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The Appeal Podcast Episode 8: The Racist Zeal of ‘Zero Tolerance’ and Trump’s Anti-Immigrant Escalation

With Appeal reporter Max Rivlin-Nadler.

People protest the separation of children from their parents in front of an immigration detention facility at the Mexican border on June 19, 2018.Credit: Joe Raedle/Getty Images

By now you’ve probably heard of the family separation crisis at the US-Mexico border. What you may not know is how exactly we got to this tipping point. On today’s show we talk with Appeal writer Max Rivlin-Nadler, who’s been following President Trump and Attorney General Jeff Sessions’s ramped up “zero tolerance” approach to immigration. While President Obama sought to limit immigration as well, Trump’s approach goes much further—combining racism, for-profit incarceration, and summary punishment.

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Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember you can follow us on Twitter @TheAppealPod or on Facebook at Appeal Podcast and you can subscribe to us on iTunes. By now you’ve probably heard of the family separation crisis, but this is just one part of a much broader strategy pursued by the Trump administration, which has ramped up immigration persecution using zero-tolerance policies under what they’re calling quote “Operation Streamline.” This enforcement regime has created harsher, more severe sentences and created a more summary deportation mechanism. Our guest Max Rivlin-Nadler is a reporter for The Appeal. He’s been following these developments for the past 18 months and is going to discuss what is in effect a two tier justice system that has turned Trump’s dehumanizing racist language into actual federal policy.

[Begin Clip]

Max Rivlin-Nadler:  Zero tolerance put such a burden on federal courts in terms of these low level of misdemeanor illegal entry charges, that they then had to kind of, in response, adopt this thing called Operation Streamline. Which is a way to basically charge, plead out, and sentence as many people as quickly as possible and kind of toss due process out the window, on the way.

[End Clip]

Adam: Max, thank you so much for coming on.

Max Rivlin-Nadler: Thanks for having me.

Adam: Um, you have written a series of articles over the past few weeks in addition to others, but one theme in a lot of your writing is the notion of zero-tolerance policies specifically in reference to the articles, “Chaos in the Courthouse As Border Arrests Surge” on June 12 and “Trump’s ‘Zero Tolerance’ Immigration Policy Has An Antidote,” that was on July 10, for those who want to check out the articles. So let’s talk about zero-tolerance policy. Can you tell our listeners about what this philosophy means in general, not just for the Trump DoJ and also what it means for, uh, for the broader kind of family separation crisis in Trump’s immigration policies in general. Why is this term so popular and why is it such a shibboleth amongst the kind of far right law and order types?

Max Rivlin-Nadler: Its popular because it sounds good, right? “Zero-tolerance.”

Adam: It does sound good.

Max Rivlin-Nadler: It means, uh, that you know, the days of people just criss crossing the border and coming in without repercussion are over.

Adam: Right.

Max Rivlin-Nadler: Now, of course we know that that was never actually true, right?

Adam: No.

Max Rivlin-Nadler: Obama, of course, had a serious commitment to serious, uh, border security as well as a interior deportations, arresting people from the inside. But the reason why that they liked the idea of zero-tolerance is because it stands in opposition to the idea of catch and release, which is another phrase that they themselves coined. And especially something that Trump has latched onto, which is that when somebody does get apprehended by immigration and customs enforcement or the border patrol at the border, often as their asylum and they are claiming asylum, often knows their asylum plays out in many cases, but not all cases, they do get offered some amount of release during that time. They either get bonded out or they’re immediately released. They’re of course put under supervision, but they are allowed to kind of, uh, not be placed in detention during that time. So the reason they came up with zero-tolerance was to come up with the idea of, ‘When you try to enter this country, it’s not happening, zero-tolerance, we’re going to put you in detention and we’re going to send you back home.’ As it has played out, they have neither the capacity to do that nor really the legal mechanisms to be able to pull that off. But they still cling to this term. So the way it’s actually played out as opposed to the way it sounds are completely different.

Adam: Yeah. It has a kind of like, a tough guy John Wayne, like zero-tolerance, like hang ‘em high and of course catch and release is itself kind of a way of talking about immigrants like their animals, which of course is how they view them. If you spend, if you spend any time looking at any of the border patrol or ICE’s unions, they’re like media apparatus, they have a podcast they record out of Breitbart. It’s, it’s totally, it’s totally out there. And they, and they, yeah, they routinely talk about um, immigrants like they’re animals and I, I suggest if you really want to know what, what ICE or border patrol agents think, what the actual like rank and file think, definitely follow their unions’ media because it’s pretty, it’s, they actually spend a great deal of time criticizing Trump from the right. They think Trump is too soft on immigration. So anyway, just a little depressing side note there. Um, so let’s talk about these bond funds. So we’re, we’re, we’re doing an episode on bond funds for the kind of, I guess you’d say normal criminal courts as we would sort of broadly understand them. What’s fascinating about your work and something that I didn’t really know is that there’s kind of two parallel legal systems, that undocumented persons or, or as Joel Sati calls it, illegalized people, aren’t afforded the same rights at all, they’re not really protected by the constitution, so their bond system is different. They can’t go to like a bail bondsman or use bond funds and they don’t have to put up ten percent, they have to put up a hundred percent. And of course the, the rate of denial of bond is fairly high depending on where you are, which we’ll talk about later. But can you talk to us about this kind of parallel legal system and what it means in terms of how it’s gone up since Trump, in the last 18 months since Trump has taken office and how it’s used as a kind of anti-immigrant bludgeon?

