A Case in El Paso Shows Flores is the Solution, Not the Problem

This article originally appeared on Just Security.

Facing a growing outcry over his administration’s separation of over 2,300 children from their parents between May 5 to June 9, President Donald Trump signed an executive order Wednesday that he said would “keep families together.” The order seeks to accomplish that not by ending “zero tolerance” prosecutions of parents for crossing the U.S.-Mexico border (though reportedly there has been at least a temporary pause), but by jailing families together during criminal and immigration proceedings “to the extent permitted by law.”

What that means in practice is unclear. Prolonged detention of immigrant children, with or without their parents, is not legal. It violates a legally binding 1997 class-action consent decree known as the Flores settlement, that governs the treatment of minors in immigration custody. During the Obama administration, courts interpreted Flores to limit the time period that the government could detain children to 20 days in most cases.

The Trump administration has denounced Flores as a “loophole,” and demanded that Congress override it so that it can start detaining families for longer periods of time. The executive order instructed Attorney General Jeff Sessions to file a request to modify the Flores settlement so that the Department of Homeland Security (DHS) can detain families together during their criminal and immigration proceedings. It is not clear what will happen if the court denies that request, but the order repeats Trump’s false claim that the Flores settlement forces him to separate families:

It is unfortunate that Congress’s failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law.

All of this ignores a growing body of evidence that the family separation policy and failure to reunite families is itself a violation of Flores, as one federal magistrate judge in El Paso found in an overlooked decision this January. Flores specifically requires that minors in U.S. immigration custody be provided with “contact with family members who were arrested with the minor.” Instead, the government has bureaucratically severed the link between parents and children, and seems to have no system for reconnecting them.

“A Total Lack of Information”

Before applying the “zero tolerance” family separation policy along the U.S.-Mexico border, the Justice Department and DHS tested it in the Border Patrol’s El Paso sector, which includes western Texas and all of New Mexico.

A DHS memo from April, reported by the Washington Post, claimed that authorities had drastically cut the number of families trying to cross the border illegally in the El Paso sector by criminally prosecuting every adult apprehended by Border Patrol agents there between July and November 2017, even if it meant separating them from their children. It recommended that DHS Secretary Kirstjen Nielsen implement the “100 percent” prosecution policy along the entire U.S. border with Mexico.

The El Paso pilot program was not publicly announced, but by early November of last year, Miguel Torres, a federal magistrate judge in the Western District of Texas, had noticed the trend. He stated during a court hearing on Nov. 1, 2017 that “with some frequency in the last few months,” defendants being prosecuted for immigration offenses had described being separated from a minor child at the time of their arrest.

Torres said he was particularly concerned by “what appears to be the total lack of information that these Defendants appear to be getting” about their children after being separated from them. He consolidated five cases where parents had been separated from their children, jailed, and criminally charged, and asked prosecutors and public defenders to file briefs on whether the government’s actions were legal.

Prolonged detention of immigrant children, with or without their parents, is not legal. It violates a legally binding 1997 class-action consent decree known as the Flores settlement.

Between October 21 and 23, 2017, all five defendants had crossed from Mexico into the U.S. with their son, daughter, or in the case of one defendant, a grandson whom she had raised for years. They and their children were apprehended by U.S. Border Patrol. The defendants were charged with “improper entry by an alien,” which is a federal misdemeanor. Their children, who ranged from ages seven to 16, were put into the custody of the Department of Health and Human Services’ Office of Refugee Resettlement (ORR), the federal agency responsible for the care of unaccompanied immigrant children.

Federal public defenders Maureen Scott Franco and Sergio Garcia moved to dismiss the charges against their clients on a variety of legal grounds. At a Nov. 27, 2017 hearing, Judge Torres denied the defendants’ motion, for reasons he explained in a written decision. Torres concluded that the government’s practice of separating parents from children, far from being compelled by the Flores settlement, was a violation of it—but that he lacked the authority to enforce it in the context of the defendants’ misdemeanor criminal proceedings.

