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.

Single Page

Get access to 168 years of
Harper’s for only $45.99

United States Canada



October 2018

Checkpoint Nation

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content


Checkpoint Nation·

= Subscribers only.
Sign in here.
Subscribe here.

Laura Sandoval threaded her way through idling taxis and men selling bottles of water toward the entrance of the Cordova International Bridge, which links Ciudad Juárez, Mexico, to El Paso, Texas. Earlier that day, a bright Saturday in December 2012, Sandoval had crossed over to Juárez to console a friend whose wife had recently died. She had brought him a few items he had requested—eye drops, the chimichangas from Allsup’s he liked—and now that her care package had been delivered, she was in a hurry to get back to the Texas side, where she’d left her car. She had a three-hour drive to reach home, in the mountains in New Mexico, and she hated driving in the dark.

Sandoval took her place in the long line of people waiting to have their passports checked by US Customs and Border Protection (CBP). When it was her turn, she handed her American passport to a customs officer and smiled amicably, waiting for him to wave her through. But the officer said she had been randomly selected for additional screening. Sandoval was led to a secondary inspection area nearby, where two more officers patted her down. Another walked toward her with a drug-sniffing dog, which grew agitated as it came closer, barking and then circling her legs. Because the dog had “alerted,” the officer said, Sandoval would now have to undergo another inspection.

Checkpoint on I-35 near Encinal, Texas (detail) © Gabriella Demczuk
The Printed Word in Peril·

= Subscribers only.
Sign in here.
Subscribe here.

In February, at an event at the 92nd Street Y’s Unterberg Poetry Center in New York, while sharing the stage with my fellow British writer Martin Amis and discussing the impact of screen-based reading and bidirectional digital media on the Republic of Letters, I threw this query out to an audience that I estimate was about three hundred strong: “Have any of you been reading anything by Norman Mailer in the past year?” After a while, one hand went up, then another tentatively semi-elevated. Frankly I was surprised it was that many. Of course, there are good reasons why Mailer in particular should suffer posthumous obscurity with such alacrity: his brand of male essentialist braggadocio is arguably extraneous in the age of Trump, Weinstein, and fourth-wave feminism. Moreover, Mailer’s brilliance, such as it was, seemed, even at the time he wrote, to be sparks struck by a steely intellect against the tortuous rocks of a particular age, even though he labored tirelessly to the very end, principally as the booster of his own reputation.

It’s also true that, as J. G. Ballard sagely remarked, for a writer, death is always a career move, and for most of us the move is a demotion, as we’re simultaneously lowered into the grave and our works into the dustbin. But having noted all of the above, it remains the case that Mailer’s death coincided with another far greater extinction: that of the literary milieu in which he’d come to prominence and been sustained for decades. It’s a milieu that I hesitate to identify entirely with what’s understood by the ringing phrase “the Republic of Letters,” even though the overlap between the two was once great indeed; and I cannot be alone in wondering what will remain of the latter once the former, which not long ago seemed so very solid, has melted into air.

What I do feel isolated in—if not entirely alone in—is my determination, as a novelist, essayist, and journalist, not to rage against the dying of literature’s light, although it’s surprising how little of this there is, but merely to examine the great technological discontinuity of our era, as we pivot from the wave to the particle, the fractal to the fungible, and the mechanical to the computable. I first began consciously responding, as a literary practitioner, to the manifold impacts of ­BDDM in the early 2000s—although, being the age I am, I have been feeling its effects throughout my working life—and I first started to write and speak publicly about it around a decade ago. Initially I had the impression I was being heard out, if reluctantly, but as the years have passed, my attempts to limn the shape of this epochal transformation have been met increasingly with outrage, and even abuse, in particular from my fellow writers.

As for my attempts to express the impact of the screen on the page, on the actual pages of literary novels, I now understand that these were altogether irrelevant to the requirement of the age that everything be easier, faster, and slicker in order to compel the attention of screen viewers. It strikes me that we’re now suffering collectively from a “tyranny of the virtual,” since we find ourselves unable to look away from the screens that mediate not just print but, increasingly, reality itself.

Photograph (detail) by Ellen Cantor from her Prior Pleasures series © The artist. Courtesy dnj Gallery, Santa Monica, California
Nothing but Gifts·

= Subscribers only.
Sign in here.
Subscribe here.

If necessity is the stern but respectable mother of invention, then perhaps desperation is the derelict father of subterfuge. That was certainly the case when I moved to Seattle in 1979.

Though I’d lived there twice during the previous five years, I wasn’t prepared for the economic boom I found upon this latest arrival. Not only had rent increased sharply in all but the most destitute neighborhoods, landlords now routinely demanded first, last, and a hefty security deposit, which meant I was short by about fifty percent. Over the first week or so, I watched with mounting anxiety as food, gas, and lodging expenses reduced the meager half I did have to a severely deficient third. To make matters even more nerve-racking, I was relocating with my nine-year-old son, Ezra. More than my well-being was at stake.