Max Rivlin-Nadler: Right. So I think actually what’s happening right now, and I think what is really confusing for a lot of people, myself included, is that there are three separate legal systems kind of that interact with immigrants. One is the federal, uh, law enforcement, and that’s people who are being, when they refer to zero-tolerance, they’re talking about people being charged criminally, federally, for crossing the border. So that’s what they’re saying when they say zero-tolerance and we should get back to that because that’s a completely different legal mechanism that people will have to deal with.

Adam: Right.

Max Rivlin-Nadler: When people are detained by ICE or border patrol and not referred to the Department of Justice for prosecution, they’re put into the immigration court system where they’re able to fight their removal or claim asylum. During that time, they have a bond set, but it’s not similar, it’s similar in some ways, but not really analogous to what we consider bond. And the third system is state and local court system-

Adam: Right.

Max Rivlin-Nadler: That we’re all familiar with, where a judge sets a bond on low level offenses and it’s gotten a ton of attention, rightly so, that people who have never been convicted of a crime are placed with these onerous bonds and, and sitting in jail for a really long amount of time. Now immigrants and people who cross the border or people who are detained when they’ve already been living here for some time, they get the bond set by immigration judges. And basically the main difference is that in many states in criminal court, judges have to consider or at least feign consideration that somebody has the ability to pay that bond amount. Um, and that the bond amount is somehow related to the crime that they allegedly committed. Whereas in immigration court, um, that’s not necessarily true. They don’t have to consider whether the immigrant or the person who’s been detained has the ability to pay. They could kind of just arbitrarily decide and they do that. And not only that, during these bond hearings, which are tough to get, by the way, because many immigrants are not entitled to them.

Adam: Yeah.

Max Rivlin-Nadler: These bond hearings, the uh, border patrol or ICE agents or whoever the arresting officers are, are allowed to kind of say whatever they’d like to say and hearsay is admitted. All of these things that would not be admitted in a normal court of law as we consider it are allowed to be admitted and considered by the judge. On top of that, the immigrant themselves does not have the right to legal counsel, so an infinitesimally small amount of immigrants going through the system actually have a lawyer at their side. Having a lawyer at your side is one of the major determinations of whether you do get a bond hearing after your initial one where you could then argue that amount down or do you read, you know, point out where your family lives, give real reasons why you should be given an affordable bond and then once you do, if you’re lucky enough to get that bond, having a lawyer is the main determining factor over really whether you are able to stave off removal from the country or to get asylum status.

Adam: Okay, yeah see, I think that most people are unaware of this. When we talk about the family separation crisis, I think that the initial kind of separation mechanism or the kind of clamp down mechanism is oftentimes glossed over and I think it’s something that we really want to really want to pick a part here. So you talk about, um, I think generally one of the hardest things to do when on the quote unquote “left” or whether you’re a reformist or an abolitionist is to, is to understand that there’s a continuity of policy from Obama to Trump and to a large extent from Bush to Obama and so on and so forth while recognizing there are meaningful differences and not trying to flatten those differences. Um, you don’t want to say, you know, Obama was bae and he was perfect, which a lot of people do. And you also don’t want to do this sort of glib, ‘Oh, well Obama did it too.’ Well, okay, there are meaningful differences. So let’s talk about that difference. You, you write that ICE arrests, ICE is the immigration enforcement like strikeforce basically, you say that arrests by ICE are up sharply in the past 18 months. Can you talk about like, and maybe even the raw numbers, like how big of an increase are we talking here in terms of clamp down?

Max Rivlin-Nadler: Here’s the context I would put it in and this goes back to Obama is bae logic, is that they are up a considerable amount. Um, I believe it’s around twenty five percent, um, as from when Trump started, but that still doesn’t touch, it doesn’t come close to the heights under the Obama administration in terms of interior, uh, immigration enforcement. So that would be arrests made, um, of people in courthouses, uh, from county jails or even as we’ve seen them staking out homes, workplaces, etcetera. So Obama, when it comes to interior immigration enforcement at his height, uh, so this would be 2013 and 2014 when he was pushing for a serious immigration deal, the way that he justified this to border hawks was, ‘Hey, I’m not calling for amnesty, I’m not some lovey-dovey lefty. I want secure borders and I want to prove to you that I’m able to enforce immigration law.’