Specifically, Torres found that the government was violating Flores’ requirement to provide children in immigration custody with “contact with family members who were arrested with the minor,” regardless of the family members’ legal status. He found that this provision “operates under force of court order,” and that the government “has offered no evidence, nor made any reference to, any effort…to comply with the provisions regarding contact with family members.”

Torres also identified another major legal problem with the government’s zero tolerance prosecutions. Before accepting a guilty plea, judges are required to “determine that the plea is voluntary and did not result from force, threats, or promises,” and the Supreme Court has ruled that defendants must be informed of a guilty plea’s immigration consequences. Torres found that placing a defendant “incommunicado with his minor child” raised serious questions about whether a guilty plea could meet these standards.

But, because they were contesting the legality of their prosecution, the five defendants in this case did not plead guilty, so there was no plea for Torres to evaluate. Instead, they were convicted after a series of extremely abbreviated trials on December 18, 2017. In each trial, there were no witnesses; the only evidence was Border Patrol documents that both sides agreed to enter into the record.

Before sentencing, one by one, each defendant begged to be reunited with his or her child.

“When I arrived here, I had my daughter with me, and up to this day today, I know nothing of her,” Elba Luz Dominguez-Portillo said. “I came here fleeing from the Maras [violent gangs in Central America], and I ask I want to go back with my daughter as soon as possible. That’s all.”

“The only thing that I want now is to go back to my country with my son as soon as possible,” Maynor Alonso Claudino Lopez told the court.

“I do want to know about the whereabouts of my son,” Jose Francis Yanes-Mancia said. “I want to know if he is okay, and I want to take him back to my country of Honduras.”

“I came here with my grandson. He was taken from me,” Natividad Zavala-Zavala said. “I don’t know where he is…. I need to know where he is. He was taken from me. I know nothing of him. I need to know where my grandson is.”

And, Blanca Vasquez said she had fled to the U.S. with her son after her husband was murdered by gangs.

“I don’t know where my son is,” she said. “From the moment he was taken from me, I don’t know anything about him…. when I have myself in to immigration, they took my son away from me. They cuffed him. He is a 13-year-old little boy. He was cuffed and taken away.”

All five defendants were convicted and sentenced to one year of probation. Four of them were deported, almost certainly without their children, in January and February.

Sergio Garcia, the public defender who represented the defendants, told me that after their convictions all of his clients other than Ms. Vasquez were removed from the United States before he could make contact with them, and “nothing in the paper indicates they left with their children.” Garcia said an investigator from his office was trying to find out more information and re-establish contact with his clients and their families.

The fifth defendant, Vasquez, was almost deported as well. An asylum officer initially found that she did not have a credible fear of persecution if sent back to El Salvador. But after the Houston Chronicle published a story with extensive details about the murder of Vasquez’s husband, violent attacks on her older son, and threats against her and her younger son, that decision was reversed. A lawyer named Bridget Cambria contacted Vasquez and offered to represent her at no cost in her immigration case. Vasquez was released on bond by an immigration judge on February 21—an outcome that Cambria said was “almost never heard of” in El Paso. Vasquez was reunited with Luis, the son who had been taken away at the border, and his 22-year-old brother William, who had entered the U.S. and sought asylum in 2016.

On June 11, U.S. District Judge Kathleen Cardone affirmed the defendants’ criminal convictions. Cardone agreed with the magistrate judge that in the context of the defendants’appeal of their misdemeanor conviction, the court lacked jurisdiction to rule on whether the government’s separation of them from their children violated Flores, or whether separating parents from their children could render a guilty plea involuntary, and she declined to address the magistrate judge’s substantive analysis of those issues. The defendants have since filed an appeal with the U.S. Court of Appeals for the Fifth Circuit.

