Mario Chavez, a US citizen, shares a moment with his wife, Lizeth Chvaez, a Mexican citizen, through the border fence at Playas de Tijuana.

© 2008 David Maung

(Washington, DC) – A proposed United States Senate resolution to support the criminal prosecution of migrants in mass, rapid-fire hearings would perpetuate unfair processes, at great human and financial cost, Human Rights Watch said today.

Senate resolution 104, scheduled to be considered in the Homeland Security and Governmental Affairs Committee on July 29, 2015, states that the program, called Operation Streamline, has been a success and that refusing to prosecute “first-time illegal border crossers” would undermine that success.

“Operation Streamline is an unproven, wasteful program that has criminally prosecuted tens of thousands of unauthorized migrants each year,” said Grace Meng, senior US researcher at Human Rights Watch. “Many are convicted of a federal crime for wanting to return to their families or for fleeing persecution and seeking refuge.”

Under Operation Streamline, dozens of defendants at a time are charged, plead guilty, and ultimately convicted and sentenced of the federal misdemeanor of illegal entry, all within a matter of hours and sometimes even minutes. US Customs and Border Protection claims that the program reduces recidivism by deterring migrants from trying to enter the US illegally again. Although the program was originally touted as a “zero-tolerance” program, the Border Patrol sectors in which Operation Streamline is currently active have differing policies as to which unauthorized migrants should be criminally charged and which should go through the usual administrative removal process.

Senate resolution 104 appears to respond to reports in September 2014 that in Yuma County, Arizona, the US Attorney’s Office is no longer prosecuting first-time border crossers, but focusing instead on those who have previously been removed administratively, a policy similar to those in other areas.

The resolution, in contending that Operation Streamline has been a success, disregards the findings of a Department of Homeland Security Office of Inspector General (OIG) report released in May. The report raised serious questions about the border agency’s data and its claims of Operation Streamline’s effectiveness, as well as citing its significant cost.

The inspector general found that while numerous agencies – including the US Attorney’s Office, US Marshals, Bureau of Prisons, US Immigration and Customs Enforcement, and the federal courts – incur significant costs to carry out Operation Streamline, Border Patrol does not track how much is spent on Operation Streamline. As a result, the report concluded, Border Patrol cannot determine whether Operation Streamline or some other action – such as straight deportation – “is appropriate given existing resources.”

The inspector general further found that Border Patrol regularly refers migrants to the criminal prosecution program even though they say they fear they will be harmed if they are returned to their home countries. As Human Rights Watch pointed out in a 2013 report, such prosecutions violate US treaty obligations under the 1967 protocol to the International Refugee Convention.

Operation Streamline has contributed to the steep rise in federal immigration prosecutions, which in 2014 made up 40 percent of all federal criminal cases. The vast majority of these prosecutions are for illegal entry and reentry, which are the most prosecuted federal crimes.

Immigration offenders now make up 30 percent of people entering the federal prison system, which increasingly contracts with private prison companies to hold non-citizens convicted of these offenses. Some, like former Arizona Attorney General Terry Stoddard, have criticized immigration prosecutions, saying that they draw resources away from deterring organized crime and other issues that more seriously affect border security.

“The Senate resolution goes counter to the growing bipartisan recognition that the US needs to reduce the number of people in federal prison,” Meng said. “Rather than affirm Operation Streamline, the Senate should reexamine and end a program that essentially treats migrants as criminals.”