By Amy Silverman
By Olivia LaVecchia
By Monica Alonzo and Stephen Lemons
By Chris Parker
By Michael Lacey
By Weston Phippen
Her husband and two kids are in Orange County, California. Emma came to tend to a sick sister in Mexico and hasn't been able to get back to her family for three years. She says she will keep trying.
"I'm scared," she says. "But my family's there."
Asked whether her treatment was unfair, she says it was.
"We're not criminals," she says. "I don't feel like a criminal."
Though U.S. Department of Homeland Security Secretary Janet Napolitano claims the DHS (of which the U.S. Border Patrol and its parent agency, Customs and Border Protection, are a part) is targeting "criminal aliens" for removal, the Obama administration is creating criminal aliens through Operation Streamline.
Migrants — who once would have been removed from the country through a civil-administrative process and barred from legal reentry — now return home with a criminal record that could expose them to escalating punishment if they cross the border again to escape poverty, find work, and/or reunite with loved ones.
Streamline began as a "zero tolerance" approach to border enforcement during President George W. Bush's administration. Before its advent in 2005, aliens apprehended by the Border Patrol generally were not prosecuted under existing criminal statutes.
Once migrants regularly began receiving criminal penalties for illegal entry, the Border Patrol claimed dramatic reductions in apprehensions in the Del Rio sector, where the program began. In 2006, Streamline started in the Border Patrol's Yuma sector. Laredo, Texas, got it in 2007. And in January 2008, Streamline was initiated in the Tucson sector, where it's estimated that nearly half of all illegal entries now occur.
Now in eight courts along the U.S.-Mexico Border, Streamline operates a little differently in each one. In some jurisdictions — including Yuma and Del Rio — a magistrate may give a first-time offender 10 or 15 days in detention after a guilty plea. The number of defendants seen per day varies, from 20 to 40 in Yuma to 13 to 80 in Del Rio.
Currently, according to federal public defenders working in Del Rio and Yuma, the number of Streamline defendants in court on any given day equals the entirety of the Border Patrol's most recent "catch" for the sector.
Yet the Tucson sector — which in fiscal year 2009 boasted a whopping 241,673 Border Patrol apprehensions of illegal aliens — cannot implement a zero-tolerance strategy when it comes to immigrant prosecutions.
Lack of resources and the infrastructure of the Tucson courthouse have limited prosecutions to precisely 70 defendants per weekday, or about 7 percent of the average of nearly 1,000 apprehensions each weekday.
In testimony before the U.S. Sentencing Commission in January, Tucson Magistrate Judge Jennifer Guerin reported that since its 2008 implementation in Tucson, about 30,000 people had been prosecuted through Streamline.
(The Border Patrol claims that the total number of Streamline convictions has topped 133,000 since the program's 2005 launch, but analysts believe this number is low, and the Border Patrol acknowledges that certain sectors are not included.)
Seventy percent of the 30,000 prosecuted in Tucson had no criminal record and were charged with first-time illegal entry and received time served, Guerin says. The other 30 percent were charged with both felony illegal reentry and misdemeanor illegal entry. These "flip-flops," as lawyers refer to them, pleaded guilty to the lesser charge and received some jail time as part of an agreement with prosecutors.
These percentages are mirrored in the 70 defendants presented at 1:30 p.m. each day in the Tucson court, where the majority are misdemeanors, and the rest are plea bargains.
How does the Border Patrol cherry-pick 70 defendants from the 1,000 people whom agents apprehend each day in the Tucson sector?
Steven Cribby, a Washington, D.C.-based spokesman for U.S. Customs and Border Protection, said the 70 are plucked from those captured in a "target enforcement zone" selected by the Tucson sector chief. Those who meet the Border Patrol's criteria are referred for prosecution. Those who do not are offered voluntary return to Mexico or processed for removal.
But that explanation fails to account for how the Border Patrol neatly delivers 70 bodies a day to the Tucson court — 30 percent of whom are reentry cases and 70 percent of whom are first-timers.
Why not prosecute 70 migrants who have been removed previously? That query makes Magistrate Judge Bernardo Velasco wonder. Velasco is one of the seven federal magistrates in Tucson who hear Streamline cases on a rotating basis.
"[Prosecuting] multiple offenders," says Velasco, "would seem to suggest that we have limited resources and [that] we're going to use our limited resources against multiple offenders. That kind of makes sense. But [the Border Patrol] has chosen not to do that. They think prosecuting first offenders is effective."
Kenneth Quillin, a Border Patrol spokesman in Yuma, says his agency believes Streamline has helped it gain "operational control" over the Yuma sector, because migrants now know there are consequences for crossing illegally.
"I think word got down to would-be crossers," says Quillin, "that if you were to cross in this area, you're going to at least, one, get a charge and, two, spend a little time in jail."
Whether that analysis is accurate, it's interesting to observe the contrast between the Streamline proceedings in Tucson's 414,000-square-foot, glass-and-flagstone Evo A. DeConcini U.S. Courthouse and those that transpire in Yuma's modest, post-office-size federal court.