Crossing Over: Assessing Operation Streamline and the Rights of Immigrant Criminal Defendants at the Border

Bent on curbing unauthorized immigration in the United States, the Department of Homeland Security has implemented Operation Streamline, a program aimed at criminally prosecuting all unauthorized immigrants along a five-mile stretch of the U.S.-Mexico border. While lauded by proponents as a success, Streamline has driven courts to conduct en masse hearings that ultimately compromise immigrant criminal defendants’ due process rights. Although the Ninth Circuit recently held in United States v. Roblero-Solis that these en masse proceedings violate Rule 11 of the Federal Rules of Criminal Procedure, this Article argues that by basing its holding on a procedural rule, Roblero-Solis fails to fully protect the rights of immigrant criminal defendants at the border. To eliminate this problem, this Article calls for courts to base these defendants’ rights on the Constitution and to apply the civil theory of territoriality, and reject the civil doctrines of plenary power and the ascending scale of rights, in criminal proceedings. To help ensure the application of these theories, this Article proposes a system that allows the courts to reduce the number of unauthorized immigrants that it prosecutes and to remedy any violations of the rights of the immigrants that it does.

What is Operation Streamline?

Operation Streamline is a federal initiative launched in 2005 that seeks to rapidly prosecute unauthorized immigrants through expedited criminal proceedings. Administered by the Department of Homeland Security (DHS) and Department of Justice (DOJ), this program criminalizes unlawful entry and reentry by funneling large numbers of immigrants into the U.S. criminal justice system.

Key Characteristics:

• Applies to individuals crossing without authorization in designated border zones
• Leverages criminal prosecution rather than civil removal proceedings
• Enforces group or “en masse” hearings with minimal individual attention

Understanding Rule 11 and Mass Adjudication

Rule 11 of the Federal Rules of Criminal Procedure safeguards a defendant’s right to enter a guilty plea that is knowing, voluntary, and intelligent. However, in mass hearings, defendants often:

• Lack of private consultation time with an attorney
• Do not receive complete translations
• May not fully understand their rights or the consequences of a plea

Case Reference: United States v. Roblero-Solis

The Ninth Circuit ruled that Streamline’s group hearings violated Rule 11. Yet, this ruling focused on procedural missteps, not constitutional violations, limiting the long-term protection it offers immigrant defendants.

Criminalizing Migration: A Broken Framework

There is a legal disconnect between the civil nature of immigration law and the criminal tactics used by Operation Streamline. Historically, immigration violations such as unlawful entry were treated as administrative offenses, but Streamline shifts these into the criminal domain.

Competing Doctrines:

• Plenary Power Doctrine: Grants the federal government near-total control over immigration enforcement.
• Ascending Scale of Rights: Suggests that rights increase based on legal status, citizens having more protections than noncitizens.
• Territoriality Theory: Asserts that constitutional rights apply to anyone within U.S. territory, regardless of status.

Why Procedural Fixes Are Not Enough

Merely correcting procedural flaws, like those addressed in Roblero-Solis, does not fix the core injustices embedded in Streamline. Due process violations go beyond Rule 11 compliance:

• Defendants often lack linguistic understanding of proceedings.
• The court environment can create psychological pressure and coercion, leading to involuntary pleas.
• Deterrence theory, the idea that harsh punishment discourages future violations, has not shown consistent success in immigration cases.

International Perspectives: A Broader Legal Lens

In contrast to the U.S., several Western democracies approach border enforcement as a humanitarian or administrative issue, not a criminal one:

• Canada and Germany prioritize asylum processing and civil review.
• International human rights law (e.g., the ICCPR) discourages the punitive treatment of asylum seekers and nonviolent migrants.

The U.S.’s criminal prosecution model through Streamline has drawn criticism from international legal scholars and human rights organizations.

Alternatives to Prosecution: Reimagining Border Enforcement

Rather than defaulting to criminalization, the following alternatives offer a more humane and constitutionally sound approach:

1. Administrative Hearings: Return to civil removal processes with legal representation.
2. Diversion Programs: Offer case resolution through counseling, community service, or supervised release.
3. Asylum Review Panels: Distinguish between economic migrants and legitimate asylum seekers at intake.

Reducing the volume of criminal prosecutions will improve judicial efficiency and uphold constitutional rights.

Frequently Asked Questions (FAQs)

What is Operation Streamline?

A federal policy that criminally prosecutes unauthorized border crossers in expedited, group-based hearings.

Does Operation Streamline violate due process?

Critics argue it does, especially through en masse hearings where defendants may not fully understand or voluntarily enter pleas.

What is Rule 11, and why is it important?

Rule 11 ensures guilty pleas are made knowingly and voluntarily. Violations can result in invalid convictions.

Are there better alternatives to criminalizing migration?

Yes. Civil proceedings, asylum protocols, and diversion programs are all viable, less punitive alternatives.

Do immigrants have constitutional rights in the U.S.?

Yes, especially once physically present. These include rights to due process, legal counsel, and fair treatment, particularly in criminal cases.

Legal References and Further Reading

• U.S. Courts – Federal Rules of Criminal Procedure
• American Civil Liberties Union (ACLU) – Immigration Enforcement
• Human Rights Watch – U.S. Immigration Prosecutions

Defend Your Rights with Trusted Legal Representation

If you or a loved one is facing prosecution under immigration law or Operation Streamline, you don’t have to navigate this system alone.

Contact EN Law Offices today to schedule a confidential consultation with an experienced immigration defense attorney.

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