The Yale Law Journal

April 2024

Resisting Mass Immigrant Prosecutions

Immigration LawCriminal Law

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 California and Texas reveal several effective legal strategies for immigrant defendants to resist mass criminalization. They also illustrate how criminal defense lawyers can pursue systemic litigation while honoring their duties to individual clients. The keys are to seek out situations where a defendant can safely assert their procedural rights, and to only waive those rights when doing so benefits the defendant.

author. Acting Professor of Law, University of California Davis. For their valuable help, the author would like to thank Michelle Angeles, Ahilan Arulanantham, Nila Bala, Karrigan Börk,Chesa Boudin, Marcus Bourassa, Vicki Brambl, Jennifer Chacón, Linus Chan, Jack Chin, Lauren Clark, Ben Davis, Ingrid Eagly, Russell Engler, Sheldon Evans, Becky Fish, Elana Fogel, Russell Gold, Kara Hartzler, Nora Hirozawa, Saul Huerta, Amrutha Jindal, Irene Joe, Elizabeth Joh, Josh Jones, Elena Kay, Doug Keller, Amy Kimpel, Sean McGuire, Amelia Miazad, Daniel Morales, Melissa Mortazavi, Jesus Mosqueda, Jamal Muhammad, Menesh Patel, Genesis Rodriguez Fish, Roxana Sandoval, Jon Sands, Brian Soucek, Ryan Stitt, Aaron Tang, Emerald Tse, Lisa Washington, Rebecca Wexler, Lauren Williams, Maggie Wittlin, Jason Wong, Ron Wright, and participants in the 2023 Association of American Law Schools “New Voices in Professional Responsibility” Program, the 2023 Law and Society Association panel “U.S. Immigration Prosecution: Priorities, Discretion, and Resistance,” and the 2022 Crimfest immigration panel. Thank you also to Lucía Baca and the staff of the Yale Law Journal for their excellent editing.


In 2018, Attorney General Jeff Sessions announced a “zero-tolerance policy” for undocumented immigration.1 In a speech in San Diego, he declared, “If you cross this border unlawfully, then we will prosecute you. It’s that simple.”2 And through a memorandum, he directed federal prosecutors in the districts along the United States-Mexico border to seek to file criminal charges against every person found crossing the border without permission.3 This meant that tens of thousands of immigrants would be charged with the misdemeanor of unlawfully entering the United States.4 And this included, infamously, immigrant parents whom the government would separate from their children.5 Federal courthouses near the border had spent over a decade processing tens of thousands of these misdemeanor cases each year through a program called Operation Streamline.6 That program began in 2005 and features daily court sessions in which dozens of defendants are brought into a courtroom, have a brief conversation with a defense lawyer, plead guilty in a mass plea hearing, and receive a sentence—all at their first court appearance.7 But the Southern District of California had not adopted Operation Streamline, because federal prosecutors there did not prioritize misdemeanor entry cases.8 According to the Trump Administration, it was time for California to get with the program. The zero-tolerance policy thus brought Operation Streamline to California for the first time. The U.S. Attorney’s Office in San Diego announced a plan to prosecute up to 100 people per day for unlawful entry.9 The judges of the Southern District of California agreed to create a separate Streamline court, and it began processing defendants on July 9, 2018.10

Things did not go as planned. From the beginning, defendants and their court-appointed lawyers resisted Operation Streamline in California. In court, defense lawyers repeatedly raised objections to the system and to their clients’ treatment.11 These objections and other logistical problems slowed down the proceedings, such that court often lasted late into the evening.12 Because of these long court sessions, the judges announced on September 17 that they would no longer accept same-day guilty pleas.13 This change made court much more manageable and also drastically limited the number of cases that prosecutors could bring each day. At the same time, defendants sought and obtained release on bond. For the first several months of California’s Streamline system, private individuals and a nonprofit called The Bail Project (TBP) posted bond for most defendants. And because the government elected to deport these defendants as soon as their bonds were posted, their criminal cases were dismissed. Thus, from July to October 2018, over 1,000 Streamline defendants had their cases dismissed after posting bond and being deported.14 Then in October, the government announced that defendants released on bond would no longer be deported. This meant that hundreds of defendants could stay with their families in the United States while their criminal cases were ongoing.15 As a result, at least eighty-six Streamline cases went all the way to trial,16 and at least twenty of the defendants in those cases won their trials.17

