[Senate Report 114-279]
[From the U.S. Government Publishing Office]
Calendar No. 519
114th Congress } { Report
SENATE
2d Session } { 114-279
_______________________________________________________________________
TO EXPRESS THE SENSE OF THE SENATE
REGARDING THE SUCCESS OF OPERATION
STREAMLINE AND THE IMPORTANCE OF
PROSECUTING FIRST TIME ILLEGAL BORDER CROSSERS
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
together with
ADDITIONAL VIEWS
to accompany
S. RES. 104
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
June 16, 2016.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
59-008 WASHINGTON : 2016
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire CORY A. BOOKER, New Jersey
JONI ERNST, Iowa GARY C. PETERS, Michigan
BEN SASSE, Nebraska
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
David S. Luckey, Director of Homeland Security
Brooke N. Ericson, Chief Counsel for Homeland Security
Gabrielle A. Batkin, Minority Staff Director
John P. Kilvington, Minority Deputy Staff Director
Mary Beth Schultz, Minority Chief Counsel
Holly A. Idelson, Minority Senior Counsel
Stephen R. Vina, Minority Chief Counsel for Homeland Security
Laura W. Kilbride, Chief Clerk
Calendar No. 519
114th Congress } { Report
SENATE
2d Session } { 114-279
======================================================================
TO EXPRESS THE SENSE OF THE SENATE REGARDING THE SUCCESS OF OPERATION
STREAMLINE AND THE IMPORTANCE OF PROSECUTING FIRST TIME ILLEGAL BORDER
CROSSERS
_______
June 16, 2016.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. Res. 104]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the resolution (S. Res. 104), to
express the sense of the Senate regarding the success of
Operation Streamline and the importance of prosecuting first
time illegal border crossers, having considered the same,
reports favorably thereon without amendment and recommends that
the resolution do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
IV. Section-by-Section Analysis......................................4
V. Evaluation of Regulatory Impact..................................4
VI. Changes in Existing Law Made by the Resolution, as Reported......4
VII. Additional Views.................................................5
I. PURPOSE AND SUMMARY
The purpose of S. Res. 104 is to express the sense of the
Senate that the Executive Branch should immediately remove any
issued or related prohibition, policy, guidance, or direction
to cease prosecuting first time illegal border crossers under
Operation Streamline.
II. BACKGROUND AND THE NEED FOR LEGISLATION
In 2011, the United States Border Patrol created the
Consequence Delivery System to provide assistance to
``management and agents'' in applying the ideal ``criminal and
administrative consequences'' for apprehended individuals.\1\
Under the Consequence Delivery System, the Border Patrol
attempts to impose a ``consequence'' such as prosecution,
expedited removal or voluntary removal on most or all
unauthorized migrants it apprehends at the Southwest Border. A
key component of the system is Operation Streamline.\2\
According to the Department of Homeland Security,
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\1\Does Administrative Amnesty Harm our Efforts to Gain and
Maintain Operational Control of the Border: Hearing Before the H.
Subcomm. on Border and Maritime Sec'y of the H. Comm. on Homeland
Sec'y, 112th Cong. (2011) (statement of Michael J. Fisher, Chief, U.S.
Border Patrol, U.S. Customs and Border Protection, U.S. Dep't of
Homeland Sec.), available at https://www.dhs.gov/news/2011/10/04/
written-testimony-cbp-house-homeland-security-subcommittee-border-and-
maritime.
\2\Id.
Streamline is a criminal prosecutions program
targeting individuals who illegally enter the United
States through defined geographic locations.
Consequences are imposed through consistent application
of criminal sanctions to reduce illicit cross-border
activity. Streamline is a multi-agency effort that
relies heavily upon the collaborative efforts of U.S.
Customs and Border Protection, the U.S. Magistrate, the
Federal Judiciary, the U.S. Attorney's Office, the U.S.
Marshals Service, Immigration and Customs Enforcement,
and the Executive Office of Immigration Review.\3\
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\3\Id.
Operation Streamline expedites the criminal processing of
illegal border crossers by allowing large groups to have their
charges heard by a judge at the same time, often resulting in
jail time.\4\ According to a chart on the Consequence Delivery
System prepared by Customs and Border Protection (CBP) for use
by Border Patrol officers in the Tucson sector, Operation
Streamline is rated ``most effective and efficient'' for those
who are apprehended for the first time, those who have been
apprehended two or three times, and those who are a
``persistent alien.''\5\ In addition, Operation Streamline is
rated ``highly effective and efficient'' for suspected
smugglers, targeted smugglers, and criminal aliens.\6\
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\4\Lisa Seghetti, Cong. Research Serv., R43356, Border Security:
Immigration Enforcement Between Ports of Entry 8 (2014).
