By late November, after five weeks in jail and with no idea where their children had been taken, Garcia’s clients were ready to give in to the government and plead guilty. He convinced them not to: Fighting — even from jail cells — was the only way they could stay in the country long enough to figure out where their kids had gone. At the November hearing, he asked Torres, the judge, to grant his motion to dismiss the charges.
“These defendants shouldn’t even be here,” Garcia argued. “They should be in immigration court.”
He believed that Torres felt the same way, since he had requested that the federal defender’s office represent the families. It came as a shock when the judge sided with the government instead and refused to dismiss the charges. (Torres declined to be interviewed.)
Their only chance now was a bench trial before the same judge, to be followed by an appeal in District Court, where, Garcia hoped, another judge would rule differently about criminally charging asylum-seekers.
Before the trial, Garcia went to see Ms. Zavala to help her prepare. She was feeling defeated, and her health had deteriorated; she was so distraught over the loss of her grandson that she couldn’t sleep. Garcia crossed the street from his office and entered the concrete, windowless county jail. He asked a guard if he could meet with the grandmother in a visitation room instead of speaking through a plexiglass divider, and he asked for her leg restraints to be removed. The guard agreed.
The border fence reflected in the Rio Grande from Ciudad Juárez, Mexico. October 29, 2020.Image: Justin Hamel for The Intercept
Garcia hugged the older woman, and she began to weep. “Don’t worry, we will find your grandson,” Garcia told her. He was desperate to find the children, both to reunite them with their families and also because he wanted them to testify to what they had suffered back home and why they had come seeking asylum. But his investigators were still having trouble locating them: ORR caseworkers said they would only give out information to the parents, but the parents were in jail with limited phone privileges and spoke Spanish.
Ms. Zavala recalled how she had brought the boy to America to be reunited with his mother — her daughter — who was working on the East Coast. She told Garcia about the many times they had gone hungry along the way, and how they had ridden “La Bestia,” the infamous freight train through Mexico, where many were robbed or fell to their deaths. But good people had also given them food and shelter, she said. The violence had been so bad in Honduras, and she believed that at least in the United States there was still hope for a future. But then they’d taken her grandson from her in the middle of the night. “Say goodbye,” the agent told her. “Because you don’t know when you’ll see him again.”
Her last image of her grandson was the boy pleading for her and crying.
“Can you hold on just a little bit longer?” Garcia asked. “If we go to trial, I think we still have a chance to win the case.”
“Yes,” she agreed, wiping the tears from her face with her hand.
“This is not Honduras, or even Mexico,” Garcia reassured her. “This is America and there are protections here. It may take a little bit of time, but we’ll make it right.”
Garcia left the jail feeling depleted. He had not suffered like they had, but he understood what it meant to lose a parent. At age 13, he had come home to find his father sitting on the curb in front of their home sobbing. “Your mother left us,” he told Garcia. His father stopped eating and became deeply depressed. “I really worried that he was going to die,” Garcia would remember later. “I couldn’t leave my dad.” His two sisters went with their mother, who died young, before they could repair the fracture. “My separation from my mom, to some extent, was voluntary,” he said. “But there was nothing voluntary about how the U.S. government — the mightiest country on the planet — took Ms. Zavala’s grandson away from her. You just don’t recover from something like that.”
The ICE El Paso Processing Center in El Paso, Texas. October 29, 2020.Image: Justin Hamel for The Intercept
He also knew what it meant to be an immigrant coming to the U.S. full of hope. He had grown up in a densely packed, working-class area of Mexico City, where as a child he hustled tourists for guided tours of the Basilica of Our Lady of Guadalupe. As soon as he turned 18, he applied for his dream job at the Mexico City airport. He was turned down because he didn’t speak English, so he applied to take English classes at the University of Utah and was accepted.
It was 1981, and there were few people in Salt Lake City who looked even remotely like Garcia. It was there that he first encountered snow, which he loved, and racism, which took him by surprise. He remembered one day in particular, when he was working as a dishwasher at a restaurant and mentioned to the assistant manager that he was also studying U.S. law. The manager laughed at him. “What, you’re going to become a lawyer, wetback?” The other workers in the kitchen laughed too. Later, he had to ask a friend what “wetback” meant. “You know what?” Garcia said, reflecting on the incident. “I used it as a motivator. Not only was I going to become a lawyer, I was going to defend immigrants.”