180 Convictions in One Day

What was most unusual about Vasquez’s and her co-defendants’ trial was that it occurred at all. The overwhelming majority of parents separated from their children under the “zero tolerance” prosecution policy have pleaded guilty. A guilty plea for a first offense of crossing the border without authorization usually results in a sentence of time served. Going to trial means spending many more weeks in criminal custody, with limited chance of success.

Even the plea hearings in improper entry cases are cut much shorter than proceedings in an ordinary federal criminal case. Beginning in 2005, in Del Rio, Texas, the federal government began criminally prosecuting large numbers of people for entering the U.S. unlawfully in an attempt to deter repeat border crossings. The program, known as “Operation Streamline,” soon expanded to most federal district courts in Texas, Arizona, and New Mexico along the U.S.-Mexico border.

As summarized in a 2010 law review article, “many Streamline defendants receive just one court appearance, which serves as an arraignment, plea, and sentencing. These hearings are conducted en masse, with up to eighty defendants arraigned each day.” Defense lawyers have minimal time to meet with their clients beforehand. The entire court hearing can take less than one minute per defendant—a system derided as “a ‘conveyor belt’ system of justice,” “McJustice,” and “factory justice,” even before its recent expansion.

The expansion of zero tolerance prosecutions to families has meant even more crowded courtrooms, even more rushed hearings, and even more strain on defense attorneys’ ability to effectively represent their clients.

Southern California, one of the few border jurisdictions that had never been part of “Operation Streamline,” will reportedly start mass trials next month. Although the policy has not been fully implemented, the increase in misdemeanor prosecutions has already led to defendants being pressured into pleading guilty before they have any meaningful opportunity to consult their lawyers, according to a letter by Reuben Camper Cahn, the executive director of the federal defenders’ office in San Diego.

In jurisdictions that were already “streamlined,” the situation is much worse. Eleni Bakst, who observed court proceedings for Human Rights First, wrote that a single public defender simultaneously represented 75 defendants at a federal courthouse in Laredo, Texas, on June 15. Four days before, in McAllen, Texas, Bakst tweeted, “90 people were prosecuted this morning for illegal entry & 80 this afternoon, a record high. We weren’t allowed in bc lack of space.”

Miguel “Andy” Nogueras, a federal defender in McAllen, emailed me on June 7 that “children are being separated every day,” some as young as two years old. Nogueras said that clients have to make their pleas without any means of contacting their children, and “we give them a hot line number to O.R.R. but we don’t know if they have access to a phone.” Most are sentenced to time served and sent back to immigration custody, where they have no right to court-appointed lawyers. Attorneys from Nogueras’s office told reporters that based on their office’s unofficial count, 415 children were separated from their parents in McAllen between May 21 and June 5.

In Las Cruces, New Mexico, the family separations began earlier, according to federal public defender Meghan McLoughlin. In August 2017, as first reported by the Houston Chronicle, McLoughlin was appointed to represent a Guatemalan man named Esteban Pastor. Pastor had been separated from his 18-month-old toddler and charged with unlawfully entering the U.S. after a prior deportation. He had been given no information about what had happened to his son.

McLoughlin obtained proof from the Guatemalan government that Pastor was the child’s father, and provided it to immigration officials. But from his arrest until his deportation, Pastor’s desperate questions about his toddler went unanswered. It was only in November that he received any information from ORR, and only in December were father and son finally reunited at an airport in Guatemala.

McLoughlin told me that separations happened “routinely” in Las Cruces. Pastor’s case was the only separation she had seen involving a toddler, but it was not uncommon for children as young as five, six or seven years old to be separated from their parents. “To see our clients as vulnerable and scared as they are… these are particularly devastating,” she said.

McLoughlin said that magistrate judges, while concerned about defendants’ inability to contact their children, did not necessarily consider it relevant to their criminal cases and did not order the government to provide any remedy. She did her best to reconnect her clients and their children through ORR, but usually they were convicted and transferred to immigration detention before she received any information. In Immigration and Customs Enforcement (ICE) custody, detainees had no right to a lawyer, limited access to a telephone, and no ability to receive phone calls. In most cases, McLoughlin did not know what had happened to her clients after their criminal cases ended.