\5\Tucson Sector: Consequence Delivery System Guide, FY2014, U.S.
Customs and Border Protection (2015) (on file with Comm. staff); U.S.
Border Patrol Apprehensions from Mexico and Other Than Mexico (FY 2000-
FY 2015), U.S. Customs and Border Protection (2015), available at
http://www.cbp.gov/newsroom/media-resources/stats?title=Border+Patrol.
\6\Id.
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In 2015 the DHS Office of Inspector General noted
additional tools CBP could use to measure the effectiveness of
Operation Streamline and other consequences, such as measuring
recidivism rates over multiple fiscal years (FY).\7\ However,
CBP explained that ``rather than focusing solely on recidivism
and the re-apprehension rate, conducting analyses on a wide
range of indicators demonstrates better evaluation and
assessment of CBP's enforcement efforts at the strategic,
operational, and tactical levels.''\8\ CBP is currently
implementing a ``State of the Border Risk Methodology''
strategy to measure its effectiveness, which the OIG found
responsive to its recommendation.\9\
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\7\Office of Inspector General, Department of Homeland Security,
OIG-15-95, Streamline: Measuring Its Effect on Illegal Border Crossing,
3 (May 15, 2015), available at https://www.oig.dhs.gov/assets/Mgmt/
2015/OIG_15-95_May15.pdf.
\8\Id.
\9\Id.
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Operation Streamline was originally implemented in the Del
Rio Sector in December 2005\10\ as a joint venture between the
United States Border Patrol, Department of Justice, and United
States Marshals Service. Under the Del Rio initiative, many
illegal crossers, including first time crossers, were
criminally prosecuted for illegal entry, usually sentenced to
jail time, and then removed.\11\ The Del Rio Sector saw a
marked decrease in apprehensions after the implementation of
the operation.\12\ For example, from FY 2005 to FY 2006
apprehensions decreased from 68,506 to 42,636--a decrease of 37
percent.\13\ Similarly, in FY 2007 apprehensions again fell to
22,920--a 67 percent decrease from FY 2005 apprehension
levels.\14\
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\10\Id. at 4.
\11\Id.
\12\U.S. Border Patrol Apprehensions from Mexico and Other Than
Mexico, supra note 5.
\13\Id.
\14\Id.
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After the decreased apprehensions realized in the Del Rio
Sector, Operation Streamline was rolled out in other southwest
border sectors.\15\ Once Operation Streamline was applied in
the Yuma Sector, apprehensions decreased from 118,549 in FY
2006 to 37,992 in FY 2007--a 68 percent decrease.\16\
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\15\Streamline: Measuring Its Effect on Illegal Border Crossing,
supra note 7 at 5.
\16\U.S. Border Patrol Apprehensions from Mexico and Other Than
Mexico, supra note 5.
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Despite this success, in 2014 the Yuma County, Arizona
Sheriff wrote a letter to members of Congress explaining he
received notice from the U.S. Attorney's Office for the
District of Arizona ``that first time offenders will not be
prosecuted.''\17\
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\17\Letter from Leon N. Wilmot, Sheriff, Yuma County to the
Honorable Jeff Flake, U.S. Senator (Aug. 19, 2014), available at http:/
/www.flake.senate.gov/public/_cache/files/9d45f51e-521b-42e1-9df8-
407e5d24388f/flake-jeff-re-operation-streamline-08192014.pdf (policy
subsequently confirmed by U.S. Customs and Border Protection).
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This resolution expresses the sense of the Senate that
gains made in border security in the Yuma sector are of
critical importance and that failing to prosecute first-time
illegal border crossers under Operation Streamline will
jeopardize such border security gains. To that end, the
resolution affirms that Operation Streamline should be
preserved and that the Executive Branch should immediately
remove any and all obstacles to prosecuting first-time illegal
border crossers under Operation Streamline.
III. LEGISLATIVE HISTORY
Senators Jeff Flake, Chuck Grassley, Ron Johnson, and John
McCain introduced S. Res. 104 on March 18, 2015, which was
referred to the Committee on Homeland Security and Governmental
Affairs.
