Postcard — August 3, 2018, 11:16 am

The Grunts of the System

In the face of zero tolerance and family separation, public defenders in Texas are using novel arguments in the hopes of assisting asylum-seekers

A view of the Rio Grande from Ojinaga, Mexico. The Presidio-Ojinaga Port of Entry is in the background. Photo by the author.

Shane O’Neal is spinning his wheels. For the past half hour, we’ve been driving along the Presidio-Ojinaga border, where we’ve been trying to find a road that will lead us to the banks of the Rio Grande, the boundary between the US and Mexico. O’Neal wants to find a place along the river that’s easy enough for migrants to cross. He wants to see what they see as they enter the country, he tells me.

But now we’re stuck. His sedan sits in a puddle on a long, dirt road, just wide enough for one car to pass. His wheels spit flecks of mud onto the windshield.

This could be a metaphor for the day. We’ve spent much of it unsuccessfully looking for people trying to seek asylum at the Presidio-Ojinaga Port of Entry. It’s a shot in the dark, but it could help O’Neal in court. News reports from El Paso and McAllen alleged that Customs and Border Protection officers have been turning away asylum seekers at certain ports of entry, and we want to see if the same is happening here. In a week, O’Neal is set to defend two women—one from Guatemala, the other from El Salvador—who were separately caught crossing the border, just miles from the port. If asylum seekers are being turned away, he says, he can make the case that his clients had no legal alternative but to cross illegally.

The wheels keep spinning. Maybe this is a better metaphor for O’Neal’s line of work. An assistant federal public defender for the Western District of Texas, O’Neal at one point tells me that federal defense attorneys lose the vast majority of their cases at trial. It is June 2018, and, following the Trump Administration’s aggressive stance toward undocumented immigrants and sanctuary cities, he and his colleagues have seen their caseloads nearly double. In most criminal cases of illegal entry, they don’t stand a chance to win. But that doesn’t mean they won’t try.

Border stakeouts are not generally part of a public defender’s job description, but this is new legal territory. Since August 2017, the practice of separating families who crossed into the United States illegally has been intensifying. “This is designed [by the Trump Administration] to be a punishment to deter people,” O’Neal tells me. “The problem is, terror outweighs deterrence.” In early April, it explodes: Attorney General Jeff Sessions announces that the US government will prosecute 100 percent of people charged with illegal entry, regardless of circumstance, under its so-called “zero tolerance” policy. By late June 2018, the Department of Homeland Security announced that more than 2,000 migrant children had been separated from their parents.

I first meet O’Neal and his boss, Chris Carlin, Supervisory Federal Public Defender of the Western District of Texas, in early June, just as the issue is coming to a head. They’re easy to spot when they enter La Calavera, an outdoor Mexican restaurant in the 6,000-small town of Alpine, where their district office is located. They are wearing dark suits that look bulky and burdensome beneath the white heat of the desertscape around us. In West Texas, the typical attire consists of a pair of blue jeans, a button-down shirt, and a cowboy hat that sits on the dashboard of your truck when it’s not on your head. The only folks out here who wear suits are attorneys.

Carlin and O’Neal order and sit with me at a table. “Most of the time we don’t talk to the press,” says Carlin, “but the whole reason we’re doing this is because the possibility of a permanent separation of parent and child is not something that is anticipated under the law. There’s nothing under the law of the United States that countenances that outcome in a trial of this nature. That’s why this is crazy.”

Carlin and O’Neal are no strangers to family separation, since, in any case where a person is being criminally prosecuted, their child is consequently removed. O’Neal offers me a matter-of-fact example: “When you arrest somebody for bank robbery, their kid can’t be with them in jail.”

But illegal entry is a far cry from bank robbery—it’s classified as a petty misdemeanor, one of the least serious of federal offenses. In the past, the government could exercise prosecutorial discretion in cases of illegal entry and, in most cases, would choose not to prosecute people who had arrived with children. Now, the frequency of family separation cases resulting from petty misdemeanor prosecutions, Carlin and O’Neal say, is alarming. “The bureaucracy of immigration enforcement as it pertains to young children has been weaponized and it’s now being used as a criminal deterrent,” Carlin says.

Though family separation cases still represent just a fraction of their current caseload, these cases also tend to take up more time and resources. The Department of Homeland Security claims it has “well-established reunification processes” in place; however, in O’Neal and Carlin’s experience, the onus to facilitate contact among parents and children has invariably fallen on them.

A week prior to meeting, Carlin defended three Guatemalan women charged with illegal entry in the Alpine District Court. The women had been apprehended crossing the border illegally in the border town of Presidio, Texas, some ninety miles southwest of Alpine. While they were detained in West Texas, their children—one aged eight, the other two aged nine—were sent to Cayuga Centers, a foster care facility in New York City.

