Illegal immigrants wait to be transported to a central processing center shortly after they crossed the border from Mexico into the U.S. on March 26, 2018. (Loren Elliott/AFP/Getty Images)
Criminal charges against migrants entering the U.S. illegally have spiked in California since the Trump administration adopted its zero tolerance policy in the spring.
The increase in cases has led to dramatic changes in the federal court that handles them -- changes defense attorneys say violate the due process rights of undocumented immigrants.
The U.S. Attorney's Office for the Southern District of California went from bringing 50 charges for illegal entry each month to prosecuting more than 150 cases a week, according to the Federal Defenders of San Diego, the publicly funded agency that represents many migrants in criminal proceedings.
The jump in cases has filled federal jails along the border and forced some court proceedings to last late into the night. To cope, in July the federal district court in San Diego agreed to a Justice Department request to designate a separate courtroom where judges could arraign and sentence the migrants in a single day.
These speedy mass hearings, better known as Operation Streamline, were adopted in other southern border states starting in 2005. The federal court in San Diego was the lone holdout until early July, when the changes took effect.
“You are entitled to due process,” said attorney Leila Morgan. “It's not just about what's fast and what's easy.”
Before Operation Streamline, Morgan said migrants rarely faced charges for entering the U.S. illegally and usually only if they had a serious criminal history. The court proceedings, from charging to sentencing, could take a couple of weeks. Now all of that happens in a single day.
The Federal Defenders, who normally decline to go on the record, allowed KQED to follow a group of staff attorneys through a day of proceedings in the new court.
A Day in Defense of Migrants
Leila Morgan, Ben Davis and Roxana Sandoval are part of the team within the Federal Defenders office dedicated to handling the increased caseload.
8:40 a.m.: Case Assignments
First thing Monday morning, Morgan, Davis and Sandoval were waiting to receive an email from the court assigning them cases.
“Sometimes we wait, and sometimes we go get coffee,” Morgan said.
They opted for java, but a couple of blocks out, Morgan exclaimed, “Guys, we got our email!”
All three attorneys were soon scrolling through a list of cases on their smartphones. Morgan counted a total of 50 defendants. Each defender was assigned four cases, and the remainder went to private lawyers who also represent migrants who can’t afford their own attorneys.
As Davis dashed into a store to buy bottles of water, Morgan and Sandoval joined a half-dozen people lined up to enter the courthouse. U.S. marshals were expected to bring the defendants to meeting rooms, and the attorneys wanted to be there, waiting.
9:30 a.m.: Meeting With Clients
“Monday is the busiest day,” Morgan explained, “because it’s everyone who was arrested from 6 a.m. Friday morning until 6 a.m. this morning.”
The defense attorneys would get just 45 minutes to interview each person they'd represent later that day in court.
“That’s not very much time, when you think about everything we have to accomplish,” Morgan said.
After three hours, Morgan and Davis emerged from the courthouse looking a little worn. Declining to talk about the specifics of their cases for confidentiality reasons, they said the types of cases were “fairly typical.”
Also typical: The U.S. attorney had offered to release most of the clients if they would plead guilty to a misdemeanor charge of illegal entry. Most of the defendants opted to do so in order to get out of jail. Then they would most likely be transferred to the custody of U.S. Immigration and Customs Enforcement for deportation.
“It's mostly folks with minimal or little criminal record, minimal or zero deportation history either,” Davis said. “They're people who just a few months ago would have been processed for deportation and told, 'You know, you can't be in the country.' But now they're trying to give them criminal convictions that can affect the rest their lives.”
Davis doubted whether his clients understood that they were being criminally prosecuted or that a guilty plea could prevent them from ever returning to the U.S. legally.
12:45 p.m.: Lunch at 'The Sandbox'
The attorneys have roughly an hour each day to eat lunch, which they usually do together at a table in a dusty yard between the courthouses they affectionately call “The Sandbox.”
The lawyers have developed a practice of raising objections to the judge at every possible opportunity. It’s a way to put into the court record their belief that the expedited hearings violate their clients’ rights. At lunch, they strategized about how to do that without running afoul of the judge’s rules.
“Ultimately, I think we have to obey the protocol or be held in contempt,” Davis said.
Lunch also served as a time to blow off steam.
Davis pushed a bag of M&M cookies out of reach, exclaiming, “Get those away from me!”
“We do a lot of eating our feelings," Morgan said, laughing. She and her colleagues say they find Operation Streamline discouraging and unjust.
After an hour, the defenders swept up their lunch trash and headed to court.