The Committee considered S. Res. 104 at a business meeting
on February 10, 2016. The Committee ordered the bill, reported
favorably, by roll call vote. Senators voting in the
affirmative were: Johnson, McCain, Portman, Paul, Lankford,
Ayotte, Ernst, and Sasse. Senators voting in the negative were:
Carper, McCaskill, Tester, Baldwin, Heitkamp, Booker, and
Peters. For the record only, Senator Enzi voted aye by proxy.
IV. SECTION-BY-SECTION ANALYSIS OF THE RESOLUTION, AS REPORTED
The resolution states the Senate's findings that Operation
Streamline has proven to be an effective tool in the
Consequence Delivery System and, along with manpower and
technology, has contributed to significant border security
gains, namely in the Yuma Sector.
The resolution resolves that ceasing to prosecute illegal
crossers under Operation Streamline will jeopardize border
security gains and declining recidivism rates. To that end, it
is the sense of the Senate that the Executive Branch should
abolish any prohibition, policy, guidance, or directive
preventing the use of Operation Streamline across the Southwest
border.
V. EVALUATION OF REGULATORY IMPACT
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this resolution and
determined that the resolution will have no regulatory impact
within the meaning of the rules. The Committee believes that
the resolution contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
VI. CHANGES IN EXISTING LAW MADE BY THE RESOLUTION,
AS REPORTED
Because S. Res. 104 would not repeal or amend any provision
of current law, it would make no changes in existing law within
the meaning of clauses (a) and (b) of paragraph 12 of rule XXVI
of the Standing Rules of the Senate.
VII. ADDITIONAL VIEWS
----------
ADDITIONAL VIEWS OF SENATORS CARPER AND BALDWIN ON S. RES. 104
OPERATION STREAMLINE
Operation Streamline grew out of a concern that too many
unlawful border crossers were being returned to Mexico without
serious consequences (an option known as voluntary return), or
released on bond while they awaited hearings in immigration
court or other procedures. In 2005, the Border Patrol in the
Del Rio Sector of Texas (the El Paso region) partnered with
federal prosecutors to try unlawful border crossers in federal
court on criminal charges. The program was dubbed ``Operation
Streamline,'' and subsequently expanded to certain other
districts along the southwest border, including the Yuma sector
in Arizona.
Operation Streamline is notable in two respects. First, the
cases are handled in federal criminal court rather than the
civil immigration court system. This means that defendants are
entitled to a lawyer (which is not true in the civil
immigration courts) but also subject to far more serious
penalties. Not only do they serve federal prison sentences, but
the criminal conviction carries negative consequences with
respect to any future attempts to enter or legalize status.
Second, these cases are handled under abbreviated, group
proceedings rather than as individual cases. Dozens of migrants
are brought into the courtroom together and have a group
hearing with limited or no individualized review.
Operation Streamline is part of the Border Patrol's broader
Consequence Delivery System, which seeks to determine the most
effective and efficient ways to deter border crossings along
the Southwest Border. Some of the other options include formal
removal proceedings by an immigration judge (group or
individual), repatriation to the interior of Mexico, or
individualized prosecution in federal court.
It is important for Border Patrol to have a range of tools
to respond to challenging conditions at the border, and the
agency clearly believes that Operation Streamline is an
effective deterrent for some border crossers and an important
tool to use in conjunction with other responses. In addition,
some border communities in Arizona and elsewhere have been
heavily impacted by unlawful migration and drug trafficking and
rightfully want effective action by the federal government to
blunt negative impacts.
According to DHS statistics, immigrants prosecuted under
Operation Streamline are less likely to cross again (10.3
percent) than those allowed to return voluntarily (27.1
percent) or subject to removal by immigration judge (roughly 16
to 18 percent).\1\
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\1\DHS Office of Inspector General, ``Streamline: Measuring Its
Effect on Illegal Border Crossing,'' May 15, 2015, OIG-15-95, p. 8.
(hereinafter, ``OIG report'').
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But some academics have questioned whether Streamline is as
effective a deterrent as Border Patrol statistics suggest, and
a May 2015 report by the DHS Office of Inspector General (OIG)
also identified certain weaknesses in the data.\2\
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\2\OIG report, pp. 8-10.
