Fran­tic par­ents fill courts on the bor­der

With zero-tolerance pol­icy for il­le­gal en­try, fam­ily sep­a­ra­tions surge

The Washington Post Sunday - - FRONT PAGE - BY MICHAEL E. MILLER

mcallen, tex. — The words “all rise” were still ring­ing in the brightly lit South Texas court­room last week when Peter E. Ormsby slipped un­cer­e­mo­ni­ously into his seat.

“Good morn­ing,” the 62-yearold fed­eral mag­is­trate said as the court­room filled with the clank­ing of shack­led de­fen­dants re­turn­ing to their wooden benches. “We’re here to take up a num­ber of crim­i­nal cases that al­lege that the de­fen­dants vi­o­lated the im­mi­gra­tion laws of the United States.”

Seated in front of Ormsby were 71 di­sheveled im­mi­grants caught il­le­gally cross­ing the Rio Grande. The num­ber of de­fen­dants has soared amid Pres­i­dent Trump’s crack­down on a new surge of bor­der crossers. But the mass hear­ing was re­mark­able less for its size than for who it in­cluded: par­ents.

For the first time, fed­eral court­rooms here and across the South­west are be­ing flooded with distraught mothers and fa­thers who have been charged with mis­de­meanor il­le­gal en­try and sep­a­rated from their chil­dren — a shift in pol­icy touted by the ad­min­is­tra­tion as a way to stop fam­i­lies from try­ing to reach the United States but de­cried by crit­ics as trau­ma­tiz­ing and in­hu­mane. Last month a Hon­duran fa­ther sep­a­rated from his wife and 3-year-old son killed him­self in a Texas jail cell, The Wash­ing­ton Post re­ported on­line Satur­day.

In McAllen alone, 415 chil­dren had been stripped from their par­ents be­tween May 21 and June 5, ac­cord­ing to fed­eral pub­lic de­fend­ers.

Now, on the morn­ing of June 6, 14 more par­ents from Cen­tral Amer­ica were fac­ing an ag­o­niz­ing choice with un­cer­tain con­se­quences. They could plead guilty in the hope of speed­ing up their

re­uni­fi­ca­tion with their chil­dren, but risk dam­ag­ing their chances of re­ceiv­ing asy­lum in the United States. Or they could plead in­no­cent and head to trial, a process that could take days or weeks and pro­long their sepa­ra­tion from their chil­dren.

Seven miles from Mex­ico and sur­rounded by brush­lands that are home to the bor­der’s busi­est smug­gling routes, the Bentsen Tower fed­eral court­house has be­come one of the an­guished epi­cen­ters of fam­ily sepa­ra­tion.

On Wed­nes­day morn­ing, the ev­i­dence of that was the tears on the par­ents’ faces. Many clutched fliers with a phone num­ber they could call to try to get their chil­dren back from the in­creas­ingly crowded fed­eral shel­ters where they are be­ing housed.

As Al­li­son Moody, a spe­cial as­sis­tant U.S. at­tor­ney, read the charges against the im­mi­grants, they stood, one by one, in front of mag­is­trate to plead.

“Cul­pa­ble,” they said, again and again, us­ing the Span­ish word for guilty. By 10:30, the count was 56 cul­pa­bles and run­ning.

But when it came time for num­ber 57, Diego Ni­co­las-Gas­par hes­i­tated.

The Gu­atemalan flee­ing vi­o­lence and poverty had rafted across the Rio Grande a day ear­lier with his son, only to have the 11-year-old taken from him by Bor­der Pa­trol agents. Now he feared that if he pleaded guilty, he’d be de­ported with­out the boy.

“No cul­pa­ble,” he said un­cer­tainly.

As Ormsby be­gan to set a trial date for the fol­low­ing week, the im­mi­grant’s at­tor­ney in­ter­jected.

“Your honor, he’s been sep­a­rated from his son,” said as­sis­tant fed­eral pub­lic de­fender Aza­lea Ale­man-Bendiks. “We would pre­fer to have him not con­tin­ued in cus­tody be­cause he is trav­el­ing with his 11-year-old son. He’s been sep­a­rated from him, and if he doesn’t get back to­day, the chances of him be­ing re­united with him go down.”