“The moms had no idea where those kids were; they had not been contacted,” Carlin said. When he spoke with them, “the case workers at Cayuga Centers … had no idea that they had arrived with their mothers. They didn’t know anything about the moms. They didn’t know the mothers’ names, they didn’t know their immigration file numbers.” (Cayuga Centers never responded to requests to comment on this story.)

That they were even able to speak to their children was thanks to Carlin and his colleagues. “That’s something that my office facilitated by putting the children’s case workers in touch with the facility where my clients were being held,” he said. “You’re trying to facilitate contact between parents and kids, and to ensure some means of contacting family back in Guatemala in the event that our client is deported. It can take a long time to do that.”

He added, “I’ve had an unpaid college intern working on this since it started.”

O’Neal also attempted to make contact with the children of his own clients—one from Guatemala, the other from El Salvador—and, after hours of phone calls and transfers, discovered that two children were in a foster care facility in New York, and the other was in Arizona. Meanwhile, his clients were being detained in West Texas. “What is most interesting is the layer of bureaucracy we went through to get that information,” O’Neal said, adding that the caseworkers he spoke to also seemed to have no prior knowledge of where the parents were incarcerated.

Even before zero tolerance, the Western District of Texas—which includes the border communities of El Paso and Del Rio—had the second heaviest caseload in the country after the Southern District of Texas, its neighbor. Both districts are bogged down by cases of petty immigration-related offenses—a consequence of stringent G.W. Bush-era immigration measures—so much so that mass hearings and sentencings, which attorneys and activists argue defy due process, have become standard procedure.

These overwhelming numbers aren’t due to an increase in border crossings, but to increasingly stringent border and immigration enforcement programs. Border Patrol statistics show that in 2017, apprehensions at the border were less than a third of what they were in 2007; however, during that same time period, the number of criminal prosecutions referred by Customs and Border Protection and ICE increased from 45,674 to 65,611. By 2016, 52 percent of all federal criminal prosecutions were immigration-related. And, as of April 2018, criminal prosecutions referred by Customs and Border Protection on the southwest border had increased by 60 percent from January of that year.

Carlin and O’Neal are the grunts of the system. “We’re not a powerful public agency; we’re public defenders,” Carlin says. “We’re like the least powerful entity.”

It can often feel that way when the vast majority of cases they try are losses. But it’s hard to make a case against illegal entry when Border Patrol has a clear record of apprehension. Most of the time, Carlin says, clients plead guilty when they realize how soon they could be out jail—within a day or two before they are transferred to immigration custody—if they do. Still, they always have the option of a trial. “If a client says ‘I want a trial,’ my duty as a lawyer is to analyze the case and make every good legal argument as to why the person should be acquitted. Sometimes it’s based in the facts, sometimes in the letter of the law,” Carlin said.

Prior to zero tolerance, Carlin and O’Neal rarely encountered misdemeanor trials, and so rarely had the opportunity to fight these cases of illegal entry. Lately, in addition to the government’s refusal to dismiss these cases, O’Neal said he’s noticed his clients are much more eager to fight them. “Meeting with the parents of children who were separated, they were so upset by the separation, they seemed to lose all consideration of how long they were going to spend in jail,” O’Neal said. “When we told them they would have to wait two to three weeks for trial, they said, ‘I want to fight my case.’” Amid their increasing caseload, Carlin and O’Neal have been trying novel defenses that they hope will help the courts view the issue in a new light.

In the case of the three Guatemalan women, Carlin tried a defense vested in semantics. In all instances of illegal entry, the person charged must have entered at a time and place—outside a designated port of entry—recorded by immigration officials. Carlin’s clients had crossed the border within the town of Presidio, Texas, several hundred yards from the Customs and Border Protection station, and were arrested while walking toward the inspection point.

Each international port of entry is defined within a code of federal regulations that all courts use. In some cases, a specific facility is defined; however, most ports of entry are merely described by a geographical location. Though the inspection point in Presidio is right next to the Presidio-Ojinaga International Bridge, within this code of federal regulations, the port of entry is simply referred to as Presidio, Texas.

Carlin made the case that since his clients technically entered within the geographical region specified by the code of regulations—Presidio, Texas—and in such a manner that they’d intended to be inspected by immigration officials; therefore, they were not crossing illegally.

The presiding magistrate judge, David Fannin, didn’t buy it. He found all of the defendants guilty. Carlin filed an appeal. “I’m not making the case because it’s novel; I’m making it because I think it’s right,” Carlin says. “Every trial is different and every legal situation is different. It’s good because it forces the courts to look at these issues with fresh eyes.”

That’s what O’Neal aims to do, too, and why he’s willing to make the 90-mile trek to the border in search of asylum seekers. He’s prepared to try his new defense—that without the recourse to petition for asylum, his clients have no choice but to cross illegally. If that doesn’t work, he’s got a few other tricks up his sleeve.

