On 24 May, the Washington Press web site reported that President Donald Trump had “just begun forcing detained immigrants to wear yellow insignias,” a policy which some readers likened to Nazi Germany’s practice of forcing Jews to wear yellow Star of David badges:
President Donald Trump’s most monstrous policy is finally becoming a reality. The Border Patrol and the Immigration and Customs Enforcement agencies have begun separating migrant children from their parents and placing them in military warehouses while their parents are locked away in ICE’s concentration camps.
But there is another, somehow even darker, detail to the story that the administration failed to announce. They are now marking arrested immigrants with yellow insignias.
The Arizona Daily Star reports that at a recent immigration hearing, Alma Jacinto, a 36-year-old Guatemalan migrant had her children taken from her — and was given a yellow “bracelet” to indicate her status as a detained illegal immigrant.
The referenced passage from the Daily Star article said that “Jacinto wore a yellow bracelet on her left wrist, which defense lawyers said identifies parents who are arrested with their children and prosecuted in Operation Streamline, a fast-track program for illegal border crossers.” It’s unclear from that description whether the referenced yellow “bracelet” identified the arrested woman as a detainee or specifically a detainee with children, or whether it was something separate from the identifying wristbands that have long been used under Operation Streamline. (We reached out to the Star‘s reporters for clarification but had not heard back by press time.)
Certainly the use of bracelets and/or wristbands is not part of a new policy just enacted by the Trump administration, nor something that otherwise has “just begun.” Immigration authorities have for years used wristbands to identify immigrants scheduled for summary criminal prosecution for illegal border-crossing under a federal initiative known as Operation Streamline, which was created under the administration of George W. Bush in 2005 and continued during the Obama and Trump administrations.
Operation Streamline was launched in 2005 by Michael Chertoff, then the Secretary of the Department of Homeland Security (DHS). According to the DHS, the U.S. Border Patrol piloted the initiative “in response to an increase in illegal alien entries from countries other than Mexico in 2004 and 2005” and intended it to “reduce the rate of alien re-entry recidivism.”
Traditionally, the approach to foreign nationals crossing the U.S. border illegally from Mexico had been to stop them and send them back over the border into Mexico (an approach known as “catch and release”) or to detain them and then formally deport them.
Under Operations Streamline, such persons were to be rounded up to undergo criminal prosecution in United States district courts, serve jail sentences (usually under one year), and then be deported. The initiative was jointly run by the Department of Homeland Security (in the form of the Customs and Border Protection and Immigration and Customs Enforcement agencies) and the Department of Justice (by way of U.S. Attorneys and district courts along the border).
One feature of Operation Streamline is that immigrants are often processed en masse rather than in separate criminal cases. In 2014, a U.S. District Court judge in Tucson, Arizona, told the New York Times that he had once processed 70 individuals (the most the jail cells adjacent to the courtroom could accommodate) in one 30-minute session. Most defendants pled guilty to illegally crossing the border in order to obtain a shorter prison sentences.
For at least five years, officials have been using bracelets to identify persons rounded up for prosecution under Operation Streamline. In early 2013, G.W. Schulz, a journalist from the Center for Investigative Reporting, examined the plight of recently deported immigrants sent back over the border to Mexico. His report contained photographic evidence of the use of the wristbands as well as the following description:
What we try to do in the United States is apply criminal justice principles to immigration patterns. Whenever we saw a wristband, we knew that that individual had been processed through a program called Operation Streamline — that’s where individuals are criminally prosecuted for violating immigration laws.
According to a 2015 report by the Department of Homeland Security, at the height of the operation’s implementation, six out of nine southwestern border “sectors” (in Arizona and Texas) were participating in Operation Streamline. However, by 2014 that had been reduced to just three sectors: Del Rio, Texas, where the program was first launched in 2005; Laredo, Texas; and Tucson, Arizona. During the two administrations of former president Barack Obama, the implementation of the initiative first expanded and then shrank again. Operation Streamline has never been implemented in California.
U.S. Border Patrol estimates hold that the agency made almost 170,000 referrals to federal courts for criminal prosecution of illegal border-crossing between 2006 and 2011. Supporters of the policy have said the prospect of criminal prosecution and a jail sentence has proved to be an effective deterrent against illegal crossings along the Mexican border.
In 2015, Arizona Senators John McCain and Jeff Flake enthusiastically defended Operation Streamline, writing in a Senate Resolution that it had “resulted in gains in border security in the Yuma sector” and was “associated with a recidivism rate that is well below average and has seen a steady decrease in recidivism in recent years.”