Adam: Yeah. That’s the old Bill Clinton tactic of owning the Republicans by adopting their policies. That’s very clever.

Max Rivlin-Nadler: Um, and, and this is even more striking because if you’re, you know, 2013, 2014, this is year six of Republicans having told him for the first six years of his administration, like, ‘No, we’re not gonna do anything you ask us to. We’re not going to team up. We’re not going to have some grand partisan deal, um, grand bipartisan deal.’ So he stuck to his guns here and that was a grand miscalculation on his part. But when we talk about that the Trump administration uses immigrants as bargaining chips, you know, Trump wants to reunite families, but only if he gets his wall. Well, listen, you know, Obama also, when he was trying to reach this grand bargaining deal had gone after, uh, people with criminal convictions long in the past and recent misdemeanors, uh, crimes of moral turpitude, things like that. Also, as kind of this bargaining tool that he could reach this grand compromise so while, Trump wants to get his wall and essentially to end all legal immigration as well as asylum, um, Obama was, was at the same time, you know, harshly enforcing immigration law on long standing citizens, not citizens, but people who have been living in the country for a very long time in the hopes of this general amnesty for people who, um, we refer to as dreamers and eventually became DACA recipients. And of course he also tried to get their parents through DAPA, some legal status as well. But none of that worked because here we are, um, and, but there are substantive differences between what Trump is doing and what Obama did. And this all feeds back into zero-tolerance, which is zero-tolerance is criminally charging people who cross the border. And this is what has led to the family separations is because if you cross with your kid, you are being put into the federal criminal justice system. You’re being charged by the DoJ and you’re put into the custody of the US Marshals. So you are being separated from your kid basically by being put into two different systems, one for criminals and your kid is going to one for immigrants and eventually the Office of Refugee Resettlement or your kid is being deported. So, uh, that is something that Obama, uh, for the most part never ever did. And that is what, you know, has been the subject of many of my articles is how zero-tolerance put such a burden on federal courts, uh, in terms of these low level misdemeanor illegal entry charges that they then had to kind of in response adopt this thing called Operation Streamline, which is a way to basically charge, plead out and sentence, uh, as many people as quickly as possible and kind of toss due process out the window on the way. And that’s been really discouraging. And that is all Trump.

Adam: Yeah. So there’s a quantitative and a qualitative difference. I think a lot of times the, the, the, those who sort of attempt to kind of do, do, I think even Piers Morgan did it the other day, where he said, ‘Obama was just as bad as.’ They trot out numbers, raw numbers sort of quantitative, but it feels like the qualitative is meaningfully different in terms of the severity of punishment, the use of these ICE raids I believe has gone up significantly. That there is a kind of, um, feeling that there’s a new sheriff in town and that all these, all these forces, all these reactionary forces, all these, I think frankly racist forces within, within the immigration control universe from the DoJ, from Sessions to the, to the actual ICE rank and file is that they could basically do whatever they want.

Max Rivlin-Nadler: Right. And, and I would argue that substantively the new sheriff isn’t actually Trump its Sessions. Because Sessions, he knows what he’s doing unfortunately, in terms of what his end goal is and that’s to end legal immigration to the United States. And in the process what he’s doing is creating criminal histories for large swaths of asylum seekers and people who are entering the country oftentimes looking for work and he believes eventually he will be able to bar from ever legally gaining status through our asylum system or our green card system. And That is really dispiriting and discouraging and insidious, but it’s playing out in plain view.

Adam: One thing you note, which I find super interesting, is that there’s a massive disparity of one’s ability to get asylum or the cancellation of their removal proceedings based on where they’re arrested or where, what county they’re in. So you compare Queens County, New York versus Cameron County, Texas. Now about fifty percent of the cases in Queens County, New York, uh, the person who is seeking relief is granted relief. They’re not, they’re not deported or, or further detained. Whereas in Cameron County has a, has a rate of less than five percent. So to what extent are there massive disparities geographically in how people seeking asylum or relief are treated?

