in 2011 to secure more time to tackle the caseload.
Critics say Streamline's effectiveness is hard to measure. Apprehensions of immigrants, a key indicator of the flow across borders, are at a four-decade low, according to federal data. However, many economists and border experts believe the economic slowdown and drug-cartel violence along the border are leading reasons behind the steep decline.
"Streamline picked up just as the economy tanked," said Joshua Breisblatt, a policy expert at the National Immigration Forum, an advocacy organization.
Because some people migrate for economic reasons, "we can't say Operation Streamline's ability to give someone a prison sentence is the sole determining factor, when the decision is much more complex," said César García Hernández, a law professor who specializes in immigration and criminal law.
As the Obama administration has pushed for immigration overhaul, it has continued to implement the program. While Streamline's deterrent value may be hard to measure, its costs are estimated to exceed $1 billion annually, according to experts.
Immigration has surpassed all other areas of federal prosecution. In 2010, there were 28,687 immigration felony prosecutions, compared with 15,997 in 2003, according to the Bureau of Justice statistics. About 36% of all federal criminal prosecutions were immigration-related in 2011,according to the Administrative Office of the U.S. Courts. That exceeds drug and fraud prosecutions combined. Of the immigration-related cases, 84% were for illegal reentry.
"Not since Prohibition has a single crime category been prosecuted in such numbers by the federal government," said Ingrid Eagly, a law-school professor at the University of California, Los Angeles who has studied the program.
Streamline often involves collective hearings in which several defendants enter guilty pleas and receive sentences quickly, prompting Ms. Eagly and others to say the policy promotes assembly-line justice.
Critics also say the limited resources should go toward fighting hardened criminals. "It's misdirected to throw money at simple immigrants" seeking work, said Regina Jefferies, chair of the Arizona chapter of the American Immigration Lawyers Association. "They should be focusing on drug smugglers and other serious criminals."
Separately Tuesday, a political group backed by Facebook Chief Executive Mark Zuckerberg launched a seven-figure ad campaign to give air cover to Republicans who support an overhaul of immigration laws.
The nonprofit group, called FWD.us, was created recently by tech-company leaders to push for changes to immigration, education and other policies. Its new ads appear aimed at primary voters who might turn on GOP lawmakers who support citizenship for illegal immigrants. A pathway to citizenship is one element of a bipartisan immigration bill now before the Senate.