“We’re looking at new ways to apply the law that haven’t been applied in the past because we’re being confronted by a new situation in these family separation cases,” O’Neal says. “It’s very hard to find a court that’s even considered the question, ‘Where is the port of entry?’”

Whether or not he wins won’t make much practical difference for his clients in the short term, though having a criminal record can affect a person’s chances of making an asylum claim, and obtaining citizenship in the future. But a win won’t reunify them with their children any sooner. And, regardless of the verdict, they will be transferred to immigration custody, and in all likelihood, will be deported. “The only difference is they don’t have a conviction, as opposed to having the conviction,” O’Neal said.

So, why bother? Their food arrives: A basket of steak tacos for Carlin and avocado tostadas for O’Neal. They tuck in, alternating their responses to me with their bites. Their ravenousness is the kind that makes you hungry to look at.

“In my experience, public defenders are idealistic, but they’re not naive. They know what they’re up against, and they know how it works,” Carlin says. “They want to fight for the person that’s placed in dire circumstances, has their back against the wall against a really large machine. I like to get a poke or two at the dragon before I get killed.”

Sometimes, that fight is rewarded. “Sometimes your client wins. If you’re a defender, you live for those moments. You have to believe that working within the system will eventually pay off because the system is designed to provide justice,” Carlin says.

Within an immigration system that has separated children as young as nine months from their parents and put three-year-olds on trial without their parents, the right to an attorney is one of the few remaining avenues that effectively restores some semblance of dignity to those charged with the crime of illegal entry.

O’Neal never gets the chance to defend his clients at trial. Before O’Neal’s scheduled court date, President Trump announces his executive order to prevent family separations. But ending family separations without eliminating the real source of the problem—the zero tolerance policy—is a virtually impossible task. Without the infrastructure to detain families together while migrants await trial, they will continue to be held in separate facilities, sometimes in different states. “You’re put in an impossible situation because you have a directive to do two things and you can’t do both of them,” Carlin says. “Unless you have the capability to keep the families together, you can’t carry out that order.” In the aftermath of the executive order, federal entities continue to scramble to make good on Trump’s promise.

A day after Trump signs the executive order, the US Attorney’s office for the Western District of Texas dismisses certain pending cases of illegal entry involving the separation of families, including the two cases O’Neal is set to represent. O’Neal tells me he thinks they do so because if they continue to prosecute these cases, they will defy Trump’s executive order. However, by dismissing these cases, they are effectively overturning Trump’s zero tolerance policy. “Following the President’s executive order, we are moving quickly to keep families together as we process the criminal charges for those who crossed illegally,” the US Attorney’s Office says in an official statement. “The zero tolerance policy is still in effect but there is a necessary transition that will need to occur now that those charged are no longer being transferred to the custody of US Marshals and are staying together with their children in the custody of our partners at DHS. As part of that transition, the office today dismissed certain cases that were pending when the President issued the order.”

O’Neal tries to facilitate contact between his clients and their children. Once the process of deportation occurs, he fears that the possibility of reunification will be untenable. It’s not his job—they aren’t his clients anymore—but he reaches out anyway, coordinating with the children’s caseworker in the likely event that the two mothers from Guatemala and El Salvador are deported.

Meanwhile, the three Guatemalan women Carlin defended are set to be deported. Only one of them, Emilia Figueroa, was able to make a credible fear claim for asylum, though her application for an asylum interview was denied, according to Carlin. She, like many others in her situation, testified that she had been extorted by gang members. Figueroa claimed that they had acquired her phone number and “were calling and threatened to take away my little baby.”

“They told me that if they—I didn’t give them any money, that they would either harm me or harm my child,” Figueroa said in court. When asked why she came to the United States, she said, “Because, supposedly, this is a place where you’re not going to have any violence like the ones that we have in our country.”

Now she’s a plaintiff in a civil lawsuit filed by a handful of El Paso immigration attorneys, disputing the unlawful separation of parents and children. Hers is just one of a handful of lawsuits like it that are being filed.

“There are other legal avenues that could potentially help these clients. And that, to me, that’s hopeful,” Carlin says. “If anything, it’s going to be these lawsuits that make the difference—not the executive order.”

When O’Neal and I finally do make it to the Rio Grande, we climb down its bank, muddy from early monsoon rains. In this stretch of West Texas, the Rio Grande makes a mockery of its name. Its flow has stagnated from decades of building sediment, a result of the invasive carrizo cane that has choked the river’s flow. Still, with the recent rains, the river is much too high to cross without having to swim. We turn toward the direction of the port of entry, a slim white line barely discernible above the horizon that is dwarfed by the vast and mountainous terrain.

“My clients often have difficulty describing to me what they face and what it looks like when they crossed,” O’Neal tells me. “They don’t know what they’re looking at or what’s going on. It’s important to communicate what it looks like to the court, so they can see it.”

He squints into the distance. “I’m not sure I’d know where to cross, either, if I were just turning up here for the first time,” he says.

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