A veteran of cold, solitary starts in strange cities, I knew our best hope wasn’t the classifieds, and certainly not an agency, but the serendipity of the streets—handmade for rent signs, crowded bulletin boards in laundromats and corner grocery stores, passersby on the sidewalk; I had to exploit every opportunity that might present itself, no matter how oblique or improbable. In Eastlake, at the edge of Lake Union between downtown Seattle and the University District, I spied a shabby but vacant one-story house on the corner of a block that was obviously undergoing transition—overgrown lots and foundation remnants where other houses once stood—and that had at least one permanent feature most right-minded people would find forbidding: an elevated section of Interstate 5 just across the street, attended by the incessant roar of cars and trucks. The house needed a new roof, a couple of coats of paint, and, judging by what Ezra and I could detect during a furtive inspection, major repair work inside, including replacing damaged plaster-and-lath walls with sheetrock. All of this, from my standpoint, meant that I might have found a solution to my dilemma.

The next step was locating the owner, a roundabout process that eventually required a trip to the tax assessor’s office. I called the person listed on the rolls and made an appointment. Then came the moment of truth, or, more precisely, untruth, when dire circumstance begot strategic deception. I’d never renovated so much as a closet, but that didn’t stop me from declaring confidently that I possessed both the skills and the willingness to restore the entire place to a presentable—and, therefore, rentable—state in exchange for being able to live there for free, with the length of stay to be determined as work progressed. To my immense relief, the pretense was well received. Indeed, the owner also seemed relieved, if a bit surprised, that he’d have seemingly trustworthy tenants; homeless people who camped beneath the freeway, he explained, had repeatedly broken into the house and used it for all manner of depravity. Telling myself that inspired charlatanry is superior to mundane trespassing—especially this instance of charlatanry, which would yield some actual good—I accepted the keys from my new landlord.

Photograph (detail) © Larry Towell/Magnum Photos
Among Britain’s Anti-Semites·

= Subscribers only.
Sign in here.
Subscribe here.

This is the story of how the institutions of British Jewry went to war with Jeremy Corbyn, the leader of the Labour Party. Corbyn is another feather in the wind of populism and a fragmentation of the old consensus and politesse. He was elected to the leadership by the party membership in 2015, and no one was more surprised than he. Between 1997 and 2010, Corbyn voted against his own party 428 times. He existed as an ideal, a rebuke to the Blairite leadership, and the only wise man on a ship of fools. His schtick is that of a weary, kindly, socialist Father Christmas, dragged from his vegetable patch to create a utopia almost against his will. But in 2015 the ideal became, reluctantly, flesh. Satirists mock him as Jesus Christ, and this is apt. But only just. He courts sainthood, and if you are very cynical you might say that, like Christ, he shows Jews what they should be. He once sat on the floor of a crowded train, though he was offered a first-class seat, possibly as a private act of penance to those who had, at one time or another, had no seat on a train.

When Corbyn became leader of the Labour Party, the British media, who are used to punching socialists, crawled over his record and found much to alarm the tiny Jewish community of 260,000. Corbyn called Hez­bollah “friends” and said Hamas, also his “friends,” were devoted “to long-term peace and social justice.” (He later said he regretted using that language.) He invited the Islamist leader Raed Salah, who has accused Jews of killing Christian children to drink their blood, to Parliament, and opposed his extradition. Corbyn is also a patron of the Palestine Solidarity Campaign and a former chair of Stop the War, at whose rallies they chant, “From the river to the sea / Palestine will be free.” (There is no rhyme for what will happen to the Jewish population in this paradise.) He was an early supporter of the Boycott, Divestment, and Sanctions (BDS) movement and its global campaign to delegitimize Israel and, through the right of return for Palestinians, end its existence as a Jewish state. (His office now maintains that he does not support BDS. The official Labour Party position is for a two-state solution.) In the most recent general election, only 13 percent of British Jews intended to vote Labour.

Corbyn freed something. The scandals bloomed, swiftly. In 2016 Naz Shah, Labour MP for Bradford West, was suspended from the party for sharing a Facebook post that suggested Israel be relocated to the United States. She apologized publicly, was reinstated, and is now a shadow women and equalities minister. Ken Livingstone, the former mayor of London and a political supporter of Corbyn, appeared on the radio to defend Shah and said, “When Hitler won his election in 1932, his policy then was that Jews should be moved to Israel. He was supporting Zionism before he went mad and ended up killing six million Jews.” For this comment, Livingstone was suspended from the party.

A protest against anti-Semitism in the Labour Party in Parliament Square, London, March 26, 2018 (detail) © Yui Mok/PA Images/Getty Images

Chance that a country to which the U.S. sells arms is cited by Amnesty International for torturing its citizens:

1 in 2

A newly discovered lemur (Avahi cleesei) was named after the comedian John Cleese.

Kavanaugh is confirmed; Earth’s governments are given 12 years to get climate change under control; Bansky trolls Sotheby’s

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!


Happiness Is a Worn Gun


Illustration by Stan Fellows

Illustration by Stan Fellows

“Nowadays, most states let just about anybody who wants a concealed-handgun permit have one; in seventeen states, you don’t even have to be a resident. Nobody knows exactly how many Americans carry guns, because not all states release their numbers, and even if they did, not all permit holders carry all the time. But it’s safe to assume that as many as 6 million Americans are walking around with firearms under their clothes.”

Subscribe Today