On a recent weekday, seven men shuffled wearily into the San Diego federal courtroom that serves a singular purpose: to hear misdemeanor charges of illegal entry.
The day before, it was nine.
One year after the Trump administration launched its zero-tolerance policy, the special criminal court that once processed an average of 50 unauthorized immigrants per day has dramatically slowed pace.
Court calendars that sometimes stretched into the evening can now take under a half-hour.
Some days, there aren’t any defendants to process at all.
The decrease does not appear to be tied to a change in philosophy, or to the number of adults traveling without children apprehended at the border. In fact, such apprehensions along the California-Mexico border have risen over the past few months, yet only a fraction were prosecuted with misdemeanor illegal entry in March.
Instead, the vast majority were routed directly into the civil immigration system to navigate separate legal processes including deportation and asylum claims.
Border Patrol officials say they are being pulled away from other duties — including forwarding cases for criminal prosecution — because they are “overwhelmed” by the surge of asylum-seeking families and unaccompanied children crossing illegally.
“Due to this humanitarian and border security crisis, San Diego Sector’s resources are devoted to the care and processing of these individuals, impacting our ability to carry out our law enforcement mission,” said Border Patrol spokesman Agent Justin Castrejon.
Rather than take the extra time needed to document an apprehension for prosecution and get them to court, he said agents are instead being pulled more into supportive roles, including medical care, transportation, food distribution and medication management.
Nonetheless, Castrejon said the illegal entry prosecutions remain “a top priority for the sector.”
Attorneys who represent the migrants have been told to expect the numbers to stay low through May.
The U.S. Attorney’s Office in San Diego declined to comment.
The government doesn’t appear to be following any particular pattern when it comes to deciding which migrants to prosecute.
On any given day, there are people with criminal rap sheets and prior deportations, and people with no past arrests or immigration history. There are Central Americans, Cubans, Mexicans, Indians. Some planning to seek asylum, others here to work or join family.
“It’s a real hodgepodge,” said Kara Lee Hartzler, a federal defender in San Diego.
Those who are prosecuted are in a worse position than if they’d just been handed to the civil immigration system. A criminal conviction, even a misdemeanor, hurts their chances of legal entry in the future.
And that’s the point.
When then-Attorney General Jeff Sessions first announced a zero-tolerance policy last April, he intended the policy to be truly zero tolerance — every single person who crossed the Southern border illegally would be prosecuted with a crime.
It was a departure from how other administrations had dealt with illegal immigration, prosecuting only repeat offenders or border crossers with serious criminal records. Most others would avoid a criminal charge and be processed in the civil immigration system.
A criminal conviction would act as a deterrence to future illegal entry, Sessions argued.
But expectation never became reality. When the policy was rolled out in earnest in May, the ramped-up prosecutions immediately stretched government resources.
To handle the influx of cases, the special court in San Diego was born, nicknamed “Operation Streamline” after similar fast-track criminal immigration courts along other parts of the border.
Unauthorized immigrants would be held at Border Patrol stations — sometimes for days — before being transported for their court hearing. They would be given little time to speak with their appointed attorney, and most would be allowed to plead guilty that same day for a time-served sentence. Then they were turned over to the civil immigration system.
The San Diego district court determined it could take a maximum of 50 prosecutions per day.
Court hearings became particularly acrimonious, with defense attorneys repeatedly arguing that due process was being violated on several grounds. The defense bar had its own nickname for the court: “Operation Steamroll.”
“In the very beginning it was a very hostile environment,” recalled attorney Michael Littman, who frequently defends illegal entry cases. “We were charting new territory.”
A key element of zero tolerance was family separation, a result that Sessions said was unavoidable as parents went to federal criminal custody.
The American public didn’t have the stomach for it, and Trump signed an executive order on June 20 ending the practice. Six days later, U.S. District Judge Dana Sabraw in San Diego issued an order that required families to remain together during the civil immigration process if desired and also demanded the government offer reunification to the 2,800 children still in government custody.
After that, “Streamline” cases focused on adults traveling without children, although a small number of parents who crossed with children have also been prosecuted, lawyers say.
Along the southern California border, prosecutions didn’t slow down. In August, the government filed more than 1,100 cases, according to a Union-Tribune analysis of court records.
But the number of defendants has since slipped.
In January, the Department of Justice filed 875 misdemeanor illegal entry cases for the month. The number fell to 654 in February and 615 in March.
If all of the misdemeanor prosecutions in March were of single adults, that would represent roughly 10 percent of the total apprehensions for that group, according to Border Patrol data for the San Diego and El Centro sectors.
The downward trend is expected to continue this month.
The hearings today also don’t resemble those from a year ago.
The courtroom atmosphere has substantially mellowed, after the magistrate judges decided in September to do away with same-day pleas and give clients and attorneys five days to confer about legal options.
Even with the recent reprieve in workload, the past year has left many in the federal justice system stretched thin, lawyers say.
“It has exhausted the resources and put extreme time constraints on everyone involved,” Littman said.
To manage resources, the court has currently capped illegal entry cases at 40 on Mondays — usually the busiest days due to weekend apprehensions — and 24 for other weekdays.
Much of the defense bar’s fight has since moved to the 9th U.S. Circuit Court of Appeals, where attorneys are attacking some of the main underpinnings of “Streamline.”
One case argues that the conditions at Border Patrol stations are so bad that many migrants were not able to knowingly and voluntarily plead guilty.
The defendant, an 18-year-old woman from Mexico was arrested on a Friday, meaning she had to spend all weekend at at station before her Monday court appearance. She said she was given little to eat — juice, crackers and the occasional burrito — not allowed to shower or brush her teeth, kept in a frigid cell known as an “hielera” or “icebox,” and given a thin mat and foil blanket for sleep while the lights glared through the night.
By the time she met with her lawyer and was presented the option to plead guilty, she was bleary eyed, “crying and could barely speak,” according to Hartzler.
She told the lawyer: “I have never wanted to go home more in my life.”
Hartzler argues the judge did not inquire further into the conditions at the station and whether they might have affected her mental state, as he was required to.
An attorney for the government has argued that the defense attorney’s objections were too generalized during the plea hearing and that the judge made the proper inquiries.
Defendants are no longer offered same-day pleas, and after their court hearings they are transferred to detention facilities equipped for longer-term stays, making this a moot issue for current cases.
Another appeal argues that the “Streamline” court has resurrected the notion of a separate but equal system, the same kind of system at the center of the landmark Brown v. Board of Education case.
Illegal entry cases are heard separate from all other misdemeanor federal cases, which often involve fines and deferred prosecution agreements.
The U.S. Attorney’s Office called the claims “meritless” in a brief, saying the defendant in this case was granted “the full panoply of rights afforded all criminal defendants.”
Many have questioned the effectiveness of misdemeanor prosecutions to deter illegal immigration.
Last week, one young Mexican man appeared before a judge just days after pleading guilty to entering illegally the week before. The court record is rife with similar instances.
It underscores the pull that the United States continues to have for many migrants — whether it is the promise of work, U.S. citizen children, or other ties.
“For people who have families here, I’m not sure what sentence would send the message for them to stay separated from their families,” said Littman.
On the other hand, he has seen it have an impact on some migrants. “Sometimes one stint in jail is enough to turn them around.”
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