Lost in the System
At Border Patrol headquarters in El Paso, problems with the pilot project were multiplying. The agency’s computer database didn’t have a function to document that a family separation had occurred, so agents were manually typing the information into local spreadsheets, according to a 2019 DHS Office of Inspector General report. After intake, ICE’s Enforcement and Removal Operations division transported children to ORR custody, but each request for transport had to be manually entered and took multiple emails to confirm. Then, at ORR, information about the children would be entered into its own database based on the initial Border Patrol case files; but in many instances, those files didn’t note that a separation had occurred.
Each agency collected just enough information to carry out its own duties, but there was no centralized database that tied all of the information together. “Even though the child was in the custody of DHS, once you turned them over to ORR, you couldn’t see the record anymore,” said the Border Patrol official who worked on the project. At one point, he said, they resorted to trying to track the whereabouts of kids on a whiteboard. But as the children were moved through various agencies and shelters, they easily became lost in a fragmented system.
Public Defender Sergio Garcia holds case files in his office in downtown El Paso, Texas. October 29, 2020.Image: Justin Hamel for The Intercept
During the pilot, some agents balked at separating infants from their mothers, the official said. The Department of Health and Human Services, which oversees ORR, struggled to find shelters that could take infants and toddlers, which meant the agents had to care for them in the Border Patrol’s crowded holding facilities.
Eventually, he said, a group of agents met with the local federal prosecutors, who sided with them against Border Patrol leadership in Washington. The prosecutors asked that every case the Border Patrol brought to them include extenuating circumstances such as age and special needs. “Everybody on the ground was like, we’re not going to prosecute people with infants,” he said. “It makes no sense. It takes agents out of the field and they’re having to feed and care for the infants, when they should be guarding the border.” (CBP and the Justice Department did not respond to requests for comment regarding the meeting or problems with the databases used to track separations.)
They were allowed a certain amount of freedom on who to prosecute. “A lot of the decision-making was at the local level. Decisions like, hey, this person is breastfeeding, you know, do we separate? Or not separate? We could bump up numbers or slow down numbers,” he said. “For example, you’re prosecuting a drug case. And the drug case only has so many hours to be presented in front of the U.S. attorney’s office. So you would reallocate your manpower to focus on the serious crime and not prosecute the family groups.”
All of that changed with the nationwide rollout of zero tolerance. No exceptions would be tolerated by either the Border Patrol or Justice Department leadership in Washington. “It became very political. I suppose it was fear. Nobody wanted to tell the White House ‘no,’” he said. “Nobody wanted to say it’s 98 percent zero tolerance, not 100 percent.”
The trial in Torres’s courtroom began on December 1, 2017. Garcia was anxious and could feel trickles of sweat forming under his dark gray suit, which he had bought at a Goodwill during law school. His wife hated the suit, but he felt it had brought him luck during tough cases in the past. If he won, Garcia believed, the administration would be forced to stop using 1325 misdemeanor charges, and the criminal justice system, to rob families of their right to the asylum process.
To prepare for the case, Garcia delved into legal history for ways to challenge the separations on constitutional grounds. He soon realized that he was in uncharted territory. “I couldn’t find any other cases like it,” he said. “I had nothing to fall back on.” His mind began to churn. “I remember waking up in the middle of the night and thinking to myself, ‘Wait a minute! You can’t force them to testify. Indirectly, they’re forcing them, because the government has taken their kids. They want the parents to plead guilty thinking they’ll be reunited. That’s a Fifth Amendment violation of due process.’ I wrote it down on a yellow pad. The next morning, I ran it past Jayne at breakfast. And she’s like, ‘Yeah, you’re right!’ So I went to the office and I started drafting it.”