Max Rivlin-Nadler: So this feeds into how important bond is, right? Whereas if you, if you were able to be bonded out of the civil immigration system, you are able to fight your case from the outside and you have much less of a reason to kind of agree to be deported or as they say self deported. Um, you know, in these kinds of terms that make it seem as though it’s a choice when obviously it’s not a choice. If you are sitting in a private detention facility in Texas with less than adequate sanitation, uh, heating, there’s oftentimes abuse by the guards and you’re miles and miles away from effective counsel, right? Because you don’t have many immigrant lawyers. Um, you have a few, but you really don’t. Um, and this is something that people have noted as a lot of people get interested in integration over the past few weeks, is a lot of lawyers have come forward and say, ‘I want to help with people’s immigration cases.’ And they’re like, ‘Oh, great. Come move to the middle of nowhere Arizona or Texas, come move to the desert where these detention centers are.’

Adam: Yeah. And they’re like, ‘Nah, I’m good.’

Max Rivlin-Nadler: Yeah. ‘Oh, can I just come for two weeks or so?’ And that, you know, obviously these, these immigration cases take, take years and years. So if you are in a place like Florence, Arizona or Cameron County, Texas, you are isolated from a good amount of legal assistance and a network that can help you fight your case. So what we, what we don’t know is substantively whether immigration judges are more lenient in either place, but we do know that having a lawyer makes a huge difference and being out in bond has a big difference. I personally know of people who are, um, you have huge Central and South American and South Asian and Eastern European populations in Queens County. Right? Um, it’s the, it’s almost a, I think it’s forty seven percent foreign born.

Adam: Yeah. I think it’s the most diverse place on Earth, if I’m not mistaken.

Max Rivlin-Nadler: Mhmm. I’m from Jackson Heights, it’s incredibly diverse and every other, every other, every other storefront is an immigration lawyer.

Adam: Wow. So it’s not, it’s not some sort of innate racism, although that’s probably a part of it, it’s also just the sort of-

Max Rivlin-Nadler:  Totally.

Adam: The amount of legal availability in terms of, I’m sorry, legal service availability is important.

Max Rivlin-Nadler: And, and this researcher, Emily Ryo, a law professor, she’s just done years and years of research on it and basically any access to legal assistance that immigrants in detention or outside of detention have has this multiplier effect, right? So if you have generations of immigrants who have been through the asylum system, who have been through the legal permanent residents system, they have been able to impart knowledge upon other immigrants. You create this kind of compounding effect, right?

Adam: Right.

Max Rivlin-Nadler: Where if you get bonded out and that’s a really important thing, you need to get bonded out of, uh, immigration detention because that’s how you fight your case. And then you fly to your cousin who lives in the Bronx, uh, and then you live with your cousin as you’re fighting your immigration case, all of a sudden, you know, four years later because there’s a huge backlog in immigration cases, four years later when you finally have your hearing to determine, you know, either a cancellation of removal order or your asylum hearing, you can say, ‘Hey, I have a family here. I have an apartment, I have a job, I have a lawyer. I have all of these roots to the community. I’m not somebody who’s kind of a,’ and this is something integration judges, you know, do tend to care about, ‘who has just come to kind of feast off the state.’ Right? ‘Who is taking advantage of the wealth of America. I’m here to contribute.’

Adam: Yeah. The, a phantom, lazy immigrant that I’ve, I’ve never seen, met or heard about ever, but somehow exists solely in the minds of Breitbart subscribers.

Max Rivlin-Nadler: Right. Yeah. And this has a compounding effect, right? Where Queens, Queens’ economy is doing great, it doesn’t have a shortage of labor, its got a ton of strong immigrant communities that are buying homes, it has found ways to access credit when, or money when that credits been cut off for them. You have these really strong resilient immigrant communities and this kind of bleeds over into the immigration court system. Uh, whereas again in the middle of nowhere, Texas or Arizona or California where people are detained and entered, you are miles and miles away from there. Uh, so the most important thing obviously is getting a lawyer and having one and a free one because people can’t pay for them. But the thing that you definitely need before you get that lawyer is to have your bond paid.

Adam:Are people who are detained as, as immigrants or are they, are they entitled to a lawyer or no?

Max Rivlin-Nadler:  No. They are allowed to have one. But if they don’t have Gideon rights.

Adam: Wow okay. For some, I mean, I knew it was bad, obviously, but for some reason I, I was under the impression that they, that they were at least due counsel, but evidently not.

Max Rivlin-Nadler: No. Uh, so, and again, it’s an incredibly small amount of people who actually do end up with counsel. I believe it’s somewhere around ten percent.

Adam: Yeah. Jesus.

