Migrant families left broken at the border
Questionable federal policy separates parents and children
Patricia Mejia gathered her three young children and made the arduous journey through Mexico to the U.S. border to escape El Salvador’s often deadly violence.
When Border Patrol agents found the family near El Paso’s international bridge this fall, Mejia had the children’s birth certificates and said she wanted to ask for asylum and join her sister in Houston. She told the agents that a gang had threatened to kill her.
Up until a few months ago, the family would most likely have been detained together and released with instructions to appear in immigration court. There they could argue for asylum through a civil proceeding.
But under President Donald Trump’s clampdown on immigration, Mejia was imprisoned for the criminal charge of illegally crossing the border, and her children were taken away and placed in federal foster care.
The White House threatened
earlier this year to separate parents and children at the border, but backed off amid outrage. Then, in April, Attorney General Jeff Sessions ordered federal prosecutors to ramp up criminal charges for immigration offenses such as crossing the border without authorization. The effect, advocates say, was tantamount to a de-facto policy of family separation.
The Houston Chronicle has identified 22 cases since June in which parents like Mejia with no history of immigration violations were prosecuted for the misdemeanor crime of improper entry and had their children removed. Minors cannot be kept in federal prison.
Defense attorneys cite dozens more such cases. Groups who care for unaccompanied children report hundreds of recent separations, in which parents often lose touch with children in an opaque federal system involving a litany of agencies. The government declined to release its own statistics.
By the time Mejia discovered her kids were in a New York shelter for migrant children, she was frantic. She pleaded guilty to the misdemeanor and told an attorney she was abandoning asylum.
“Her biggest concern now is how to get the children back so that they can return with her,” said Iliana Holguin, who consulted the mother in prison.
She remains in a West Texas immigration facility and it’s unclear what happened to her children, though they likely were released to Mejia’s sister.
The administration has promised to end the practice of “catch and release” in which migrants are freed to wait until their cases are heard in the immigration courts. But it has been constrained by a landmark 1997 federal settlement, known as the Flores Agreement, that bars the prolonged detention of migrant children even when they are with their parents. In an October speech in Austin, Sessions blamed such “loopholes” for a record surge of migrant families requesting asylum over the past eight years.
“After their release, many of these people simply disappeared,” the attorney general said. “President Trump is going to fix that.”
Advocates for migrants say prosecuting asylum seekers and taking their children violates international treaties that hold countries shouldn’t punish refugees who enter unlawfully to ask for protection.
At a hearing Monday in El Paso, the Office of the Federal Public Defender for the Western District of Texas will also argue that prosecuting asylum seekers and removing their children violates the U.S. Constitution.
“Parents are being denied access to their children without any due process,” said Maureen Franco, the federal public defender. “Even the worst drug addicts still have rights to their children, but here we are just removing them without even a hearing.”
The office has asked a federal court to dismiss improper entry charges against four Central American parents and one grandmother who have never been in the United States, but whose children were removed after the adults were imprisoned. The argument could spur dismissals elsewhere if a judge agrees.
The Trump administration says dismissing criminal charges because parents have been parted from their children could encourage adults to bring minors to avoid such prosecutions. “Not only is the Defendants’ request unprecedented,” government attorneys wrote in pleadings for Monday’s hearing, “it is bad policy that could endanger more children.”
Central American families and children make up the fastest-growing demographic of migrants here illegally, onequarter of all apprehensions at the southern border this year. In all, about 29,800 unaccompanied children and 67,200 members of family units from El Salvador, Guatemala and Honduras were detained between October 2016 and August 2017, according to the latest federal figures available.
Shortly after taking office, the Trump administration unveiled a series of policies to discourage families from making the dangerous journey north. It threatened to prosecute parents if they paid smugglers to bring children and, if necessary, to separate parents and children at the border. The number of families coming here plummeted. Facing intense criticism from advocates, thenHomeland Security Secretary John Kelly backed away, saying separations would occur only in extenuating circumstances such as an illness.
This summer, however, as family arrivals rose once more and Kelly left to become Trump’s chief-of-staff, federal officials in certain areas along the border began the prosecutions for illegal entry, detaining parents while requiring their children go to federal shelters. The practice appears particularly pronounced in west Texas, where Border Patrol agents at an October meeting in El Paso acknowledged they were separating families.
