A three-judge panel of the U.S. Court of Appeals for the 9th Circuit weighed constitutional challenges to the Trump administration’s “zero tolerance” immigration prosecutions Monday, considering a pair of cases that could upend the fast-track legal procedures for charging migrants en masse on criminal border-crossing charges.
The cases, filed by Federal Public Defenders of San Diego, apply to two specific migrants. But, if successful, they could provide a template for attorneys across the border to challenge a migrant prosecution system that critics have long derided as constitutionally questionable.
The criminal immigration system became a lightning rod for criticism of President Donald Trump’s handling of the issue after the White House used it to enact a six-week experiment with systematic family separations at the border last year.
One of the lawsuits argues that the Justice Department created a substandard legal system in the Southern District of California specifically for migrants facing border-crossing prosecutions.
Unlike other detainees, those arrested at the border for illegal entry are locked up in U.S. Border Patrol facilities not intended to house detainees for more than 12 hours, instead of in local jails, as are other defendants facing federal criminal charges. The migrant detainees met with their lawyers in a courthouse parking lot, shackled at the wrists and ankles, and had only one hour to meet with a court-appointed attorney before deciding how to plead, the lawsuit says.
“Every other person prosecuted for a petty offense in the Southern District of California is treated differently,” Kara Hartzler of Federal Public Defenders told the panel. “And that’s a problem.”
Federal prosecutors have funneled migrants en masse through similarly truncated systems across the border since 2005, with the advent of Operation Streamline ― a team effort by the departments of Justice and Homeland Security to prosecute and jail migrants under federal criminal law before deporting them in separate proceedings under civil law. But San Diego had resisted the implementation of Streamline before Trump’s election.
Hartzler likened the district’s new immigration prosecution system to the “separate but equal” racial segregation in the school system that the Supreme Court overturned in 1954.
The lawsuit asks the 9th Circuit to overturn Oscar Chavez-Diaz’s illegal entry conviction from last year, contending that the separate legal proceedings for migrants discriminated against Latin American nationals like him in violation of the 14th Amendment’s equal protection clause and the Fifth Amendment right to due process.
Chavez had no right to challenge the process on constitutional grounds, Assistant U.S. Attorney Benjamin Holley argued for the Trump administration, because he accepted a plea deal.
U.S. Circuit Judge Daniel Collins, a Trump appointee, appeared skeptical of that logic and critical of the conditions created to prosecute migrants in San Diego. He asked Holley whether it would be constitutional for the government to prosecute people of one race on one floor of a courthouse “and those of another race are going to go to another floor and it’s a hellhole?”
That kind of a system would stand if the person pleaded guilty, Holley said. Regardless, he defended the separate proceedings for migrants facing illegal entry prosecutions, saying they were unique because of the charge, not because the overwhelming majority of defendants happened to be Latin American migrants.
“Nothing about the way the court has set up this docket shocks the conscience,” Holley told the panel.
The panel heard another case Monday that seeks to overturn the illegal entry conviction of Clauda Hernandez-Becerra, arguing that she did not understand the proceedings and was coerced into accepting a plea deal.
Hernandez-Becerra arrived in the United States last year, soon after then-Attorney General Jeff Sessions announced the “zero tolerance” policy of prosecuting as many illegal entry cases as possible.
The 18-year-old woman lost contact with a family member while crossing. A Border Patrol agent found her hiding in the brush a few hundred feet from the border. She spent the next three days in a cold Border Patrol holding facility with 24-hour lighting, irregular meals and no access to a shower or a change of clothes.
She spent much of her limited time meeting in the courthouse parking lot with her lawyer and crying, the lawsuit says. Several lawyers raised complaints about the Streamline process and the conditions in Border Patrol detention the day she went before a magistrate judge. Deprived of both food and sleep and fearful of remaining locked up in a holding cell unintended for long-term use, Hernandez-Becerra’s agreement to the plea deal amounted to coercion, the lawsuit argues.
A decision in Hernandez-Becerra’s favor would have major implications, given that the vast majority of illegal entry prosecutions are closed by hastily arranged plea deals with migrants who understand little of what’s happening. A team with Ceres Policy Research, a criminal justice reform group, interviewed 46 migrants facing Streamline proceedings this year and found that fewer than 20% understood they were being convicted of a crime.
But the panel appeared less receptive to the arguments in Hernandez-Becerra’s case.
On the day Hernandez-Becerra accepted her plea deal, court-appointed lawyers “voiced their concerns ― their humanitarian feelings,” Circuit Judge Carlos Tiburcio Bea said. “But was there a valid legal objection?”
CORRECTION: An earlier version of this article said the lawsuits were filed by the San Diego County Public Defender Office. They were filed by Federal Public Defenders of San Diego.
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