As she con­sulted with Ni­co­lasGas­par, dressed in the same dirt­caked ten­nis shoes and mud­stained shirt in which he’d been de­tained, the im­mi­grant in his late 20s be­gan to sob. She told him the best chance he had of see­ing his son soon was to plead guilty.

“Cul­pa­ble,” he told the judge when court re­sumed min­utes later. “Cul­pa­ble. Cul­pa­ble.”

When it was time for sen­tenc­ing, Ale­man-Bendiks made a point of telling the sto­ries of the 14 de­fen­dants who had been sep­a­rated from their chil­dren.

“This is a tragedy that’s hap­pen­ing right in front of this court,” she told Ormsby.

Ormsby, who has sen­tenced thou­sands of mi­grants for il­le­gally cross­ing the bor­der dur­ing his two decades as a mag­is­trate, po­litely thanked her for the “im­pas­the sioned” state­ment. Then he turned to the par­ents.

“I trust and hope that you will be re­united with your fam­ily mem­bers,” he told them. “But I also hope you un­der­stand that the rea­son there was a sepa­ra­tion is that you vi­o­lated the laws here of the United States.”

By day’s end, he would sen­tence more than 100 peo­ple, in­clud­ing 28 par­ents. Most would re­ceive the light­est pun­ish­ment pos­si­ble — time served — be­fore they were handed over to Im­mi­gra­tion and Cus­toms En­force­ment.

The fren­zied pace of the pro­ceed­ings was no ac­ci­dent. As Moody emerged from court in the af­ter­noon, she and a col­league ex­changed a high-five.

“I said I’d get done by 3:20,” the prose­cu­tor said, check­ing the time to see she was only nine min­utes be­hind sched­ule.

‘Prose­cut­ing ev­ery­body’

Ale­man-Bendiks had ar­rived at the tall, dark glass court­house shortly after dawn that morn­ing. After pre­par­ing for an hour in an of­fice dec­o­rated with her diplo­mas from Rice Univer­sity and Har­vard Law, the 52-year-old fed­eral pub­lic de­fender headed up­stairs to the court­room, where the air smelled like sweat and the 71 im­mi­grants were al­ready seated. She was rep­re­sent­ing all of them.

“How many of you were trav­el­ing with chil­dren?” she asked in Span­ish. More than a dozen hands shot up.

“How did they sep­a­rate you?” she said to a Gu­atemalan woman whose 8-year-old daugh­ter was taken away.

“How long since you saw her?” she asked a Hon­duran sep­a­rated from her 6-year-old girl.

“They just took them?” she said to a Sal­vado­ran whose two daugh­ters were gone.

This is what Trump’s ze­ro­tol­er­ance pol­icy looked like to Ale­man-Bendiks and scores of other fed­eral pub­lic de­fend­ers along the bor­der.

Ad­min­is­tra­tion of­fi­cials had been dis­cussing the idea of sep­a­rat­ing par­ents and chil­dren for more than a year when At­tor­ney Gen­eral Jeff Ses­sions made it of­fi­cial.

“If you’re smug­gling a child, then we’re go­ing to pros­e­cute you, and that child will be sep­a­rated from you,” he warned on May 7. “If you don’t want your child to be sep­a­rated, then don’t bring him across the bor­der il­le­gally.”

Moody de­clined to dis­cuss her work prose­cut­ing par­ents for il­le­gal en­try in McAllen. A spokes­woman for the Jus­tice De­part­ment’s South­ern Dis­trict of Texas said her of­fice could not say how many par­ents had been sep­a­rated from their chil­dren be­cause of the zero-tolerance pol­icy.

“DOJ does not keep sta­tis­tics on whether or not some­one is a par­ent,” said An­gela Dodge, adding that pros­e­cu­tors had “no way of know­ing” when some­one was a par­ent and that “it’s not rel­e­vant when prose­cut­ing a case.”

Fam­ily sep­a­ra­tions were rare un­der the Bush and Obama ad­min­is­tra­tions.

“We didn’t even used to ask about it,” said Ale­man-Bendiks, who has worked as a fed­eral de­fender for 15 years. Now, de­pend­ing on the day, they make up as many as half of her il­le­gal en­try cases.