“They were unabashed that they were doing it,” said Franco, the federal public defender.
The following day, an attorney with Customs and Border Protection’s Office of Assistant Chief Counsel e-mailed a “clarification” to attendees.
“The Border Patrol does not have a blanket policy requiring the separation of family units,” wrote the lawyer, Lisa Donaldson. “Any increase in separated family units is due primarily to the increase in prosecutions of immigration-related crimes.”
The broad prosecution of parents is at odds with what CBP has said publicly about its policy. In an interview this summer, assistant Border Patrol chief Carlos Villarreal said agents do not refer family units for criminal charges unless an adult has a prior conviction.
“We don’t prosecute family units,” he said.
But that has clearly begun to change.
In November, a spokesman for Customs and Border Protection in El Paso, Roger Maier, wrote in an email that the policy was a matter for officials in Washington. Carlos Diaz, an agency spokesman in Washington over the southwestern border, pointed to 2015 procedures that instruct agents to maintain family unity “to the greatest extent operationally feasible …”
He referred further inquiries to the Office of Refugee Resettlement in charge of children, which deferred questions back to CBP.
Lora Makowski, a spokeswoman for the U.S. Attorney’s Office for the Western District of Texas, said in a statement that the office is following the Sessions’ memorandum. “It neither targets nor exempts defendants based on their parental status,” Makowski said. “Any increase in prosecutions stems from an increase of cases brought by Border Patrol to the U.S. Attorney’s Office.”
Monday’s hearing in El Paso on the separation of families crossing the border is before U.S. Magistrate Judge Miguel Torres, who has asked prosecutors and defense attorneys for more information after expressing alarm at recent cases in his courtroom.
He referred in a recent order to the defendants’ “limited and often non-existent lack of information about the well-being and whereabouts of their minor children from whom they were separated at the time of their arrest. Because of the Court’s concerns regarding the possible impact of these issues on the defendant’s rights … further briefing is necessary.”
The federal public defender’s office contends such separations violate migrants’ rights to due process by forcing them to plead guilty in order to quickly join their children, essentially making their pleas involuntary.
Among the five defendants whose cases will be reviewed is 69-year-old Natividad Zavala from Honduras, who was with her 7-year-old grandaughter when federal agents found them near El Paso in October. Agents imprisoned Zavala and took away the girl, giving the grandmother a piece of paper she did not understand, according to court documents.
Another is Blanca Vasquez, who was with her son. The Salvadoran woman said Border Patrol agents told her he would be placed in a juvenile facility, but she told Torres at an earlier hearing that she was worried.
“I would be very worried as well if it was me,” Torres responded from the bench.
The judge later told government and defense attorneys that he was troubled by migrants who face the misdemeanor improper entry charge, but are unable to obtain information about their children before having to plead guilty.
Most migrants plead guilty a few days after being arrested and following interviews with attorneys that can last just five minutes. There are few defenses to the crime, and thousands of such prosecutions a year, so the pleas unfold in speedy mass hearings lasting roughly an hour.
“Going to trial is simply a legal fiction for these parents,” the public defender’s office said in its motion. “The only choice is for them to enter a guilty plea and reunite with their minor children as soon as possible.”
The government responded that migrants could, like any other defendants in criminal proceedings, pay the $5,000 bond and be released until trial. It said receiving information about their children isn’t contingent upon the guilty plea, but a matter between parents and the Office of Refugee Resettlement overseeing minors. Dismissing charges could endanger children.
“The relief the Defendants request would have the disastrous effect of encouraging aliens to traffic or use children when making illegal entries into the United States,” the prosecutors wrote.
Federal defense attorneys across the southern border say they are fielding unprecedented requests from migrant clients to find their children.
“When you hear that,” said Chris Carlin, an assistant federal public defender in Alpine, “you really sit up and take notice.”
The requests come from parents who have what advocates and attorneys consider legitimate asylum claims. In one of Carlin’s cases, a Venezuelan husband and wife with a completed asylum application were imprisoned for improper entry.Their 15-year-old daughter was put into a federal shelter, and later released to an aunt. The couple was eventually freed to pursue asylum regarding the man’s persecution for attending an antigovernment protest.