Defendants also appealed their convictions, many after having pled guilty. In one case alone, United States v. Corrales-Vazquez, the Ninth Circuit caused nearly 500 Streamline convictions to be reversed.18 Because of these efforts, San Diego’s Streamline program drained considerable government resources. The Department of Justice released a report in 2021 finding that the Streamline program had placed a “massive burden” on federal prosecutors in California, requiring up to sixty attorney hours for an individual misdemeanor case and diverting resources from other types of cases.19 By the time the COVID-19 pandemic ended California’s Streamline program in 2020, it was processing far fewer cases than it had when it began.20 And federal prosecutors never got close to their initial goal of 100 defendants per day.

A similar conflict is now unfolding in Texas. In March 2021, Governor Greg Abbott announced the creation of Operation Lone Star.21 Much like Operation Streamline, Operation Lone Star involves charging undocumented immigrants en masse with misdemeanors—namely, state trespassing charges. Such charges have been brought against thousands of defendants in several Texas counties. The largest number have been brought in Kinney County, which prosecuted more than 3,500 immigrants for misdemeanor trespassing between August 2021 and July 2022.22 Operation Lone Star has processed so many cases by conducting court almost exclusively through the online video communication platform Zoom. Defendants and defense lawyers in Texas have fought these prosecutions with tactics similar to those used in San Diego. They have sought release on bond and have successfully obtained it in thousands of cases. Many defendants have even been released from jail without monetary bail conditions because the government failed to file charges on time.23 After defendants post bond they are usually deported, but their cases are not dismissed. This has created a bizarre situation in which hundreds of people who were removed from the United States have ongoing misdemeanor cases in Texas.24 The defendants are currently litigating to force Texas prosecutors to either dismiss their cases or to work with the federal government to admit them into the country for trials.25

Defendants have also brought numerous successful legal challenges to Operation Lone Star. In one case, a Texas state judge found that these prosecutions violate the Supremacy Clause because state governments cannot set immigration policy.26 And in dozens of cases, state judges have dismissed Operation Lone Star prosecutions because of unconstitutional sex discrimination, since until recently only men were being charged under the program.27 These efforts have undermined Governor Abbott’s goal of convicting large numbers of immigrants for misdemeanor trespassing. So far, fewer than half of the cases charged have ended with a defendant pleading guilty while in custody.28 Refusing to plead guilty not only allows defendants to potentially avoid conviction, but it also forces the state to pour more time and resources into these cases.

These two stories are instructive case studies in collective resistance to mass criminalization.29 From 2005 to 2018, Operation Streamline’s mass immigrant prosecutions proceeded without disruption. Federal courts in Texas, Arizona, and New Mexico processed dozens of people a day—sometimes up to a hundred—in collective plea hearings without meaningful due process. These prosecutions became a basic feature of U.S. immigration policy and were expanded during the Bush, Obama, and Trump Administrations.30 But the recent events in California and Texas highlight that programs like Operation Streamline and Operation Lone Star can be successfully resisted. Such programs only function smoothly if they can coerce defendants into rapid guilty pleas. They achieve this through pretrial detention, exploding plea offers, and denial of effective defense counsel. When a significant number of defendants actually fight their cases, however, it is a disaster for these programs. With so many defendants being processed at once, any adversary litigation slows the system down and wastes significant judicial and prosecutorial resources.31 Mass immigrant prosecutions are thus uniquely susceptible to plea-bargain strikes—collective attempts by defendants to refuse immediate plea deals and instead litigate their cases. And many immigrant defendants have strong incentives to fight the government’s efforts to convict them, due to their desire to remain in the United States.

Of course, these systems set up powerful barriers to fighting a case. And they do so, in large part, by creating ethical conflicts of interest for defense attorneys. Court-appointed defense counsel will have a much easier job if they simply meet their clients, convince them to take the plea-bargain offer, and coach them through the guilty plea. If a lawyer tries to fight the system, they make their work more difficult and risk backlash from prosecutors and judges. This lack of incentive to fight may help explain why so few Streamline prosecutions were challenged before 2018. Indeed, these systems depend on defense lawyers being willing to compromise their clients’ rights. Many defendants in these systems do not understand the legal process they are caught in, and a brief conversation with a lawyer through an interpreter is inadequate to provide such understanding.32 But judges demand that defense lawyers acquiesce in defendants’ pleas by affirming that their clients’ rights are being waived knowingly and voluntarily.33 If a lawyer points out that their client might not understand what is happening, or that their due-process or Sixth Amendment rights have been compromised, then the client could get more jail time. And individual defendants often have strong reasons to plead guilty immediately, especially if they cannot get out on bond.