In audio recordings and news accounts from several courts, magistrate judges provided incorrect answers or no answers to defendants’ questions about whether a guilty plea would help them reunite with their children.

In audio obtained by The Intercept from a hearing in Brownsville, Texas, one woman asked Magistrate Judge Ronald Morgan, “is my little girl going to go with me when I get deported?” Morgan responded to her, and another man who worried about his six-year-old, that his understanding was “you’re going to be sent to an immigration camp. At that immigration camp, you are supposed to be joined by your child. You and the child will be together at a camp until such time that the both of you are sent back.” As detailed further below, there is no system for reunifying families after a separation.

Vice News posted audio from a similar hearing in McAllen, Texas. A defendant said to Magistrate Judge J. Scott Hacker, “I was told when I was separated from my son that you were going to tell me when I would see my son again.” Hacker replied, “I don’t know who told you that, but you were told incorrectly. I have no information regarding your child.”

The Washington Post described how, at a hearing in McAllen before Magistrate Judge Peter Ormsby, one defendant initially pleaded not guilty out of fear of being deported without his 11-year-old son. But after his public defender told him that his best chance of reuniting was to plead guilty, he changed his plea. Judge Ormsby told that father and 13 other defendants who had been separated from their children: “I trust and hope that you will be reunited with your family members. But I also hope you understand that the reason there was a separation is that you violated the laws here of the United States.”

According to the Brownsville Herald, Ormsby later told attorneys that he had assumed that, in the majority of cases where parents received a sentence of time-served, they were reunited with their children after court. But public defender Kyle Blair Welch said that when he asked the government how likely it was that parents and children would be reunited after a time-served sentence, he was told, “they just don’t track that at all.” Ormsby said, “pretty often the court will require the government to make sure that someone gets their wallet back, and how much more significant is a person’s child or family member.”

Other judges have reportedly made the same analogy, but magistrates have hesitated to order the government to reunify families despite evidence that the government will not do so on its own. Most defendants in Ormsby’s court are taken there from and returned to Border Patrol custody—in many cases, to a 72,000-square-foot processing center in McAllen, which many journalists recently toured. Manuel Padilla, head of the Border Patrol’s Rio Grande sector, told the Los Angeles Times that his officers had separated 1,174 children, and reunited only 463 with their parents after they were returned from court.

“A Crisis That the Government Is Creating”

A recent DHS press release says that it is a “myth” that “once separated, arriving alien adults cannot contact minors and are not told where the minors are being held of the Department of Health and Human Services.” DHS asserts that the agency “is committed to and has procedures in place to connect family members after separation.”

But the only consistent procedure that seems to be in place is that DHS provides detainees with a handout with phone numbers and email addresses they can use to contact ORR, and has started posting those numbers in immigration detention facilities. Advocates stay that this falls far short of a functional system for reunification.

“DHS and ORR still lack any systematic way to connect separated parents with their children,” Diane Eikenberry, associate director of policy for the National Immigrant Justice Center, told me. Eikenberry said that parents still cannot make calls while detained in criminal custody by the U.S. Marshals Service. Eikenberry said that ICE custody “is slightly less of a black hole” than criminal custody, but there were still major obstacles to making contact.

Cambria, the immigration attorney, described phone access in immigration detention as “horrible,” with severe restrictions on outgoing calls and no ability to receive calls. The ORR hotline can have long hold times. Even if a parent gets through, the inability to leave a call-back number is a major problem.

The DHS handout recommends that parents have their child’s alien registration number when they contact ORR, but because the children are processed as unaccompanied, parents often do not know that number. The government also does not have any system for providing parents’ information to children or their ORR caseworkers.