The border fence and razor wire along the Rio Grande between Ciudad Juárez, Mexico and El Paso, Texas. October 29, 2020.Image: Justin Hamel for The Intercept
He also turned to the Eighth Amendment, which prohibits the government from inflicting “cruel and unusual punishments” on criminal defendants. And he cited “outrageous government conduct” on the part of the border agents who had arrested the families and then split them apart, arguing that the government had acted so egregiously, it had lost its right to prosecute. The parents, he would also contend, had been deprived of their right to a fair trial. “I was trying to find every possible legal avenue to get relief,” he said. “I didn’t have to win on all five claims. All I needed was just one.”
Now nervously standing before Torres, Garcia launched into his opening argument. “My clients left their countries each with a minor child or grandchild escaping horrible violence,” he said. “The fact that these children, the key material witnesses, are missing is a violation of due process rights for a trial and of their rights against self-incrimination.”
“Now as the court knows,” replied Douglas Rennie, one of the prosecutors, “the government views these issues as totally irrelevant to this trial, and we would object to any evidence or questioning regarding those issues.”
At the November hearing, Rennie had argued that detention and a $5,000 bond was “perfectly reasonable” and well within the law. “Once they resolve their criminal cases, they can bring whatever challenges they want in the context of that immigration proceeding,” he said, seeming to care not at all, Garcia thought, that all this would unfold over months while Ms. Zavala and the others had no idea where their children were.
The prosecutors, Garcia could tell, were anxious to wrap up the trial quickly. But he wasn’t going to make it easy for them. He again asked Torres to dismiss the case. But again, Torres refused. Like the prosecutors, he seemed ready to move on. The judge asked Ms. Zavala and the others to stand up as he prepared to give his verdict.
The grandmother stood up slowly, looking unsteady and pale. “The court finds Ms. Zavala guilty of the misdemeanor offense of illegal entry into the United States,” Torres said.
As their guilty verdicts were read into the record, the five looked devastated. Garcia asked whether his clients could have a minute to address the court.
Ms. Zavala stood again before the judge. “Your Honor, I fled the violence in my country,” she said, her voice trembling. “I came here with my grandson. … He was taken from me. I don’t know where he is. … All I ask is to be with my grandson and to go back with my grandson.”
Blanca Vasquez addressed the court next. “I came here fleeing the danger in my country. My husband was killed. … I lost everything. Please help me. … When I gave myself in to immigration, they took my son away from me. They cuffed him. He is a 13-year-old little boy. … I don’t know where he is, and he needs me.”
Each one of the parents begged the judge for information about their missing children. “As you can see,” Garcia said, feeling his frustration grow, “it is not a time served issue. It is, ‘Where is my child?’ That is the question. That’s the reason why we went to trial. We don’t know where they are. The government knows.”
But if the government did know, it didn’t answer. Torres sentenced Ms. Zavala and the parents to time served and a year of nonreporting probation, so that if they tried to return to the United States after they were deported, they’d face even stiffer penalties. In a written opinion published after the trial, Torres explained that his court had “no authority to require the reunification” of the families or mandate their release from custody. “It is well beyond the limited scope of this court’s jurisdiction in these misdemeanor prosecutions,” he concluded.
Out of Time
Now that Ms. Zavala and the parents were in the hands of immigration, ICE agents didn’t have to tell Garcia which detention facility they were sending them to, or when they would be deported. Desperate, he began to search for an immigration law firm that might take up their cases pro bono and prevent them from being deported.
Garcia still held hope that a district judge would overturn Torres’s decision, but he was becoming cynical. It didn’t seem to matter what he argued in court. It was the holiday season, and he no longer knew where his clients or their children were.
Finally, in mid-February, he got some good news. One of his clients, Blanca Vasquez, had been profiled in a Houston Chronicle story, which laid out in great detail the murder of her husband in El Salvador and the persecution of her family by corrupt soldiers and criminal gangs. An immigration attorney had won her a reprieve from deportation, and the lawyer called Garcia to tell him that Vasquez was being held at an ICE facility near the El Paso airport.
Garcia visited with Vasquez in a holding room at the detention center. She was gaunt after so many months in detention and was on crutches, having suffered a bad fall. Garcia asked her how the others were doing. He wanted to tell them that their appeal had been set for June, to give them hope.
“They’re gone,” she said. “I haven’t seen them in a while.”
“What do you mean?” Garcia asked, his anxiety mounting. He rushed back to the front desk. “I need to know what happened to my clients,” he begged, giving the clerk their names.