A defense lawyer cannot, of course, reject their client’s desire for a plea deal in order to wage a larger war against the system. It is fundamental that the client chooses the goals of the representation, especially whether to accept any plea offers.34 Thus defense lawyers face a classic prisoner’s dilemma—a conflict between individual defendants’ interest in getting out of jail sooner, and all defendants’ interest in slowing the system down to preserve due process.35 This conflict creates vexing ethical and practical problems for any defense attorneys who wish to protect their clients’ rights.

So how can defendants and their lawyers act collectively to resist these systems, which create such powerful incentives to acquiesce? This Article explores that question through detailed qualitative analysis of the fights over Operation Streamline and Operation Lone Star. Its main sources of data are court transcripts, audio recordings, court calendars, legal filings, judicial decisions, participant narratives, and interviews concerning both programs. In addition, the author was a federal public defender in San Diego during the period discussed herein and represented several Operation Streamline defendants. Consequently, some claims in this Article are based on firsthand observation of the system.

This Article makes three main contributions: first, it describes mass immigrant prosecution systems in detail, with a particular focus on Operation Streamline in San Diego and Operation Lone Star in Texas. It explains these systems’ internal logic, documents the experiences of defendants caught in them, and situates them in larger scholarly conversations over plea bargaining, mass misdemeanor justice, and the criminalization of immigrants.36

Second, the Article explores the ethical conflicts that mass immigrant prosecutions, and the decision over whether to resist them, create for defense attorneys. These programs pressure defense lawyers to provide system-legitimizing lies: that the defendant understands what is happening, has knowingly waived their rights, and has been given constitutionally adequate counsel. If a lawyer refuses to say these things, judges and prosecutors will threaten their clients with further jail time. But if lawyers decide instead to fight these programs, they risk turning their clients into instruments for a larger system-reform project. While slowing down or breaking these systems may benefit the broad population of clients, it can harm clients in individual cases. Indeed, fast-paced plea systems like these only work if they can create such conflicts of interest. This problem connects with the larger debate over the ethics and practicality of plea-bargain strikes.37 The Article argues that lawyers can, in some circumstances, both ethically represent their individual clients and use their clients’ cases as weapons against an unjust system. To do so, defense lawyers must orchestrate a situation where clients’ interests are helped (or at least not harmed) by litigating. This means finding ways to impose costs on the system without hurting individual defendants.

Third, by providing detailed accounts of the fights in San Diego and Texas, this Article functions as a kind of how-to guide for defendants and defense lawyers in future mass immigrant prosecution systems. Operation Streamline was discontinued during the COVID-19 pandemic, but it will likely return in any future anti-immigrant presidential administration. And Operation Lone Star has furnished a new model for state governments to emulate. The details of the fights in San Diego and Texas will be useful for defendants, attorneys, and activists who find themselves resisting such programs in the years to come.

This Article is organized into three Parts. Part I chronicles the origins and evolution of Operation Streamline, as well as the Trump Administration’s efforts to bring it to California and the Texas government’s efforts to create a state-law version with Operation Lone Star. Part II provides an internal account of these mass immigrant prosecution systems, focusing on their use of coerced guilty pleas to eliminate due process, the bewildering experience of Latin American defendants processed through them, and the ethical conflicts they create for defense lawyers. Part III describes strategies that defense lawyers can use to undermine these systems while also honoring their ethical duties to individual clients. It focuses on immigrants’ incentives to fight their cases, the importance of bail, the game theory of threatening to go to trial, appellate strategy, and tactics to slow the system down even when pleading guilty. It also considers strategic questions at the institutional level, exploring how defense lawyers can coordinate effectively with one another and with outside groups, the importance of creating external political pressure, and the need to begin fighting these systems fast before they are firmly established.