In El Paso, Rebecca Reyes described seven recent clients without prior violations who told Border Patrol agents that they sought asylum. The parents were imprisoned and their children removed. Among them was 38-year-old Karla Portillo, who said she’d been threatened with death by Salvadoran gangs. The attorney was unable to find Portillo’s 14-year-old daughter before the mother had to plead guilty.
“These people are already in crisis, already with so much trauma, the one thing they want to do is be with their kid,” Reyes said. “And they’re not just separated. They don’t even know where they’re at.”
Nora Nunez, an assistant federal public defender in Yuma, Ariz., said her office has seen a rise in the prosecutions of parents coming here with their children for the first time.
“They are scared to death because they have no idea where their child is,” Nunez said. “They ask me, and I’m like, ‘I don’t know.’”
Serena Premjee, an assistant federal public defender in San Diego, said she spent two weeks recently trying to locate her client’s 5-year-old.
“This is a huge problem,” she wrote in an email.
Advocates who work with migrant children similarly report an influx of minors who were separated from their parents after they were imprisoned for crossing.
“We have seen a dramatic spike in the number of cases, nearly a hundred of those cases in the past couple of months, sometimes involving children as young as 2,” said Laura St. John, legal director of the Florence Project, an Arizona nonprofit serving unaccompanied children.
Once parents and children are separated, it can be extraordinarily difficult to reunite them.
The process involves three federal departments, including Health and Human Services overseeing the Office of Refugee Resettlement in charge of unaccompanied children. The Department of Justice houses migrants charged with federal crimes. The Department of Homeland Security detains immigrants awaiting civil proceedings.
The agencies lack comprehensive procedures to track families, according to a report this year by advocacy groups including the Women’s Refugee Commission.
“There aren’t mechanisms in place to systematically allow a parent or child to locate one another once they have been separated,” said Katharina Obser, a program officer at the commission who co-authored the study. “Family members lose track of each other.”
Parents like Patricia Mejia, the Salvadoran mother, who are apprehended within 100 miles of the border are subject to a procedure known as expedited removal after they have pleaded guilty to illegal entry. Once they have served a typically short sentence of a week or two in federal prison, they are transferred to immigrant detention where they can make their case for asylum.
Even when migrants’ initial asylum claims are approved by a hearing offier, they face the prospect of months in detention awaiting the final outcome of their cases before they can be reunited with their children.
Some parents have even chosen to abandon successful asylum claims and return home to dangerous situations with their children, rather than being separated from them for so long, said Jessica Jones, policy counsel for the Lutheran Immigration and Refugee Service, a nonprofit providing foster care for unaccompanied minors.
“Parents are put into impossible situations,” she said.
If their asylum claims are rejected, the migrants can be quickly returned home without seeing an immigration judge, often before they have even located their children.
“What’s terrifying is it doesn’t seem as if the parent is asked, ‘If you go right back, do you want your child to go with you?’’’ said Jennifer Nagda, policy director for the Young Center for Immigrant Children’s Rights, which provides guardians ad litem. “They are being separated and the parent is deported.”
Sometimes parents are able to locate their children before they are removed from the country and can coordinate their return home together.
But in some cases, advocates for migrant children in federal foster care say they have been unable to find parents prior to their deportation. By then, the advocates say, the children have their own immigration cases and cannot simply be returned without court procedures, particularly if caseworkers argue it is against their best interest.
“What we are looking at is a separation of days and weeks and months, and some cases even years, because of the length of time a child’s case can take,” Nagda said. “Parents turn over every stone to find their children.”
The government contends parents chose to bring their children, even though they have been warned they could risk more serious charges.
“Although the Defendants are only currently charged with the misdemeanor offense of illegal entry, their admitted conduct satisfies the elements of the felony offense of alien smuggling,” prosecutors wrote in pleadings before Monday’s hearing.
Sergio Garcia, the assistant public defender over the case in El Paso, responded that the migrants before Judge Torres on Monday are potential refugees with the right to keep their children with them until their asylum claims have been heard.
“Instead of giving them due process rights to a hearing on asylum, or refugee status, the government is just kidnapping their children,” he said.