Operation Streamline prisoner. (Image: Lawrence Gipe)
The US is breaking deportation records, despite cost overruns, judicial inefficiency, due process and human rights violations and a Democrat in the White House. Will four more years of Obama change the immigration system built to jail or deport first, ask questions never?
Rivas Aguilar stood in the federal courthouse in Tucson, Arizona, hands and feet shackled to waist, his belt and shoelaces confiscated.
"With all due respect, your honor," he said, "I don't know where to go."
"I have no family in Mexico," he said in West Coast, American English. "It's hard for me not having my family next to me."
"I can't imagine how you must feel," said magistrate Jacqueline Marshall. Aguilar was one of 70 she would sentence by the end of the day. "Any of us here in this room who are US citizens, by the grace of God, if we would've been born 60 miles [south] we would be in Mexico as well."
"We would find ourselves just like you," Marshall said, looking out over a crowd of defendants, their lawyers, guards, journalists, activists - and no jurors. Despite her personal sympathy, duty compelled her. "You have to decide what's more important to you: Living free in Mexico or living in prison in the US."
"This is my country," Aguilar said, his voice emotionally shaking. "I would give my life...."
The judge cut him off.
"I wish you the best of luck, but there is no one in this room that can help you," she said before sentencing Aguilar to 105 days in jail and deportation.
His chains clanged as he shuffled out of the courtroom, just as the next group faced the judge. The process repeated until the room emptied the defendants off to jail or Mexico, leaving only the faint odor of old sweat.
When migrants are caught in the Sonoran Desert, Customs and Border Protection (CBP) detains them for one night, often in inhumane conditions according to a No More Deaths report. Without a shower, they are shackled and bused to Streamline the next morning in Tucson's federal courthouse. Border-wide, Streamline courthouses have sentenced 61,990 defendants in 2011, according to a Grassroots Leadership report.
"People are brought to the courtroom in the very same clothing that they may have walked across the desert, as well as traveled through Mexico to get to the border," said Heather Williams, head of Tucson's federal public defenders. "The clothing just sort of sits on people, it hangs from people, especially when [Border Patrol] takes away peoples' belts and their shoe laces."
Migrants sit in a type of legal purgatory between criminal and civil laws. The US Constitution accords everyone inalienable rights, citizens or not, and so migrants are entitled to a trial by jury, to be considered innocent until proven guilty, and to remain silent, subpoena witnesses and present a defense. Under US law, migrants are not "illegal," because crossing the border isn't a crime.
"Deportable aliens are brought before a judge, where they have the opportunity to contest their deportation and they do have the right to access to legal counsel," said Jack Martin, special projects director for the Federation of American Immigration Reform (FAIR), a conservative think tank. "The experience of Operation Streamline is that, because of the fact that if [migrants] are going to contest it they will be held for a long time, none of them have in effect challenged their deportation."
Martin said Streamline was designed specifically to alter migrants' legal status. "When they were deported, it was to make re-entry a felony."
In other words, Streamline turns trespassing across an international border into a criminal violation for the first time in US history.
"It was to up the ante," he said. With other programs like Operation Gatekeeper, Barack Obama has used Streamline to deport more people than any president since Dwight Eisenhower with his militarized Operation Wetback.
In the morning, before sentencing, defendants like Aguilar are introduced to one of 15 to 20 lawyers for "quasi-private" consultations that occur in the same large hall where they'll sit, wait for, and receive sentences. Attorneys are assigned three to six defendants a day in Tucson, but in other courts in Texas and western Arizona (which still hold mass sentencings), lawyers represent between seven and 50 a day.
Lawyer-client privilege is either suspect or non-existent, Williams said, because guards patrol the room during these consultations.
"We hope that we have a half-hour to explain to our clients all the information about their rights, about their charges, about the possible punishments - but we have concerns," Williams said. High caseloads, lack of due process and the burden of proof could infringe on judicial independence and impartiality and risk lawyers' health, she said.
"Critics say it's being run like a mass operation that tramples on the rights of the aliens," Martin said. "But I think the other point of view is that as long as the aliens have the opportunity in the proceedings to question their deportation and ask for a full-scale hearing, an individual hearing, and have the opportunity to have legal counsel, it basically doesn't make any difference if it's an individual or a dozen, or two dozen individuals before the judge."
When Streamline first came to Tucson in 2008, assistant federal public defender Jason Hannan sued the federal government, charging the system breached Fifth and Sixth Amendment constitutional rights. In response, the process was altered. However, while judges now see groups of five, instead of sentencing everyone at once, the system remains "separate and unequal," said Hannan, referencing Jim Crow laws.
"They are not doing Streamline on anyone else but Mexican citizens. It is shocking and it is appalling and it is disgusting. Underlying it is xenophobia and racism and disregard of rights of people that fit a general description," said Hannan, who, after his Streamline suits and 14 years in Arizona, is now a deputy federal public defender in Los Angeles.
The courtroom is relatively quiet during the consultations, but for the clinking of the defendants' chains. After migrants' rights under the US Constitution are explained, lawyers recommend they plead guilty to a lesser offense with less jail time. Then the judge enters and the efficient hearings begin. Five defendants every 15 minutes. Seventy sentencings by the end of the day.
