This part 2 of a 3 part series.
Because of the lack of detention facilities and because individuals that were not Mexican citizens could not be forced back to México, the U.S. government released most OTMs (Other than Mexican) into surrounding U.S. communities with Notices to Appear at immigration courts at a later date.
As word spread that the U.S. government was releasing immigrants that were not Mexican into the community, more Central American nationals started making the trip to enter America as undocumented immigrants. The idea being that since they were being released rather than deported, they could blend into the neighborhoods.
To counter the surge of OTMs, the U.S. government, under George W. Bush, decided to criminally prosecute all who crossed the border illegally at the Del Rio sector as a criminal offense under Section 1325, instead of the previous civil prosecutions.
Operation Streamline was launched on December 2005. It was designed to “deter illegal entries and end catch and release with an operation that included arrest, prosecution, and removal.” Under the operation, the Border Patrol “decided whether to refer” immigrants they caught for criminal prosecution or process them civilly as previously.
By 2008, Operation Streamline was expanded to other Border Patrol sectors in Arizona and Texas. At its height, the operation was used in six sectors. However, by December 2014 – during the Barack Obama Administration – only the Del Rio, Laredo and Tucson sectors continued to participate in Operation Streamline.
It remained up to the discretion of the Department of Homeland Security as to which immigrants would be prosecuted criminally for crossing the border through an unauthorized point of entry. DHS referred immigrants for prosecution on a discretionary basis mainly based on the availability of resources to house and prosecute the immigrant. However, the policy to discourage illegal entry through criminal prosecution remained as part of the policy to discourage undocumented immigrants.
On April 11, 2017, then Attorney General Jeff Sessions issued a memorandum at the direction of Donald Trump directing DHS officials to adopt “a zero-tolerance policy” and begin prosecuting all immigrants under the criminal provisions of 1325. The Border Patrol no longer had the prosecutory discretion to decide who to prosecute criminally and who to charge civilly. The Session policy only targeted immigrants caught on the southern border.
This is what led to the caging of children.
Those who argue that all undocumented immigrants are “criminal” base their argument on the idea that U.S. law treats undocumented immigrants as criminals. It does not. The only criminal activity under current U.S. law is crossing the border at an undesignated point. But as we have noted, crossing the border in an undesignated point can be treated as a civil violation or a criminal violation.
But being in the country in an undocumented status is not a criminal act under the current law. Even those that crossed the border through an undesignated area can also be free of criminal prosecution. Tomorrow will look at that.