Adopted NACDL Policy on Operation Streamline

Recommended NACDL Policy

1. NACDL counsels lawyers to refuse to engage in the defense of these cases unless they are competent in the area and are provided adequate time and resources to allow meaningful representation. ............

Description of Operation Streamline and Creation of the Task Force

"Operation Streamline" began in Del Rio, Texas, in December of 2005. It has been expanded to Laredo, Texas, and Arizona. The program consists of border agents apprehending a group of border crossers and bringing them to a jail facility. Those individuals, who do not have a criminal history, will be sent to the federal courthouse to be charged with the misdemeanor, "entry without inspection". United States Marshals hold these persons until they meet with their court appointed attorneys and appear before the U.S. Magistrate Judge who explains their charges and sentences them. After conviction and serving their jail time, the illegal entrants are deported to their countries of origin.

In Arizona, the Federal Public Defenders and CJA Panel lawyers have been trained regarding how to defend these types of cases. Jon Sands, Federal Public Defender for the District of Arizona, has developed a training manual, which he has promised to share with the Task Force. In the Southern District of Texas, Federal Public Defender Marjorie Meyers, has implemented a program where Federal Public Defenders handle all of the cases. She has developed a program that allows her attorneys to screen the cases for those where actual defenses exist, including a lack of proof of a border crossing or derivative United States citizenship.

The most troubling treatment of these cases is currently occurring in Del Rio, Texas, where reportedly an inadequately trained group of CJA Panel attorneys are handling the cases at $50 per person represented. Henry Bemporad, Western District of Texas Federal Public Defender, put us in touch with William Fry, Del Rio Supervisory Federal Public Defender. When Federal Public Defenders were originally assigned and provided quality representation, the office was excluded from any IEWI1 cases. This has since been reversed, and the office now receives some cases but problems persist.

Mr. Fry reports that sometimes, the defendants are not even given an opportunity to meet with their lawyers before they plead guilty. Instead, they are interviewed by the representing attorneys' secretaries or paralegals. In addition, these individuals are not being given the benefit of an adequate explanation of the collateral consequences of their decision to plead guilty. There is also a great deal of concern that the collateral consequences of the guilty pleas in these cases may include the inability to ever be processed for United States citizenship, or to enter the United States again. Mr. Fry is also convinced that the division is mistakenly convicting and deporting persons with derivative U.S. citizenship, juveniles, and those who have legitimate defenses to the entry without inspection offense. He named at least one case where venue was improper in Del Rio, Texas, but a conviction was nonetheless obtained. NACDL has formed a Task Force under the charge of our President Carmen Hernandez in order to develop and fashion an appropriate response and good policy with respect to Operation Streamline. The task force recommends the following:

Recommended NACDL Policy

1. NACDL counsels lawyers to refuse to engage in the defense of these cases unless they are competent in the area and are provided adequate time and resources to allow meaningful representation.

2. NACDL counsels that lawyers learn how to defend $1325 cases. Lawyers should understand how to defend such cases before undertaking the representation of an individual charged with this offense.

3. NACDL counsels lawyers to also obtain adequate training in the complex area of derivative United States citizenship. [Redacted.]

4. NACDL counsels lawyers to perform a sufficient investigation to determine whether factual defenses are available to these individuals. Lawyers appointed or assigned to these cases should provide a full and informed briefing on the collateral consequences of entering into a guilty plea for "entry without inspection." They must also insist upon privacy with their client when conducting interviews. There was a complaint recently in Laredo that a Border Patrol agent was sitting in during the interview between appointed counsel and the defendant.

5. NACDL recommends that lawyers should either be bilingual (in English and their client's language) or have qualified interpreters to assist them.

6. NACDL counsels lawyers to sufficiently investigate whether their clients have mental health, asylum or other issues.

7. NACDL counsels lawyers to consult directly with their clients during every critical phase of the case.

8. NACDL recommends that counsel attempt to obtain a quick trial, so that defendants are not tempted to make a deal simply to get home more quickly.

9. NACDL also recommends that counsel contact the Mexican or appropriate consulate to obtain consular services for their clients. Counsel should also preserve any violation of the Geneva Convention on Consular Rights.

10. NACDL recommends presenting special seminars to train counsel on how to handle these cases where they exist in large numbers.

11. NACDL recommends that counsel develop a sufficient psycho-social history in order to provide strong representation at sentencing. Counsel should also obtain witnesses or other evidence to vigorously and effectively represent the client at sentencing.