Some par­ents tell Ale­manBendiks that their chil­dren were taken im­me­di­ately at the bor­der. Oth­ers say the sepa­ra­tion oc­curred at the chilly pro­cess­ing fa­cil­i­ties im­mi­grants call

“hiel­eras,” or ice boxes.

“All these par­ents want to know is when are they get­ting their kids back?” Ale­manBendiks said.

The num­ber of fam­i­lies try­ing to reach the United States soared by 435 per­cent in May, com­pared with a year ago, ac­cord­ing to the De­part­ment of Home­land Se­cu­rity. They’re part of a surge of bor­der crossers that Trump is de­ter­mined to stop. More than 50,000 un­doc­u­mented im­mi­grants were ar­rested in May for the third month in a row.

Though they didn’t tar­get fam­i­lies, Trump’s pre­de­ces­sors also ramped up il­le­gal en­try pros­e­cu­tions in re­sponse to surges.

But by late May, the num­ber of il­le­gal en­try cases in South Texas had soared to about 1,000 per week, ac­cord­ing to Mar­jorie A. Mey­ers, the fed­eral pub­lic de­fender for the dis­trict. That is on par with the peak of the last surge in 2014, even though half as many im­mi­grants are be­ing de­tained in the Rio Grande Val­ley, records show.

Bor­der Pa­trol told Mey­ers the num­ber of peo­ple charged could rise an­other 50 per­cent.

“They are prose­cut­ing ev­ery­body they can,” she said.

The explosion of cases has al­ready started to tax the fed­eral courts. In Brownsville, like McAllen, mag­is­trates are sen­tenc­ing packed rooms of de­fen­dants in the morn­ing and again in the af­ter­noon.

“Peo­ple in­volved with the court sys­tem are con­cerned about what this is do­ing to the court dock­ets, what it is do­ing to the U.S. mar­shals’ abil­ity to pro­vide space for the height­ened lev­els of de­ten­tions,” said Rep. File­mon Vela, the Demo­crat who rep­re­sents a slice of the Rio Grande Val­ley that stretches from McAllen east to Brownsville, where the fed­eral court­house is named after his fa­ther.

Mey­ers said she was try­ing to find more as­sis­tant fed­eral pub­lic de­fend­ers who could speak Span­ish. And Ses­sions re­cently said he is send­ing 35 pros­e­cu­tors to the bor­der to as­sist with the pros­e­cu­tions, in­clud­ing 15 to Texas.

For Mey­ers, the chal­lenge is not only lo­gis­tics but also the wrench­ing sto­ries of fam­i­lies be­ing torn apart. In a con­fer­ence call with her as­sis­tant fed­eral pub­lic de­fend­ers last month, she said she told them to force judges to con­front the is­sue.

“We think it’s im­por­tant for the court and ev­ery­body to hear what’s hap­pen­ing,” she said.

On May 22, Ale­man-Bendiks asked Ormsby in court to pres­sure the govern­ment to pro­vide more in­for­ma­tion about the fate of fam­i­lies be­ing sep­a­rated. On May 31, she and her boss, Kyle B. Welch, met with 10 of­fi­cials from ICE, Bor­der Pa­trol, the Jus­tice De­part­ment and the Of­fice of Refugee Re­set­tle­ment, which cares for the chil­dren sep­a­rated from their par­ents as well as “un­ac­com­pa­nied minors” who ar­rived in the United States on their own.

“The idea was to try and give us a sense of what’s hap­pen­ing here,” Ale­man-Bendiks said, but the meet­ing de­liv­ered lit­tle clear in­for­ma­tion.

One Bor­der Pa­trol of­fi­cial did say agents in and around McAllen had a pol­icy of not sep­a­rat­ing chil­dren un­der 5 from their par­ents — al­though that pol­icy does not ap­pear to be in place else­where along the bor­der. Chil­dren as young as 18 months have been taken from their par­ents.

On Wed­nes­day, Ale­manBendiks asked Ormsby to or­der the govern­ment to hand over lists of chil­dren sep­a­rated from their par­ents so that im­mi­gra­tion at­tor­neys could en­sure they were re­united.

“My con­cern is that there are lost chil­dren here in the sys­tem,” she said. “We are hear­ing it ev­ery day, your honor, and it’s not right.”