The clerk shook his head. “They’re not here.”
“Were they deported? Please, could you tell me?”
After a few more minutes of pleading, the clerk finally took pity on Garcia and looked up their names in the records database. They had been deported two weeks before his visit.
There Was No Plan
As Garcia was trying every legal avenue to reunite the families, the Trump administration was secretly preparing to roll out zero tolerance nationwide. The five-month pilot project in El Paso had demonstrated that government agencies had no effective way to track children or reunite families. In an after-action report, Border Patrol agents who had been involved in the project warned leadership in Washington, including then-acting chief Carla Provost, that a nationwide rollout wouldn’t work, the El Paso Border Patrol official said. “We told them that it would collapse the system.”
Because of the database failures during the pilot project, the El Paso agents requested that the enforcement system, which is managed in Washington, D.C., be upgraded to properly track family separations. “What I heard,” he said, “was that headquarters said it was evaluating whether to make the changes. That they would take a look at it.” What agents on the ground didn’t realize, however, according to a November 2019 DHS OIG report, was that leadership had already decided that fixing the problems “was not a high enough priority to warrant the time and resources.”
The El Paso sector’s after-action report also highlighted a 64 percent reduction in illegal crossings on the border during the pilot project, which the White House and DHS leadership seized upon as a sign of success.
But the official who worked on the pilot project said the reduction didn’t mean that people from the Northern Triangle had stopped coming to the U.S. border. “The prosecutions didn’t deter them, it just delayed them. They went to a port of entry instead. So if it’s gonna be called a success, it’s just a success in saying, ‘Yeah, they went back to the port of entry,’ but it wasn’t a success in the reduction of the flow,” he said. “It was basically symbolic.”
In April 2018, Sessions issued a memo to prosecutors along the southwest border to “adopt immediately a zero-tolerance policy for all offenses referred for prosecution under section 1325.”
Rod Rosenstein, Sessions’s deputy attorney general, later told the Justice Department’s inspector general that his boss “understood what the consequences were,” according to the New York Times. Despite frequently stating that parents would be quickly reunified with their children after being prosecuted, Justice Department officials understood that parents were serving jail sentences lengthy enough to “ensure that children would be sent to the custody of officials at the Health and Human Services Department for long periods of time,” the inspector general reported.
“The AG’s goal,” Rosenstein told the inspector general, according to the Times, “was to create a more effective deterrent so that everybody would believe that they had a risk of being prosecuted.”
After Sessions issued his directive, according to NBC News, Sessions, Miller, and other senior advisers at the White House pressured then-DHS Secretary Kirstjen Nielsen to sign off on a memo directing CBP to begin referring families for prosecution across the entire southern border.
Six months after Border Patrol leadership in Washington halted the pilot project, the El Paso official said, agents were surprised to be summoned late on a Friday afternoon to a conference call with headquarters. On the call was every Border Patrol sector chief along the southern border, as well as Provost and Rodney Scott, who would eventually succeed Provost as head of the agency. Brian Hastings, then-chief of law enforcement operations, made the announcement, the El Paso official remembered. “They said that we were going to prosecute everyone. That it would be zero tolerance.”
The prosecutions would begin the following day, which was Cinco de Mayo, an important holiday along the border. Immediately, there were a lot of questions. “Everybody was like, have the U.S. marshals been notified, has ERO been notified, has HHS been notified?” he said. “You know, do we have shelter space? What’s going to happen with reunifications?”
Leadership’s response was “we’ll figure it out as we go,” he said. “None of the problems we’d had during the pilot project had been fixed. There was no plan to keep track of the kids. But since it became political, leadership was just like, ‘Well, let’s do it anyway.’”
Once zero tolerance was rolled out nationwide, he said, the pressure was intense from both Border Patrol and Justice Department leadership to prosecute as many families as possible. “They were calling, asking for numbers for both sides,” said the El Paso official. “And if Border Patrol had detained 50 family groups, and the prosecutors had only prosecuted 30 families, then they wanted to know why.”