Even if parents do manage to make contact, the chances of actually reuniting with their children before being deported are slim. At a court hearing in the ACLU class action challenge to family separation on May 4, U.S. District Judge Dana Sabraw asked the government if there was a mechanism for parents prosecuted for unlawful entry to reunite with their children after they served their sentences. Justice Department attorney Sarah Fabian answered that “as long as [the parent] is subject to detention there is not a process that would reunite them at that time because she is in ICE custody and remains unavailable.”

Leah Chavla, a policy adviser for the Women’s Refugee Commission, said that ORR shelters were already nearing capacity, and ORR did not have experience caring for an influx of very young children. Some of the children being separated were “still babies,” and “it takes a lot more resources to take care of children that young,” she said.

Astrid Dominguez, director of the ACLU’s Border Rights Center in Texas, said that by separating families, the government was deliberately traumatizing children in order to scare people from seeking refuge in the United States. “It’s a crisis that the government is creating,” she said. “This is a made-up crisis by this administration.”

As DHS increases the number of children being sent to ORR shelters, it is also making it much harder for children to be released to sponsors. Once parents are sent to ICE custody they are unlikely to be released so that their children can join them, even if they have a credible claim for political asylum. Trump has vowed to end “catch and release” of migrants, and the percentage of asylum seekers granted humanitarian release to pursue their cases has dropped dramatically. In many parts of the country, the chance of release is close to zero.

If parents are unavailable, children in ORR custody can be released to other family members—but the Trump administration is about to implement a policy that is likely to intimidate many families from sponsoring children. On April 13, ORR signed an agreement to provide ICE with biographical data including names, addresses, dates of birth, identification documents, and fingerprints of “the potential sponsor and all adult members of the potential sponsor’s household.” ICE will be able to use this information to target undocumented sponsors and their relatives for deportation.

“They want to go after every single person…. they don’t care how it affects the welfare of children,” Eikenberry said. And, Chavla feared that the new policy would have a chilling effect even on sponsors with legal status. “There’s already a tremendous fear in the community,” she said.

An audio clip from a Border Patrol processing facility in the Rio Grande Valley, released by ProPublica, dramatically illustrates how these policies combine to harm vulnerable children.

In the clip, a six-year old from El Salvador, Alison Jimena Valencia Madrid, repeatedly asks someone to call her aunt, whose phone number she has memorized: “My mommy says that I’ll go with my aunt and that she’ll come to pick me up there as quickly as possible.”

Her aunt told ProPublica that her niece had called her, “crying and begging me to get her,” but she feared doing so would place her and her 9-year-old daughter’s chances of claiming asylum at even greater risk. The aunt said her niece had been moved to an ORR shelter, where her caretakers had warned her that her mother might be deported without her.

“Government-Sanctioned Child Abuse”

Judge Torres’s decision was, as he acknowledged, based on a very limited factual record. But the evidence that has emerged since then suggests that if anything, he dramatically understated the extent to which the government’s actions violate the Flores settlement.

Flores requires that the government provide children with contact with their relatives who were arrested with them. Instead, the government is not only physically separating families for the period that a parent is in criminal custody, but choosing to process them in a way that makes it extremely difficult to reunite, or even speak to one another. John Sandweg, the former acting head of ICE, has predicted that some separations would be “permanent.”

Flores requires that the government treat “all minors in its custody with dignity, respect and special concern for their particular vulnerability as minors,” and “place each detained minor in the least restrictive setting appropriate to the minor’s age and special needs.” Infants younger than one, a ten-year-old with Down syndrome, and a blind six-year-old have been separated from their parents and placed in shelters. Parents and children are sometimes separated with no opportunity to say goodbye, and without any opportunity to provide a child’s medical history or identify relatives who might be able to care for them. Caregivers have reported that young children, especially, are hysterical, regressing developmentally, and having panic attacks. Dr. Colleen Kraft, the president of the American Academy of Pediatrics, has called the current policy “nothing less than government-sanctioned child abuse.”

Trump claims that in order to end family separations, Congress and the courts have no choice but to take away immigrant children’s legal protections under Flores. The other branches of government should not listen. The solution is to enforce those protections, not weaken them.