For 2012 and 2013, Border Patrol data show that the rate of recidivism (a person illegally entering the United States more than once in the same year) was almost three times as low among individuals processed in criminal courts under Operation Streamline than it was among individuals allowed to simply leave the United States at their own expense, a system known as “voluntary return.”
However, critics have condemned Operation Streamline as distracting law enforcement agencies and federal prosecutors from targeting violent crime and drug trafficking by attempting a “zero tolerance” approach to all those who cross the border illegally (many of whom are themselves fleeing violence and criminal gangs), overloading federal courts in border districts, costing too much, and violating the due process rights of detained immigrants by prosecuting them en masse.
In 2009, the U.S. Court of Appeals for the Ninth Circuit ruled that the collective court hearings typical of Operation Streamline violated due process norms, because even if a large number of defendants were processed together in a courtroom, the court was still obligated to deal with each of them on an individual basis. In his ruling, Circuit Judge John Noonan wrote that:
No judge, however alert, could tell whether every single person in a group of 47 or 50 affirmatively answered her questions when the answers were taken at the same time. No judge could have detected a mute response offered in the midst of a medley of voices saying “Si.” No judge, however conscientious, could have possessed the ability to hear distinctly and accurately fifty voices at the same time.
The record reflects the most that could be detected: a “General Yes.” How different that record is from the hearing in which four of the appellants were questioned together, and the record reflects responses from “All.” Neither an indistinct murmur or medley of yeses nor a presumption that all those brought to court by the Border Patrol must have crossed the border is sufficient to show that each defendant pleaded voluntarily.
President Trump’s administration has not “just begun” the use of wristbands and bracelets nor the implementation of Operation Streamline. However, the Trump administration has signaled its intent to ramp up the use of criminal prosecutions. In April 2018, Attorney General Jeff Sessions wrote to U.S. Attorneys (federal prosecutors) along the southwestern border, ordering them “to adopt immediately a zero-tolerance policy for all offenses referred for prosecution under section 1325(a).”
This order is significant, because Section 1325 of the U.S. Code relates to the misdemeanor of “improper entry” into the United States, a charge typically brought against first-time border crossers, and historically dealt with using civil and administrative removal from the country. Now, Attorney General Sessions is pushing a policy of using criminal convictions even for first-time misdemeanor “improper entry,” an approach typically reserved for illegal re-entry after removal or deportation (which is a felony dealt with under Section 1326 of the U.S. Code).
At a speech in San Diego in May 2018, Sessions outlined a hardline approach to illegal border crossings and vowed to separate children from the parents and guardians whom federal border agents would be rounding up for criminal prosecution by U.S. Attorneys:
I have put in place a “zero tolerance” policy for illegal entry on our Southwest border. If you cross this border unlawfully, then we will prosecute you. It’s that simple. If you smuggle illegal aliens across our border, then we will prosecute you. If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law. If you make false statements to an immigration officer or file a fraudulent asylum claim, that’s a felony. If you help others to do so, that’s a felony, too. You’re going to jail. So if you’re going to come to this country, come here legally. Don’t come here illegally.
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Washington Press. 24 May 2018.
Prendergast, Curt and Perla Trevizo. “Parents, Children Ensnared in ‘Zero-Tolerance’ Border Prosecutions.”
Arizona Daily Star. 25 May 2018.
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U.S. Department of Homeland Security. 15 May 2015.
Kriel, Lomi. “Streamlined: Trump Pressing for Mass Criminalization of Illegal Border Crossers.”
Houston Chronicle. 27 August 2017.
Santos, Fernanda. “Detainees Sentences in Seconds in ‘Streamline’ Justice on Border.”
The New York Times. 11 February 2014.
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U.S. Senate. 19 March 2015.
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The Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity at University of California, Berkeley Law School. January 2010.
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The Hill. 25 March 2013.
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American Civil Liberties Union. Accessed 27 May 2018.
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U.S. Court of Appeals, Ninth Circuit. 2 December 2009.
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Office of the U.S. Attorney General. 6 April 2018.
U.S. Code. “Title 8, Chapter 12, Subchapter 2, Part 8, Section 1325 — Improper Entry by Alien.”
Legal Information Institute, Cornell Law School. Accessed 27 May 2018.
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Legal Information Institute, Cornell Law School. Accessed 27 May 2018.
Sessions, Jeff. “Attorney General Sessions Delivers Remarks Discussing the Immigration Enforcement Actions of the Trump Administration.”
U.S. Department of Justice. 7 May 2018.