Ormsby noted that “chil­dren are not within the ju­ris­dic­tion of this court. These peo­ple are here be­cause they have a crim­i­nal case here.”

He in­vited her to pre­pare a brief on how he could or­der the govern­ment to pro­vide lists. “But on its face,” he added, “it seems ques­tion­able to me that the court would have the au­thor­ity to do that.”

‘They never came back’

Juana Fran­cisca Bonilla de Can­jura wiped tears from her face in the court­room as she lis­tened to the pro­ceed­ings through a trans­la­tion head­set. In her hands, she clutched the pass­ports of her two daugh­ters: In­grid, 10, and Fa­tima, 12. They had come to­gether from El Sal­vador, then were sep­a­rated at a hiel­era. The bright blue doc­u­ments were her only way of get­ting them back.

“I don’t have any idea where they are,” she’d told a Post re­porter shortly be­fore the hear­ing be­gan. “No­body knows any­thing. No­body says any­thing — just lies. They said they were tak­ing them for ques­tion­ing, and we were only go­ing to be apart for a mo­ment. But they never came back.”

“What pains me is the thought they are suf­fer­ing with­out me,” she said. As she spoke, a Bor­der Pa­trol agent in green fa­tigues cut off the con­ver­sa­tion.

“You can’t ask them about their fam­i­lies,” the agent told the re­porter. “They are in my cus­tody.”

The pro­ceed­ings were at once mo­not­o­nous and mo­men­tous. Many im­mi­grants fid­geted un­til it was their turn to en­ter a plea. Oth­ers stared at their shoes — the laces had been re­moved to keep them from stran­gling them­selves.

In the af­ter­noon, a Hon­duran woman in­ter­rupted her ar­raign­ment to say she had a ques­tion.

Norma Leti­cia Ul­loa-Mon­toya had rafted across the Rio Grande a day ear­lier with her two sons, ages 6 and 9, who were then taken by Bor­der Pa­trol agents.

“If one de­clares her­self guilty,” she asked, “does she still have a right to stay in this coun­try with her ba­bies?”

Ormsby said that de­ci­sion wasn’t up to him.

“You have been charged with a crim­i­nal charge, a mis­de­meanor, al­leg­ing you en­tered the United States il­le­gally. What we are do­ing is ad­dress­ing that crim­i­nal charge against you,” he said. “Once this is re­solved, you can go back to the im­mi­gra­tion au­thor­i­ties and re­quest asy­lum.”

Welch, the fed­eral pub­lic de­fender, agreed. “My un­der­stand­ing is that a plea would not ad­versely af­fect any claim she might have,” he said. That view was echoed by Dodge, the Jus­tice De­part­ment spokes­woman.

But im­mi­gra­tion ad­vo­cates aren’t so sure. “They are now con­victed of a crime,” said Leah Chavla of the Women’s Refugee Com­mis­sion. “Un­der U.S. law, that could be a bar to them re­ceiv­ing asy­lum, so they’d have to get a waiver.”

In the end, those com­pli­ca­tions mat­tered less to the par­ents in Ormsby’s court­room than see­ing their chil­dren again. All of them pleaded guilty to il­le­gally cross­ing the bor­der and were sen­tenced to time served.

“Ob­vi­ously, in each of your sit­u­a­tions, you com­mit­ted a crime and so the govern­ment was within their rights to pur­sue that,” the mag­is­trate said. “Whether or not they should ex­er­cise their dis­cre­tion that way is some­thing that is ob­vi­ously be­ing de­bated.”

“As some­one who has chil­dren my­self,” he added, “it would be a ter­ri­ble sit­u­a­tion to be sep­a­rated un­der those con­di­tions.”

Then the guards put hand­cuffs back on the par­ents and led them out of the court­room, where their fu­ture re­mained as un­clear as the lo­ca­tion of their chil­dren.


A 4-year-old cries with a fam­ily mem­ber near McAllen, Tex., as he and oth­ers are ap­pre­hended by Bor­der Pa­trol agents May 2 after il­le­gally cross­ing the bor­der. Fed­eral de­fend­ers say 415 chil­dren were stripped from their par­ents be­tween May 21 and June...

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