Max Rivlin-Nadler: Yeah. And so actually having a lawyer is, is huge. Right? And what’s been encouraging has been, um, and again, this is a reinforcing factor, right? You have cities like New York, uh, you have cities like San Francisco, that or in California in general, and, and New York State increasingly where people are being guaranteed the right to an immigration lawyer if they are in removal proceedings. And that’s, that’s huge, right? Uh, that, that immediately cuts down on your risk of being deported. Uh, and these are affirmative steps that cities have taken to kind of fight Trump’s deportation machine, but also have roots. Uh, obviously we’re all started under, or for the most part started under Obama when he ramped up the deportation machine. So in the civil immigration system, having access to a lawyer is pretty much everything. And, and that’s, that’s a money issue, right? That’s not a, um, an access issue. That’s not something we have to go to court to fight for. That is specifically if there was enough money being given to immigration lawyers to make it worthwhile for people to move to the desert, uh, for people to actually put down roots in these communities and learn how to be immigration lawyers, because there’s a steep learning curve because it doesn’t resemble pretty much at all our, our, you know, county or state courts or federal courts, then this would be a huge roadblock to what the Trump administration is planning over the next several years.

Adam: Right. So let’s establish the stakes here in terms of what the conditions are . You sort of briefly described how terrible they are. Um, I know that when the family separation crisis first started, there was a kind of general sense, I think among some knee jerk skeptics that this was kind of a moral panic, that this was sort of being blown out of proportion. And then report after report after report came in and realized this is not a moral panic is actually an actual panic. Um, this is something that I think that there was a general sense that Trump and Sessions thought they could sort of just get away with it frankly, that they were doing what I think a lot of quasi fascists in history do, which is test the limits, uh, because they’re seeing whether or not the liberal institutions can push back against the, they’re kind of brazen unlawfulness. Turns out there was pushback. So I want, what I want to do is I want to talk about what the reality of what the conditions are setting aside family separation for a second. I’m assuming most people are vaguely familiar with that. Can we talk about you, you mentioned sexual abuse, you mentioned brutality, very bad living conditions. Can we talk briefly about what these holding centers or like in general and what the average kind of immigrant goes through?

Max Rivlin-Nadler: Right. So the really telling thing is right after Trump’s election, what stock skyrocketed after taking years and years of hits, CoreCivic and The GEO Group, these big private prison companies because they, after years of bad press and push back from the Obama administration, although that didn’t stop them from using it, had suddenly found a huge ally in Trump who was going to create a reason for massive detainment of, of the immigrant population. These private detention centers, of which there are literally hundreds, um, put out across the country, have very little oversight from the federal government, especially more so under the Trump administration. They constantly come under fire for not providing women with, um, sanitation products, not providing people with air conditioning in the summer or as it’s famously has been documented over air conditioning these places for people from Central America who are like completely unaccustomed to such conditions. It’s basically, you know, nothing that we haven’t seen in our own state and federal prison and jail system just done with even less ownership by a workforce that has gone through less training and honestly has far more ability to kind of take out aggression and sexual violence, um, against a population that has very little recourse, right? If you’re a civil immigration detainee, you, it’s very possible you don’t have legal status in this country. Uh, you might not want to shake the boat, uh, you might be worried that it will harm your future immigration status if you make too many complaints. But we’re talking about, you know, desperately horrific conditions run for profit in some of the least resourced areas in the country, staffed by individuals who were desperate for jobs and because these are not pleasant places to work and these are not well paying jobs. And that’s a toxic mix for more and more people. Right now we’ve just crossed 40,000 people in civil immigration custody, um, with the Trump administration expecting that to climb a well above 60,000 in the next couple of years and months. So it’s a really bad recipe for abuse and honestly, you know, you’re seeing all of these reports come out and all of these investigative journalism pieces from inside these private detention facilities and, and giving us glimpses, um, but it’s just scratching the surface. It’s a horrific set of ordeals that people are having to go through being put in these facilities. Not to mention ICE’s reliance on county jails, which we know are home to horrific amounts of abuse. And on top of that increasingly strange accommodations like me and George Joseph reported on a few weeks ago where civil immigration detainees were being put into federal prisons because ICE had simply run out of space in both county jails, private detention facilities, detention facilities that the federal government run and so they basically had to put them in a federal prison that was ill equipped and unable to deal with the influx of, you know, a non-convicted population into a prison that is made for people who are doing time for federal crimes.

Adam: So let’s talk about that because you had  reported exclusively for The Appeal that they were putting immigrant detainees in Oregon in federal prison and they’re being held in general population and they were also being kept in their cells for twenty two to twenty three hours a day. Can you talk about, um, just how kind of haphazard and and it, it’s, it seems like there’s a kind of round them all up and sort them out later mentality which leads to, I mean, I know certain private detentions are old Walmarts or they’re in obscure warehouses. I mean, who is keeping track of this? I think there’s an assumption for most people that there’s this sort of government body that’s kind of watching over these things, but it doesn’t seem like there is really.

Max Rivlin-Nadler: Well something we’re finding out in federal court this week, uh, or we found out last week is, is basically the federal government is doing an incredibly poor job of keeping track of people.

Adam: Right.

