Migrants detained at the southern border may no longer face criminal prosecution, but the shift to civil proceedings will cost them access to the lawyers who are helping to locate their children.
On Thursday morning, Maureen Scott Franco, the El Paso public defender, received a phone call from John Bash, the lead federal prosecutor in the Western District of Texas. Under the federal government’s “zero tolerance” policy, Bash’s office had been bringing criminal cases against immigrants for crossing the border illegally. As a result of such prosecutions, some three thousand children have been separated from their parents along the border since last year. Now, Bash said, the cases would be dismissed. The immigrants, who had been in the criminal custody of the U.S. Marshals Service, would be sent to Immigration and Customs Enforcement (ice), where they would remain, without their kids, as the government prepared to deport them.
Franco and Bash spoke at a moment of intensifying national outcry and confusion over the White House’s conflicting messages on how to maintain zero tolerance while ending family separation. Earlier in the week, President Trump signed an executive order that purported to end the separations by mandating that families arrested at the border be detained together. Questions immediately arose about where the government would put the parents and children it arrested, and whether holding children in immigration detention indefinitely violated federal law. According to Franco, Bash was dismissing the cases because there wasn’t space in the district to hold the families under the terms set out in Trump’s executive order. By Thursday evening, however, the federal prosecutor’s office had reversed itself. “Zero tolerance is still in effect,” a spokesman said, on Bash’s behalf. The result was even more confusion. Some cases were dismissed, but others weren’t. For the parents who’ve been separated from their children—in some instances, for months—very little has changed except for a new sense of worsening chaos.
On Friday morning, Irma Whiteley, a staff investigator at the El Paso Public Defender’s Office, went to the Otero County Prison, a private facility in New Mexico, thirty miles north of El Paso, to explain the situation to some of her clients. Earlier this week, she and I had visited two of them—Wesliane Souza, from Brazil, and Esmeralda Pérez, from Honduras. Both had been arrested with their children outside of El Paso—Souza was travelling with her thirteen-year-old son, Pérez with her nine-year-old son—and were separated from them; neither has seen her son since. “There seemed to be a good chance that all these cases could get dismissed, but now we don’t know,” Whiteley told me. “And so I want them to be prepared.” We entered a small room, with a glass partition and a two-way telephone.
Having their criminal cases dismissed would bring Souza and Pérez one step closer to being reunited with their children, but it would also present significant new challenges. Criminal defendants are guaranteed a lawyer, but those in immigration proceedings are not. Souza and Pérez will continue to be represented by the El Paso Public Defender’s Office only for as long as they remain in the custody of the U.S. Marshals Service. Once their criminal cases end, and they’re transferred to icecustody, they’ll be on their own, unless they can somehow find immigration lawyers. That won’t just affect their immigration claims; it will also make it harder for them to find their children. The government separated parents and children without any planfor how to reconnect them, and the arduous work of navigating the federal bureaucracy has fallen to individual lawyers and advocates.
Souza entered the room. Her skin was pale, and there were dark rings under her eyes. “So, listen, it looks like some of these criminal cases might get dismissed,” Whiteley told her. (Souza’s criminal case is still pending.) “For now, I have a few pieces of paper for you. Keep these close.” Souza nodded as Whiteley pulled two sheets from Souza’s case file. One was a flyer with the heading “Next Steps for Families,” issued by the Department of Homeland Security, which had a list of phone numbers that parents could call to inquire about their missing children. (A few mothers in detention told me the numbers didn’t always work.) The other, prepared the day before by the office of the El Paso public defender, gave the mothers a script for what they should say to ice officers once they arrived in immigration detention: “I was separated from my child. I want to know where my child is, and I want to speak to my child. I want to be reunified with my child.” The lines were written in Spanish and in English, Whiteley pointed out, “in case an ice officer only understands English.”
Souza, who still hasn’t spoken to her son, thanked Whiteley, but she tensed up while reading through the long list of phone numbers and the blocks of text. It was a tangle of information. She closed her eyes, and said a prayer under her breath.
Next, Pérez came into the room. She seemed better able to focus. After nearly a month without any communication with her son, they finally spoke on the phone earlier that morning. “He’s in Michigan,” she told me. “They’re treating him O.K. They’re giving him food. He has clothes.” But she had one concern. “He said that they hit him three days after we were separated,” she said. “I asked him why they hit him, and he told me it was because he wasn’t eating the food they put in front of him. He wasn’t eating because he was upset. I don’t know all the details. He’s nine years old. He can’t elaborate.”
Pérez’s criminal case has just been dismissed, and she has an asylum case that appears strong, but she will likely remain in icedetention while she waits for a hearing before an immigration judge. In the meantime, it’s unclear what will happen to her son.
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The zero-tolerance policy has created a new emergency in the federal courts, which have to process thousands of cases that would not have previously been prosecuted. It also has exacerbated an existing crisis in the nation’s immigration courts. At present, there’s a backlog of some seven hundred thousand cases, and many hearings can’t be scheduled before 2021. How to detain all the people the government is now arresting is another problem. Based on the current numbers, zero-tolerance arrests will lead, within months, to the detention of thousands of people, with no clear end in sight. The government is erecting tent cities to house children who have been separated from their parents. There are plans to put roughly twenty thousand of them on military bases across the country. If Trump’s executive order withstands legal challenges, and families are detained together when they cross the border, the government will need to find more space where it can hold parents and children for extended periods while their criminal and immigration cases play out.
Before leaving Otero on Friday, Whiteley visited a Salvadoran client she hadn’t met before. The woman, named Guillermina Concepción, had been separated from her three children—ages eight, ten, and eleven—on June 8th, just outside of El Paso. She had no idea where they were. Whiteley tried to explain that it was possible that the federal prosecutors would drop the charges against her, and that she’d need to find an immigration lawyer to represent her in the next stage of her detention. But Concepción was too upset to listen. Her hands were shaking.
She and I spoke while Whiteley looked for a prison guard who could open the door, so that Whiteley could pass Concepción some documents. “I’ve never been away from my kids before,” Concepción told me. “Now they’re with people they don’t know, in a place they don’t know. The mothers here—there are a lot of us.” (Souza estimates there are at least fifty in Otero.) “And none of us have our kids. We’re all crying and crying. Time passes. It’s like we’re not alive without them.” She was sobbing. “The gangs will get us if we get deported.” she went on. “I’ll be killed before I can see my kids again. At home, it’s like you’re dead even while you’re still alive.”
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