12. NACDL recommends that in these cases appointed counsel be paid in compliance with the Criminal Justice Act.

13. NACDL recommends the dismissal of defensible cases and the immediate return of those persons whose cases are so dismissed.

14. NACDL recommends that counsel make arrangements to insure adequate food, health care and clothing for their clients. Counsel should arrange with the arresting and detaining authorities for the return of client property.

15. NACDL recommends that the offices which deal with Operation Streamline should keep accurate and full statistical information in order to properly evaluate the legitimacy of the program's purposes and accomplishments. The program should not be applied in a manner that discriminates against any insidious group.

Further Information

The Task Force is also seeking to align itself with coalition partners in order to debunk the Border Patrol's stated purposes and accomplishments of Operation Streamline. NACDL intends to make a joint effort to defeat the program. Everyone dealing with Operation Streamline agrees that it is a bad program. While Operation Streamline has inadvertently benefited, at least some serious felons, because Border Patrol does not perform a sufficient investigation to determine that more serious offenses have been committed, this does not excuse the fact that the program is punishing people, with criminal convictions and collateral consequences, who are trying to come to this county to work. NACDL should champion the development of laws which provide a sensible supervision program for non-U.S. citizens to enter this county for the purposes of work.

In Laredo, the Federal Public Defender, Marjorie Myers, responded to Operation Streamline by forming a team in the Laredo office of Federal Public Defenders to handle all of the cases, The team is composed of lawyers and investigators who know how to defend the cases and how to screen them for defenses and other issues that will make the defendants ineligible for Operation Streamline. Ms. Myers also agrees that the program is a bad program.

The Del Rio office is experiencing many difficulties with Operation Streamline. It appears that the courts are unsympathetic with the requirement of providing adequate facilities for lawyers to meet with clients or that the lawyers are not willing to take the time to meet with their clients before proceeding to guilty pleas. Often paralegals and secretaries are interviewing the defendants. And therefore, it is reported that many of these defendants plead guilty without ever having spoken to a lawyer. William Fry, Supervising Assistant Public Defender in charge of the Del Rio office is certain that people with defenses to these charges have been convicted and deported. He is also concerned that Mexicans are being prosecuted to the exclusion of individuals entering from other nations. At one time, all of the appointments for the illegal entry cases were made to CJA lawyers. The perception was that the Federal Public Defender's office was doing too thorough a job and that the court decided not to allow the Federal Public Defender's office to have any more of the cases. That is no longer true and the Federal Public Defender's office does represent some of the illegal entry cases now.

We also understand that the CJA lawyers in Del Rio are paid $50 per defendant to represent clients in these cases. This payment plan is not in compliance with the Criminal Justice Act and we believe that the practice is under investigation by the Administrative Office of U.S. Courts. The Criminal Justice Act provides that each lawyer must be paid $100 per hour per case. The end result of the $50 per defendant charge is that some of these lawyers are making much more than $100 per hour and have to submit bills for more than 24 hours in the day. An example given was that one individual charged for 86 hours one day. There is also anecdotal information that some lawyers are making upwards of $200,000 a year defending only these illegal entry cases. Therefore, the challenges in Del Rio will be to engage the courts in assisting to provide adequate facilities and resources for the defense of these cases and engaging the CJA Panel lawyers in the desire to provide adequate representation.

Jon Sands generously offered to provide the Task Force with the training materials he generated for the District of Arizona for these cases. This will assist the Task Force in quickly ramping up a good training program for the Del Rio lawyers. Federal Public Defender Henry Bemporad, of the Western District of Texas, where Del Rio is located, has also committed to providing CJA panel lawyers quality education generally. The Task Force can count on his assistance to implement a training program in Del Rio for the CJA Panel lawyers.

Operation Streamline Committee Members:

Cynthia E. Orr [Co-Chair], Robert Hooker [Co-Chair][Deceased], Henry Bemporad [Federal Public Defender - Western District of Texas], William Fry [Supervisory Assistant Federal Public Defender -Western District of Texas, Del Rio Division], Tova Indritz [Chair - Immigration Committee], Marjorie Meyers [Federal Public Defender - Southern District of Texas], E.G. "Gerry" Morris [Liaison for Indigent Defense Committee], Linda Ramirez [specialized representation of foreign nationals in criminal and civil matters], Monica M. Ramirez [Staff Attorney - ACLU Immigrants' Rights Project], Jon Sands [Federal Public Defender - District of Arizona], Heather Williams [First Assistant Federal Public Defender - District of Arizona]. 

New York, New York

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