Max Rivlin-Nadler: Of course, we remember that famously the Department of Homeland Security was created due to a serious lapse in federal agencies talking with one another about threat, domestic threats to the country, and the idea was if we put them all in one department with one another, they’ll actually communicate.

Adam: A small historical note, that the Department of Homeland Security was originally the Homeland Security Agency. It was proposed in March of 2001. I think that was the reverse engineered origin story, but yeah, there was an effort to consolidate many of these things before 9/11, but 9/11 provided a good reason to give it urgency.

Max Rivlin-Nadler:  So the larger point, these places don’t talk to each other and obviously this played out last week in federal court in San Diego where the Judge Dana Sabraw was asking, normally a deeply conservative judge, but something about family separation somehow opened up his heart and kind of got him to crack down on the government saying, ‘Where are these kids? Where are the parents? How can we not reunify them as soon as possible?’ So that’s a greater illustration of how the federal government has not only not been keeping track of where people are going or having a plan, but how kind of this chaos that they’ve created and I called it “Chaos in the Courts” in my story is actually, and I know people say this all the time, with the Trump administration, like it’s all part of the plan, but it’s kind of part of the plan.

Adam: Right.

Max Rivlin-Nadler: Um, and I’ll explain why. So basically when they created zero-tolerance, the idea was to flood federal courts with all of these misdemeanor illegal entry cases and for years had not been charging these types of cases, uh, in many federal courts and specifically in the Southern District of California, they had never done this in any substantive amount of numbers because they’d rather focus on people who had prior deportations and criminal convictions and maybe give them the felony charge which could result in years in federal prison or they claim they would rather focus on drug traffickers or more serious crimes like that. I don’t ascribe too much, um, motive to prosecutors because I think they basically just do what they are told so that, that was just basically a priority of the Department of Justice. Uh, when zero-tolerance happened, it basically flooded all of the federal courts with these cases and that in turn flooded the holding, the holding capacity of the US Marshals. Right? So the US Marshals are in charge of people, of housing people who are being charged federally and uh, they have a federal jail downtown here in San Diego. They also have, they rent bedspace from county jails as well as private immigration facilities. Because they had so many more individuals in their custody this created a chain reaction through courthouses and detention centers and jails and prisons across the state, which ultimately resulted in the filling up of the very large, uh, Otay Mesa, a immigrant detention facility right on the border here in San Diego County and led to the federal government, uh, kind of throwing up their hands and going, ‘What are we gonna do with all of these people?’ That’s when they branched out to federal prisons. Federal prisons which have seen, uh, being part of the federal government have seen a large amounts of budget cuts. They’ve had their capacity stripped down, they’ve had medical wings closed. The federal population of people in custody has gone down, before this I should say, and so people were basically sent to what had been shuttered parts of federal prisons, even though they were not in federal custody at this point in terms of being charged by the DoJ, they were civil immigration detainees. Uh, and that presents, as we were discussing before, serious problems. So does anybody actually care what happens to these people or what kind of positions they’re put in? No, nobody cares about their health in terms of the federal government. I know that’s being really overly broad so I’ll be very specific here and talk about Jeff Sessions. He doesn’t care what, you know, conditions these people face because both him and his boss Trump have used, you know, really a disgusting language comparing people to animals, things like that. And, and honestly, they could care less what conditions they face.


Adam: Yep.

Max Rivlin-Nadler: What the end goal was ultimately of this zero-tolerance was to create Operation Streamline in the Southern District of California. If you create enough chaos, you’re able to create this expedited adjudication system that had been practiced along the southwest border since the Bush era. So in Arizona and Texas, and this has gotten a lot of publicity, um, has been these kind of trying people for federal crimes en masse in a, in a number of minutes. I know that The Intercept has done some really great reporting on that. But the district, Southern District of California has for many, many years, resisted this kind of en masse due process violating functions of the court, basically saying ‘We don’t do things like that here.’ By forcing the issue starting last week, the Southern District finally acquiesced, and you know, I’ve been sitting in these federal charging, uh, these first appearances for months now.

Adam: Right.

Max Rivlin-Nadler: And this process takes weeks, right? So you, you, you get charged, you get a bail amount, you talk through a lawyer, lawyer raises objections, they bring it to trial sometimes to take a plea deal. Sometimes this is all part of a larger negotiation that resembles very much our larger criminal justice system and what we’ve come to expect from it. Under Operation Streamline though, what used to take possibly weeks or at least days now takes twenty two minutes.

Adam: Wow.

Max Rivlin-Nadler: Yeah.

Adam: Yeah. So it’s all just completely summary. Basically kangaroo courts, like they’re just coming in and coming out.

