Resisting Mass Immigrant Prosecutions

82 Pages Posted: 20 Dec 2023

See all articles by Eric S. Fish

Eric S. Fish

University of California, Davis - School of Law

Date Written: December 9, 2023

Abstract

Over the last two decades, U.S. courts have convicted hundreds of thousands of Latin American defendants for misdemeanor immigration crimes. This has mostly happened through a federal program called “Operation Streamline.” In that program, immigrants are convicted without any semblance of due process. They are charged with the crime of entering the United States, have a brief conversation with a defense lawyer, plead guilty in a mass plea hearing with up to one hundred defendants at once, and receive their sentence—all in a single court appearance. In 2018, this program encountered its first organized resistance. In that year the Trump Administration tried to bring Operation Streamline to California for the first time. There, immigrant defendants and their lawyers did not acquiesce to a norm of immediate guilty pleas. Instead, they fought their cases by securing release on bond, raising objections, taking their cases to trial, and appealing their convictions. This unexpected resistance prevented federal prosecutors from processing dozens of cases per day. In 2021, something similar happened in Texas. Governor Greg Abbott created a state law version of Operation Streamline called “Operation Lone Star.” Immigrant defendants and their lawyers have resisted this program as well, securing release on bond and fighting through motions, writs, and trials.


This Article documents, analyzes, and draws lessons from these immigrants’ defiance. It does so using court records, transcripts, and firsthand accounts. In the process this Article uncovers the institutional logic of these mass immigrant prosecution systems, which have become a major feature of U.S. immigration policy. It shows how these systems prioritize efficiency above all else, resulting in inferior jail conditions, summary court proceedings, and coerced guilty pleas. In particular, it critiques the role defense lawyers typically play in these systems. Defense lawyers are expected to facilitate these prosecutions by coaching their clients to plead guilty quickly. Their presence gives the proceedings a false legitimacy, as these systems are designed to prevent lawyers from providing competent counsel. As this Article argues, defense lawyers should instead undermine these systems by helping defendants assert their rights and litigate. Indeed, immigrant defendants have powerful incentives to fight their cases if their lawyers will help them. The battles in San Diego and Texas reveal several effective strategies for immigrant defendants to resist mass criminalization through collective litigation. These include pushing for bail, going to trial, taking legal issues up on appeal, forcing prosecutors and judges to spend time on each case, and coordinating with outside groups like bail funds, immigration organizations, activists, and the media.

Keywords: criminal law, criminal procedure, immigration, Operation Streamline, Operation Lone Star, due process, immigrants' rights, professional ethics, defense lawyer ethics, immigration crimes, 1325, misdemeanors, mass misdemeanor justice, Texas

Suggested Citation

Fish, Eric S., Resisting Mass Immigrant Prosecutions (December 9, 2023). Yale Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4659514

Eric S. Fish (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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