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[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,
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \2\OIG report, pp. 8-10.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \3\OIG report, p.11.
    \4\Congressional Research Service, ``Border Security: Immigration 
Enforcement Between Ports of Entry,'' December 31, 2014, R42138, p. 40.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \5\OIG report, p. 38.
    \6\OIG report, p. 36.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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]
```