Max Rivlin-Nadler: They’re coming in with their clothes that they were arrested on because they were never put into custody. Right? So what I was saying before is that this chaos had a goal. Well, the goal has been reached, which was basically you busted the federal court system, you busted a, the ability of, of the federal government to detain this many people in custody and they’ve created this expedited prosecution program known as Streamline where you can be picked up at the border, brought to a border patrol station, you do not enter US Marshals custody, uh, you sleep on the floor of a border patrol station, which is not meant to house people for any long duration of time along with thirty to forty other people. You’re given space blankets, maybe a burrito, a lot of times people are not given breakfast and then you are driven to the basement of the federal building down here in downtown San Diego where you meet with your lawyer in a large room at the same time that many other people are meeting with their lawyers, uh, and you are brought out in chains, uh, you are not afforded much privacy that usually comes along with being given a lawyer and having a meeting with your lawyer. And basically by the end of the afternoon, you are already pled guilty to a misdemeanor, illegal entry, you’ve, for the most part, people are taking time served please. Uh, so you are immediately released and if you’re a Mexican citizen, you are back in Mexico, uh, within twenty four hours. Uh, but now you have an illegal entry misdemeanor. And that was the goal of, that was one of the goals of zero-tolerance was to create this expedited prosecution program-

Adam:  And the idea being that people with misdemeanors are less likely to try coming in again because then it becomes a felony, right? It becomes something more severe then they put them in prison for some meaningless amount of time.

Max Rivlin-Nadler: Yeah. Then you do, you do years and people do this all the time because people go back and forth to Mexico because they have family in the United States or there’s work in the United States or they’ve been deported before. You’re doing years and years in federal prison for crossing, you know, again, uh, what many considered to be an imaginary line, I certainly do. And nothing’s going to stop you. Lawyers have often told me, ‘Well, nothing’s going to stop this guy. No matter how many years you give them this guy or this woman, um, their family lives here. They’re going to try to come back, period.’ Uh, and many people successfully do so.

Adam: Yeah. Thus the name Streamline, right?

Max Rivlin-Nadler: Yeah. Operation Streamline. And if I could get even more dystopic, just really quick-

Adam: Please by all means. Be as dystopic as you can. I’m fascinated by this so by all means.

Max Rivlin-Nadler: That’s what this podcast is for, right?

Adam: Yeah.

Max Rivlin-Nadler: Although hopefully we’ll end on a positive note. Um, but basically what, what Sessions figured out he could do is basically, ‘Okay, I could create Streamline in the Southern District of California. I could create zero-tolerance. I can get as many immigrants to have misdemeanor illegal entry charges as possible.’ Okay. That’s nice and good and all. And certainly it has a big impact upon them if they try to come back, they can get a felony, but it has zero bearing on their asylum cases. Your federal charge for illegal entry has no bearing on whether you will eventually get legal status in the country or be able to remain. And that’s baked into the INA, that’s in our laws and that is something that he has been drafting and circulating and kind of trying to create new legal frameworks to basically bar people who have been given illegal entry convictions, the ability to ever gain legal status in the country. And so, you know, we mentioned that earlier, but that’s, that’s his goal is not only as we were saying to end legal status, to end legal immigration forever, but, but to basically create this insurmountable barrier because you were tried and pled guilty and sentenced within fifteen minutes.

Adam: So let’s, let’s end on a, if not a  positive note, I think a helpful note. So like if I’m, if I’m listening and I’m indignant or outraged or sort of thinking, what can we do? What, what can people do in your, in your opinion, as someone who covers this everyday?

Max Rivlin-Nadler:  So there’s actually, I know this is super overwhelming and people often feel debilitated by the bad news, but there are several things you can do. So one thing you can do is to bond people out. Uh, and that is a really easy thing to do if you are near any of these facilities or can get in touch with any of these organizations that post immigrant bond.

Adam: What are some of these, what are some of these groups?

Max Rivlin-Nadler: The most famous ones recently would be RAICES, which we know has gotten a ton of money. They bond people out. There’s Immigrant Family Defense Fund in San Francisco.


Adam: In your opinion, which bond funds are the most needy, which are the ones that have the highest quotient of like impact versus lack of funds?

Max Rivlin-Nadler: Right. Well, that’s, so, that’s a really tough thing to quantify, right? Because the need is so great because you have to pay different than the, than the criminal system in the civil immigration system, you have to pay the entire bond up front and bonds under Trump and the Trump administration, as we have discussed, have gone way up. And so that’s a huge deal. Whereas, um, and when we think of bond funds in the criminal justice system, you’re thinking of, okay, we’re just going to pay ten percent of that bond because that’s all that’s needed. Instead, these bond funds have to pay like $8,000, $10,000, uh, you know, $1,500. They need to raise a staggering amount of money. So one of the main issues that I see is a problem of money and what was discussed by Benita Jain, who helps run the Immigrant Family Defense Fund, which operates in Oakland and the greater Alameda County, uh, was that, you know, if we were given $10 billion tomorrow, that would be a great start because even though RAICES got $20 million over, you know, this Facebook fundraiser that that’s still kind of accounts for maybe they could free two thousand people out of civil immigration confinement.

