Immigration Law

Feds Employ Cruel Tactic in Attempt to Skirt Flores Settlement

Lomi Kriel, Houston Chronicle, Dec. 29, 2017 - "Thirteen-year-old Luis was crying as federal agents ordered him into the government vehicle. Tell your mother goodbye, they said.

It was late October, and Blanca Vasquez and her son had only been in the United States for a few hours. They had crossed the Rio Grande near El Paso, giving themselves up to Border Patrol agents with the intention of asking for asylum. A gang in El Salvador had murdered her husband, a military sergeant, and she said they were now after Luis.

For decades, hundreds of thousands of immigrant families from Central America, escaping gang violence and political persecution, have followed a similar path, relying on international treaties protecting those seeking asylum from being summarily turned away.

Vasquez figured she and Luis would be detained, or even released, while she fought for asylum. A 20-year-old federal settlement that bars the extended detention of migrant children and holds that they should ideally be kept with their parents would ensure they stayed together.

But that was then. This summer, the practice changed.

Under orders from President Donald Trump's administration, the federal government would begin broadly prosecuting parents who enter illegally, forcing the removal of their children who cannot by law be kept in prison. That enables the administration to bypass the so-called Flores Settlement and detain parents until they are deported or win asylum, rather than freeing them with their children to wait for their cases in the backlogged civil immigration courts, a practice known as "catch and release" that Trump has vowed to end.

The possibility of being criminally prosecuted and separated from their children, the government argued, would deter Vasquez and other migrants from making the dangerous journey north.

But for Vasquez it was too late to turn back.

She was in federal prison. And her son Luis was, where?

No one would say.

... In court, more than a dozen Border Patrol agents and an expert witness had arrived from across the country at taxpayer expense to testify for the government. The only witnesses for the defendants were their children, whose very whereabouts were unclear.

Sergio Garcia, an assistant federal public defender for the Western District of Texas, argued that the government's practice of separating families by prosecuting parents violates the U.S. Constitution. In removing their children and withholding information about them, the government forced parents to plead guilty so that they could quickly reunite.

The government contended that the parents could take their cases to trial or post bond as in any other criminal proceeding. Not pursuing charges against parents traveling with children would encourage more to come here and even incite trafficking, the lawyers argued, if having a minor proves a protection against prosecution.

U.S. Magistrate Judge Miguel Torres appeared conflicted.

On one hand, he worried that prosecuting parents prevents them from participating in their children's immigration cases, noting that even the most egregious criminals retain parental rights. He suggested that concern about their children could factor into parents pleading guilty.

"As a practical matter, there's no meaningful way for these (migrant) parents to know anything about their kids," Torres said. "Parents don't know if they're going to be deported before, after, or at the same time as their kids."

On the other hand, the jurist was hard-pressed to dismiss the complaint. The parents, after all, had crossed the border illegally, fulfilling the principal element of the crime for which they stood accused. A higher court would have to decide if their due process rights had been violated.

In a speedy trial, slowed only by the public defender's efforts to enter arguments into the record for an appeal, the judge found Vasquez and her codefendants guilty of the misdemeanor crime of improper entry. He sentenced them to one year of non-reporting probation.

In practice, they would be transferred to immigration detention. There they could quickly be deported, sometimes without their children and even putting their custody at risk. If asylum officials find the parents have a credible fear of returning home, they could remain in prison for months without seeing their children until their asylum claims are adjudicated.

Such a practice of family separation is "so fundamentally unconscionable it defies countless international and domestic laws on child welfare, human rights and refugees," according to a complaint advocacy groups, including the Women's Refugee Commission, filed with the Department of Homeland Security this month."