What's Clogging the Courts? Ask America's Busiest Judge

"We have seen significant reductions and apprehensions, a decrease in the recidivism rate of aliens prosecuted under the program, meaning once they get prosecuted, they stop trying to come in again, and a reduction in smuggling — in smuggling organizations and illegal entries in the relevant urban areas," he said.

"If you look at apprehensions, you could see a steady decrease from the time we began these initiatives to the present. The reason this works is because these illegal migrants come to realize that violating the law will not simply send them back to try over again, but will require them to actually serve some short period of time in a jail or prison setting, and will brand them as having been violators of the law," he said.

Homeland Security points to one county, Yuma, Ariz., as proof of the operation's success. In 2006, border patrol officials there apprehended 118,459 illegal aliens. Following Streamline's implementation in 2007, apprehensions fell to 37,992.

"Is Operation Streamline working?" asked Jaime Castillo, a U.S. Border Patrol spokesman. "Absolutely it is. Along with increased manpower, increased technology and increased infrastructure, Operation Streamline has allowed us to gain operational control of our borders."

Others, however, are less certain that Streamline can be credited for a decrease in apprehensions in the past year and contend that looking just at apprehensions, rather than who is being apprehended, misses the point.

"A lot of the recent reductions can be attributed to the poor economy," said Kathleen Walker, an immigration lawyer in El Paso, Texas, and former president of the American Immigration Lawyers Association.

"Chertoff is just looking at the numbers, and as a result is missing what really matters. Benefit analysis is thrown aside in an effort to get bigger numbers. They're using a big hammer to get as many prosecutions as possible, but they should be using a better hammer to go after drug traffickers and human traffickers," she said.

As a result of Streamline, prosecutors, she said, are not permitted to use their discretion in choosing which cases to pursue. And as a result of bloated caseloads, defense attorneys cannot adequately prepare their cases.

"Just because the courts are loaded up with cases, doesn't mean they're loaded up with criminals," she said.

More Cases, More Judges

In March, the Senate approved a bill to appoint 38 more district judges. But seats won't be filled until at least 2009.

In Las Cruces, Brack is the only district judge. There are also five federal magistrate judges there who hear most of the misdemeanor cases involving first-time border violators. But Brack hears the felonies -- aliens caught crossing the border a second time.

Many of those aliens have spent nearly their entire lives on the U.S. side of the border, he said.

"A typical case is a 22- or 23-year-old father of two who was brought here when he was 2 or 3, lived here his entire life, went to Las Cruces High school and has two kids who are American citizens. He gets, say, a DWI, and all of a sudden his lack of status is discovered and he is sent back to Mexico, even though he knows nothing about the country, has no family there, and barely speaks Spanish. What else is he going to do but turn around and cross the border again? And if he does and he gets caught, that's a felony with real prison time and another deportation," he said.

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