Streamline follows "a sort of script," Williams said. Defendants say "presente" when their names are called, "sí" when asked questions, and "culpable" meaning "guilty" at the end. The judge quickly asks each defendant if they will give up their constitutional rights - everyone has so far.
In Tucson's courthouse, defendant Fabiana Ramos says she felt "confused" and voiceless.
In her first experience with any justice system, Ramos said her role was simply to utter "culpable."
"They are just going to tell you what you have to say, what's in your best interest to say," she said. "It was in my interest to say I was guilty, and that I accepted the [jail] time they gave me. And that's it. That's all they tell me. It was about 10 minutes, more or less."
While exact statistics are unknowable now - they remain unreleased by border agencies - people slip through these rapid-fire consultations, unable to understand Streamline's ramifications: People who speak neither English nor Spanish, but rather indigenous southern Mexican and Central American languages, the mentally deficient, minors and the very sick.
Sick defendants might not grasp their rights due to pain or disorientation, but Streamline's speed also endangers lawyers. "Cursory" medical screenings in Border Patrol custody could have exposed lawyers to infectious diseases like tuberculosis, H1N1, meningitis or encephalitis reportedly found in defendants post-deportation, Williams said.
"It wasn't justice - it was unjust. It was something I wouldn't wish on anyone, not even on people who were actual criminals," Ramos said. "It's something you don't wish on anyone, least of all those of us who are migrants."
Success, Expansion and Costs
Despite costing the government $1.3 billion last year for incarceration, Streamline is a success, according to enforcement agencies and Janet Napolitano, head of the Department of Homeland Security and Arizona's former governor.
The border is safer today because of it and other initiatives, according Napolitano's testimony before Congress. Apprehensions of immigrants were down by two-thirds in this century's first decade, according to DHS statistics. At the same time, seizures of weapons, counterfeit currency and drugs were up.
But the drop in apprehensions and crossings isn't necessarily a result of Streamline. The recession, particularly in the construction industry, made crossing less attractive, according to the Grassroots Leadership report.
Arizona senators John McCain and Jon Kyl have called Streamline a "highly effective deterrent" to migration, and called on Congress to expand the program to start sentencing - and criminalizing - all of the nearly half-million apprehended migrants in the US.
Enlarging Streamline would work, but it would cost, said FAIR's Martin.
"Expansion is resource-intensive in terms of availability of immigration judges to hear the cases and order the deportation of those individuals," Martin said. "In a period of time of fiscal constraint because of the financial crisis, that has limited the ability of Homeland Security to expand that program."
Streamline's three main costs - hiring lawyers and guards, hiring border agents and imprisonment - have yet to be calculated nationwide, despite orders from the Department of Justice to do so.
More is known locally. Williams, the federal defender, estimates that in Tucson alone, hiring lawyers and guards costs $2,890,476 annually. Since 2008, detaining just Tucson's migrants cost $52.5 million, according to the Berkeley Law report, "Assembly-Line Justice."
Dollars spent on Streamline mean other cases go unprosecuted. According to the report, instead of drug cartels or other serious offenders, Streamline disproportionately targets people with no criminal history. Judges, US Marshalls and defense attorneys also have been hit with "unprecedented caseloads."
Between 2002 and 2008, immigration-related offenses increased 330 percent. Some federal judges reportedly spend 60 percent of their time on Streamline cases.
The increase in people going through the judicial system also means more people in jail, and surges in transient populations in border towns, with costly results.
Prisons overcrowded with Streamline defendants rioted earlier this fall; and massive influxes of deportees have fueled the destabilization of cities on the southern side of the border. Infamous for violence, border cities like Tamaulipas and Juarez have been fundamentally altered in Streamline's wake.
Ramos sat in Nogales, Sonora, one of the border city's thousands of new arrivals. About half a mile from the border, she was rubbing her wrists, remembering the handcuffs. Ramos spoke about poverty pushing her to leave home in central Mexico and cross a dangerous desert. Her mother, husband and child seem impossibly far away, on the US side of a 30-foot fence visible from her temporary bunk at the San Juan Bosco shelter.
"What they are doing to us is injustice," Ramos said. "That's not the way you have to treat us - because we are human beings."
She was jailed for more than three months after Streamline. Then she was again put on a bus, driven south through the Nogales border crossing, and left in Mexico, with scant possessions and no hope, thousands of miles from home and family.
"We understand," she said. "We understand with words, not mistreatment."
Ramos is heading back to Tlapanala, in the state of Puebla, 1,480 miles down into Mexico. Not wanting to be Streamlined again, she is giving up trying to reunite with her child, husband and mother. Ramos is going back to Puebla. According to its "consequences-based" design, Streamline has worked on Ramos.
"Yeah, we made a mistake, but it's no reason to treat us like that, to handcuff us, to mistreat us, to put us there uncomfortably, even injured from the handcuffs," Ramos said.
"You treat people like that in the criminal justice system, and it turns around and treats you that way," said Hannan - warning that US citizens could eventually face rapid mass-sentencing. "It will come back to bite you even if you don't care about these people."
The legal innovation it represents - denying Constitutional rights with efficient programs targeting vulnerable populations - has grave consequences for us all.
"I would call it an infection," Hannan said. "It's already infected the system."
Reporter Murphy Woodhouse contributed to this story.