2 p.m.: The '1325' Court
Courtroom 2A is on the second floor of a squat cement building with tinted windows and bare of decor. Every afternoon from 2 p.m., the presiding judge hears only one kind of case: misdemeanor charges against migrants for illegal entry into the United States. Defense attorneys call it the “1325” court, for the section of the federal statute that sets out charges and fines for the crime.
A group of magistrate judges rotates through 2A. On the day KQED observed, Judge Barbara Major presided.
“Each of you are here because the United States has charged you with the misdemeanor crime of improper entry by an alien,” Major told a group of defendants sitting in a jury box, shackled at the ankles.
Over the course of the next three hours, Major arraigned, sentenced and set bond for about a dozen people at a time. The Federal Defenders raised objection after objection.
At one point, Sandoval objected to a new rule judges have implemented that limits motions by defense attorneys.
“I understand the court’s orders that we're not allowed to raise motions,” Sandoval said. “And if we would like to ...”
“You are allowed to,” Major responded. “You just have to do it in writing. And it can't be today. I'm not going to get through my criminal calendar as it is.”
Under the new system, federal marshals bring migrants to the court directly from Border Patrol stations, where many detainees say they do not get enough food or sleep.
Sandoval questioned whether the conditions of her client’s confinement could be a form of coercion, pushing him to plead guilty.
To which Major, clearly exasperated, said, “Stop! Which one? Does he want to plead guilty today?”
“He does,” Sandoval said. “But I just haven't had ...”
“OK,” Major interrupted. “Then we're good.”
Major decided to hold Sandoval's two cases over another day. She said she could not accept a plea unless it was made willingly and knowingly.
Around 5 p.m., Judge Major announced that the court had run out of time and she would carry over the cases of roughly a dozen defendants. These clients would spend another night in jail.
6:30 p.m.: Regroup at the Federal Defenders Office
Morgan, Davis and Sandoval retrieved their belongings and headed for home.
Davis left to help his wife, who was taking care of their newborn.
Morgan needed to get home to her 11-month-old twins, but she and Sandoval stayed a few minutes longer to discuss what had happened in court.
The new court procedures put defense attorneys and judges at cross-purposes, Sandoval said.
“There’s a tension: We want to make sure that we are asserting our client's rights during their initial appearance,” she said. But the court’s interest “is to make sure that these clients are processed as quickly as possible.”
Sandoval said that friction was evident in the courtroom where Judge Major had “50-plus matters on calendar and not enough time.”
Morgan echoed that concern.
“This separate court is just about processing a number of cases as quickly as possible,” she said. “The only way that happens is when people are complicit in giving up the rights that their clients have.”
Morgan said Federal Defenders plans to keep pushing back.
"Our plan honestly is to keep it up until either we’re all held in contempt, or we're shackled ourselves, or until this stops,” she said.
Why Adopt Operation Streamline Now?
It’s unclear why Barry Moskowitz, the chief judge of the federal court in San Diego, agreed to the expedited hearings. Moskowitz declined to answer questions about the changes at the court and did not issue a public order when they took effect in July.
Earlier this year, Moskowitz convened a committee of judges and attorneys to discuss how to handle the increased caseload under the Trump administration's zero tolerance policy.
"The U.S. Attorney has advised the Court that he intends to substantially increase the prosecution of illegal entry cases, including at least 100 misdemeanor cases a week," Moskowitz wrote in a court order. "The increase has and will cause strains, issues and problems."
The Federal Defenders office won some concessions, such as setting a maximum caseload of four clients for each of its attorneys. Federal prosecutors also agreed that if they could not provide clients’ records to defense attorneys by a daily deadline, they would drop the charges. An unknown number of cases have been dismissed since Operation Streamline took effect in San Diego.
Prosecutions of Other Federal Crimes
Critics believe the administration’s policy of prosecuting all illegal border-crossers is a misuse of resources that has resulted in a drop in prosecutions for more serious drug and trafficking crimes.
A recent report by Transactional Records Access Clearinghouse, a data research organization at Syracuse University, found that in border region courts the number of prosecutions of non-immigration related crimes dropped from a total of 1,093 in March 2018 to 703 prosecutions in June 2018.
“Unless crimes are suddenly less prevalent in the districts along the southwest border, the odds of being prosecuted for many federal offenses have declined,” the report found. “The declining number of prosecutions has already begun to show up in the Southern District of California, in New Mexico, and in the Southern District of Texas.”
But a spokeswoman for the U.S. Attorney's Office for the Southern District of California disputed the TRAC findings.
In an Aug. 10 email, Kelly Thornton wrote, “Our overall prosecutions of non-immigration matters are on track to exceed last year’s.”