Searching for Answers
For months Garcia had been trying to expose the government’s separation of families in El Paso, both in court and through the media. With the onset of nationwide zero tolerance, the administration began to forcibly separate thousands of families up and down the southern border. Detention facilities filled with grief-stricken parents, while traumatized children were shipped to tent camps and other makeshift shelters. Due to overcrowding and lack of medical care, children died from illness while in government custody, and some parents committed suicide after being separated. Much of America recoiled from the cruel measure, and national protests and international condemnation moved the United Nations Human Rights Council to issue a statement equating family separation with torture.
It was amid this maelstrom that Garcia appeared, without his clients, for his June appellate hearing before District Judge Kathleen Cardone. The judge issued her verdict in favor of the government and Torres’s ruling. “The court does not pass judgment on the manner in which the government elected to administer and oversee the handling of these migrants and their immigration cases. That issue is not before the court in this criminal case,” she wrote.
Less than two weeks later, Trump issued an executive memorandum to end family separation. A week after that, a U.S. district judge presiding over a class-action lawsuit brought by the American Civil Liberties Union ordered the administration to quickly reunite those held in its custody. In Garcia’s mind, it was already too late. Thousands of families had been harmed.
It would take months for HHS to report an initial count to the court of 2,814 children separated from their parents in May and June of 2018. In October 2019, when the children from the El Paso pilot project were finally counted by HHS, another 1,556 were added to the list. Due to the ad hoc system of tracking children, or in many cases not tracking them at all, HHS later concluded that the real number of children separated by the administration would likely remain “unknown, but likely significantly more” than what it had tallied for the lawsuit.
During a press conference on October 21, Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, estimated that, based on what they’d discovered through litigation, at least 5,500 families had been separated. “I think it’s far more than the public realizes,” he said. “And the parents of 545 kids still haven’t been found.” Many of them were deported, according to the ACLU, during the secretive pilot project in 2017.
Garcia appealed his clients’ case to the 5th Circuit Court of Appeals in New Orleans, but the three judges ruled unanimously in May 2019 that the family separations had not deprived his clients of a fair trial. He contacted attorneys in California and offered his help if a case were ever to come up in the 9th Circuit Court of Appeals, which might be more sympathetic to immigrants than the 5th Circuit. If he had to, he would take his cause all the way to the U.S. Supreme Court.
But first he would need the blessing of the parents. Relatives of the deportees, including Ms. Zavala’s daughter, told Garcia that they didn’t want to risk going any further with the case, which might anger the Trump administration and cause ICE to target their families. “Let it go,” the brother of one of his clients told him over the phone. “Otherwise, all of the sacrifice will have been for nothing.”
Stymied at home, Garcia began to think about searching for his former clients in El Salvador and Honduras. Jayne asked him what he hoped to accomplish by finding them. “I don’t know,” he said. “Maybe I’m going to apologize. Because I promised them that I would help them, and I couldn’t.”
He would go to Central America not as Sergio Garcia, the public defender, but as a fellow human being seeking absolution. But as Garcia made plans, tracking down the whereabouts of the parents, the pandemic hit. He spent days going through old records and speaking with relatives in the U.S. until he tracked down a phone number for Ms. Zavala in her small town in Honduras. He had never had a chance to look her in the eye and apologize for failing her. He hoped she wouldn’t resent him or think he had lied to her. It took him days to gather the courage to finally dial her.
Ms. Zavala relied on a neighbor’s phone, since she couldn’t afford one of her own. At first the neighbor seemed suspicious of Garcia, making excuses for why Ms. Zavala couldn’t come to the phone. But after several tries, she finally answered.
“Do you remember me?” he asked, tentatively.
“Claro, abogado,” she said.
“Do you have any news of your grandson?”
“I speak with him on the phone every week. He is with my daughter in New York,” she said. “Sometimes he cries and says, ‘Mamí, when will I see you again?’ I try not to cry. I remind him that God is with us.”
“And how are you?” he asked.
“I live all alone,” she said. “Sometimes I get depressed.”
“What happened to you made me very sad,” Garcia said. “It broke my heart.”
“Me too,” she said.
“I’m sorry I couldn’t accomplish what I had promised you,” Garcia said.
“I know you tried everything you could,” she said, consoling him. “We appreciate what you did for us.”
“I haven’t forgotten about you,” Garcia said. “I won’t forget.”