Adam: Yeah.

Max Rivlin-Nadler: So I’m not going to put any of these on a pedestal. I’m going to post these on my Twitter account when we post the podcast. I’ve been posting them when people send them to me.

Adam: Okay great.

Max Rivlin-Nadler:  I would just say this, find the one closest to you and give to that and then also find the one that you think is the most geographically alienated and give to that as well. Uh, I think that’s just a good rule of thumb is that there are some that are really well financed. We know because they’ve had really public donations. But even then, the need is so great-

Adam: Yeah they still need money.

Max Rivlin-Nadler: Right. The money is going to good use and the need of super great. The other type of bond fund I would advocate on behalf of is now over to the federal system and this one actually stands a really clear line of your donation will result in something, which is that if you bond someone out of federal custody, somebody who’s being charged with illegal entry, right? Somebody who’s fighting their case and hasn’t taken the plea through Operation Streamline, um, first off, many of the people who have gone to trial for misdemeanor illegal entry have won. So, uh, and that’s based on good federal defenders as well as shoddy work by border patrol. They had, these cases have been dismissed when they’ve been to trial. But if somebody opts to go take a bond and maybe that bond is set at $1,500, $2,500, much lower than immigrant, civil immigration detainees bonds. If they get bonded out, they get placed into ICE custody. So they leave US Marshals custody, they go to ICE custody and that’s because ICE has put a detainer on them because they’re an immigrant and they want to eventually deport them, but one thing that ICE consistently refuses to do is to bring them back to court for their criminal case. So if you bond someone out, it is almost certain that their criminal federal case will be dismissed and they will not have this illegal entry conviction on their record and that has a huge impact if they get caught again coming over the border and of course if Jeff Sessions has his way in terms of rewriting federal immigration law.

Adam: Right.

Max Rivlin-Nadler:  I know there’s a bond fund being run in the Southern District of California. That started bonding people out last week. And that actually because when you pay a bond for civil immigration detainees, those things can take weeks and months and years to resolve. So bond funds often don’t see their money come back. As one bond fund organizer said to me, ‘When we pay a bond, we assume that money is gone’ as opposed to at the federal level, from dismissal to getting the bond back is just basically a few weeks and so the bond fund is able to replenish it so your money can be used again and again and again to help people defeat their criminal cases. So I think that’s also a really great place to give money.

Adam: I mean, it’s unfortunate, but it’s true in all courts. Just even being out of jail gives one, I mean statistically speaking, your odds of beating the case are meaningfully increased because you have more resources, more time, you’re not living under the stress, you’re more likely to plea out, of course, when you’re in terrible conditions because you just want to get it over with. I’m glad we ended on a note of like what people can actually do, so we’re not just a bunch of nihilists.

Max Rivlin-Nadler: Yeah, give money. That’s money is really important here.

Adam: I wish there was something sexier, but really getting, getting people out of jail is actually super important. I know a lot of bond funds, they ideologically don’t want to be around in two, three years, and I know this is different than maybe the immigration bond funds, but um, because what you don’t want to do is create a system where you’re feeding money back into the system in perpetuity, that you actually need to use it as a, as an avenue for reform. So the goal, the goal is to make the bond funds unnecessary.

Max Rivlin-Nadler: Totally. José Serrano, a congressman from New York, has put forth legislation that would keep bonds in immigration court at the level that people can pay it and the judges will have to start considering ability to pay. That’s obviously incremental reform. Bail, as we all know, is totally unnecessary. Cash bail is not practiced in pretty much basically any other country, but that’s a step one could take. So if you are the type of person who says, you know, ‘I don’t have any money in my pocket, but I sure have my vote,’ uh, make sure to show up in November because that is the type of legislation that could have a huge impact on people’s lives.

Adam: Okay, great. This was super informative.

Max Rivlin-Nadler: Awesome.

Adam: Very, very, very informative. Thank you so much.

Max Rivlin-Nadler: Yeah, thanks so much Adam.

Adam: That was Max Rivlin-Nadler, journalist and writer for The Appeal. This has been The Appeal Podcast. Remember you can follow us on social media @TheAppealPod or on Facebook at The Appeal Podcast and you can subscribe to us on iTunes. The show is produced by Florence Barrau-Adams, production assistant is Trendel Lightburn, the executive producer is Sarah Leonard, and I’m your host Adam Johnson. Thank you so much for joining us. We’ll see you next week.