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In addition, Operation Streamline imposes significant
costs, particularly compared with handling these cases in the
civil immigration system. DHS bears some of these costs and in
some districts is supplying lawyers to help federal prosecutors
with the caseload. But most of the costs are borne by the
Department of Justice, including federal prosecutors and
judges, federal public defenders, and the federal Marshals
Service, which houses the defendants pretrial and for their
criminal sentences. The recent OIG report on Operation
Streamline noted that DHS does not currently track the precise
costs of Streamline, either for itself or its law enforcement
partners, and recommended that officials try to generate cost
estimates for the program.\3\ In addition to the absolute costs
of prosecution and detention, some critics say the prosecutions
impose a broader social cost by crowding out prosecution of
more serious crimes.\4\
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\3\OIG report, p.11.
\4\Congressional Research Service, ``Border Security: Immigration
Enforcement Between Ports of Entry,'' December 31, 2014, R42138, p. 40.
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Since fiscal year 2006 when the Streamline program began,
the number of immigration prosecutions in federal courts along
the southwest border climbed from 37,529 to more than 97,000 in
fiscal year 2013.\5\ In Tucson alone, the U.S. Marshals Service
estimated it spent $63 million annually to detain Streamline
defendants.\6\ That does not include additional costs for
prosecutors, court personnel and related expenses.
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\5\OIG report, p. 38.
\6\OIG report, p. 36.
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Beyond the costs, there have been lawsuits and other
complaints alleging that the mass trials violate due process,
or at least accepted standards of justice. Immigrants are
brought into the courtroom shackled and in large groups, and
asked to give their pleas after minimal contact with an
attorney. There is particular concern--noted in the recent OIG
report--that the program may violate the rights of asylum
seekers under international law.\7\
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\7\The 2015 OIG report on Operation Streamline raises this issue as
well and recommends that CBP develop better guidance for Streamline
jurisdictions on how to handle migrants who express a fear of
persecution.
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In July 2015, 171 civil rights, human rights and faith
organizations wrote to Attorney General Lynch asking that she
discontinue or significantly curtail the Streamline program.
According to the groups, the Streamline prosecutions pose
serious due process concerns and do not clearly deter
unauthorized migration. The letter expresses particular concern
that the program violates international law by prosecuting
valid asylum seekers.
Against these concerns, we cannot support S. Res. 104.
S. Res. 104 is a Sense of the Senate affirming the
importance of Operation Streamline and calling on the
Administration to reverse a reported curtailment in who is
eligible for the prosecutions.
Specifically, the resolution cites reports that the Office
of the U.S. Attorney in Arizona will only prosecute defendants
for illegal reentry into the United States, rather than for a
first-time entry. The Justice Department will not confirm such
a policy, however, stating that it would undermine its law
enforcement efforts to make public specific information about
prosecution policies.
The resolution asserts that Operation Streamline has been a
``key to the success in the Yuma Sector'' in decreasing illegal
crossings and is particularly effective at deterring repeat
crossings.
These are controversial contentions. As noted above, the
Inspector General and others have questioned the accuracy of
current statistics on the effectiveness of Operation
Streamline. It is also difficult to isolate the impact of any
one factor on overall migration--particularly in the face of
broader economic trends, for instance, that have caused net
Mexican migration to the United States to drop to zero or
below.
The resolution also cites the Yuma Sheriff's claim that
there is a shared Federal, state and local goal of ``zero
tolerance'' and 100 percent prosecution of border crossers.
However, CBP has recently stated that Streamline is ``is not a
zero tolerance initiative.''\8\ Indeed, our understanding is
that first-time border crossers are typically not prosecuted
under Operation Streamline in other Border Patrol sectors.
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\8\Appendix C: CBP and ICE Comments to the Draft Report in
Streamline: Measuring Its Effect on Illegal Border Crossing, DHS OIG,
May 15, 2015.
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It is worth noting that the number of apprehensions in the
Yuma sector has remained relatively steady in the past eight
years, ranging from about 5,800 to 8,363--well below the peak
of 138,438 in fiscal year 2005. To the extent numbers have
climbed somewhat in fiscal year 2015, it appears to reflect the
general increase of migrants from the Northern Triangle
countries of El Salvador, Guatemala and Honduras seen across
the southwest border. Additionally, a significant number of
those Central American migrants are unaccompanied minors and
families who are not eligible for Operation Streamline in any
event.
We support the Inspector General's call for better metrics
to assess the full costs and effectiveness of the Streamline
program--including costs borne by all affected agencies.
Thomas R. Carper.
[all]