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Border Zone Policies

The Department of Homeland Security Secure Border Initiative

A National Border Patrol Strategic Plan was first developed in 1994 to deal with the perception that borders were being overrun by illegal immigrants and drug dealers. It was then updated in 2004 and 2012. In 2004 the updated strategy focused on command structures, intelligence and surveillance, enforcement and deployment of U.S. Border Patrol agents to better respond to threats at the border. The strategic planning led to broader policy development for the Department of Homeland Security which led to the Secure Border Initiative (SBI) in 2005 to secure U.S. borders and reduce illegal migration. The main components of SBI dealt with staffing concerns, removal capacity, surveillance and tactical infrastructure and interior enforcement.

An additional component was “high consequence enforcement”, which was not the subject of a formal public policy document. There was the allowance, historically, for voluntary returns of individuals apprehended at the border by Border Patrol agents. These voluntary returns, after the SBI of 2005, were limited to three “high consequence outcomes”. One "high consequence outcome" was formal removal, which meant the individual would be deemed ineligible for a visa for at least five years and subject to criminal charges if caught re-entering illegally. The Immigration and Nationality Act permitted aliens to be formally removed with “limited judicial processing” known as expedited removal. The Department of Homeland Security has expanded between 2002 and 2006, expedited removal for “certain aliens that entered within previous two weeks and were apprehended within 100 miles of the border”.

Another “high consequence outcome” is the increase in criminal charges. Department of Homeland Security has also worked with the Department of Justice to increase the number of apprehended individuals crossing the border illegally who are charged with criminal offenses. Most of these cases are prosecuted under Operation Streamline . The third “high consequence outcome” is known as remote repatriation. This is the return of apprehended Mexicans to remote locations by Border Patrol rather than the nearest Mexican port of entry.

The 100 Mile Border Zone

Regulations establishing the 100 mile zone were adopted by the U.S. Department of Justice as the result of an interpretation of the Immigration and Nationality Act in 1953 . Customs and Border Protection’s (CBP) officials have authority for stop and search within this 100 air miles from any external boundary. This allows for CBP officials to enter private property without a warrant within 25 miles of the border as well as the operation of checkpoints .

The Fourth Amendment of the U.S. Constitution protects against unreasonable search and seizure, however, according to the government this Amendment does not fully apply at borders or border crossings (also known as ports of entry). This means that much of the U.S. population is subject to CBP regulations for stop and search. The 100 Mile Border Zone includes two thirds of the population, a majority of the largest cities in the U.S. and several entire states .

There are some limits to CBP officials ability to stop and search. For instance CBP officials are not allowed to pull anyone over without a reasonable suspicion of immigration violation or crime, or search vehicles without warrant or probable cause. It has, however, been found that CBP officials routinely ignore or misunderstand the limits of authority, and compounded by inadequate training, lack of oversight and failure to hold officials accountable for abuse - incidence of abuse is common .

Operation Streamline

Federal courthouse in Tucson, AZ where Operation Streamline proceedings take place.

Operation Streamline refers collectively to zero-tolerance policies implemented at the U.S.-Mexico border that seek to remove undocumented immigrants through an expedited process if they have arrived with missing or fraudulent identification or have previously been convicted for an immigration crime.

History

Operation Streamline was first implemented in Del Rio, Texas in 2005. The program has since expanded to four out of the five federal judicial districts on the U.S.-Mexico border: Yuma, AZ; Laredo, TX; Tucson, AZ; and Rio Grande Valley, TX.

Previously, immigrants apprehended at the border were either given the option to voluntarily return to their home country or they were placed in civil immigration proceedings. After Operation Streamline was implemented, nearly all people apprehended at the border who are suspected of having crossed illegally are subject to criminal prosecution. Defendants who are charged with crossing into the U.S. illegally are tried en masse to determine their guilt. Defense attorneys often are responsible for representing anywhere from six to forty immigrants at once. Around 99% of defendants in Operation Streamline proceedings plead guilty. The defendants are charged with a misdemeanor if convicted of crossing the border illegally for the first time, and a felony if it is a repeat offense.

In December, 2009, it was decided in United States v. Roblero-Solis that en masse judicial proceedings like those in Operation Streamline violated Rule 11 in the Federal Rules of Criminal Procedure. Rule 11 states that the court must determine that a guilty plea is voluntarily made by addressing the defendant personally in court. The Roblero-Solis case determined that “personally” means that the judge must address the defendant in a person-to-person manner. Though many courts have changed their procedures to adapt to the ruling, there are still forms of en masse trials practiced at the border.

Support and Criticisms

Proponents of Operation Streamline claim that the harsher prosecution has been an important factor in deterring immigrants from crossing the border illegally. Apprehensions have decreased in certain sectors after 2005, which is seen as a sign of success. For example, the Del Rio, Texas sector saw a decline from 2005 to 2009 of 75% (from 68,510 to 17,082). Similarly, apprehensions declined in Yuma, Arizona by 95% (from 138,438 to 6,951) from 2006 to 2009.

Criticisms of Operation Streamline point to the program’s heavy use of federal court and enforcement resources as a negative aspect. In addition, the prosecution of all illegal border crossings takes the focus away from prosecuting more serious crimes. They claim that the program’s cost is too high for the effectiveness of the work it is accomplishing. In response to the claim that Operation Streamline is an effective deterrent, critics of the program claim that the incentives to cross the border in order to work or be with family are much stronger.