The El Paso Experiment

A public defender's lonely fight against family separation.

Sergio Garcia heard the rattling of their leg restraints before he caught sight of his clients being led by a U.S. marshal into the magistrate’s courtroom. The three women and two men, dressed in drab blue county jail uniforms, appeared dazed and frightened as they filed into the brightly lit, nearly empty courtroom.

Garcia, a federal public defender for the Western District of Texas in El Paso, sat down at the table reserved for defense counsel. At age 55, his short black hair was flecked with gray and thin lines of worry formed around his eyes as he placed the stack of case files next to him on the table. He worked in the criminal justice system. He wasn’t an immigration attorney, but here he was representing five families who had requested asylum, and now, he believed, the prosecutors were pressuring his clients to plead guilty.

Natividad Zavala, a 61-year-old grandmother from Honduras, looked like she might faint. Nearly five weeks earlier, a Border Patrol agent had taken her 7-year-old grandson, Alexander, away from her in the middle of the night as they’d slept. She’d heard nothing of him since. It was as if the boy didn’t exist, as far as the U.S. government was concerned.

The other four parents from El Salvador and Honduras — Elba Luz Dominguez, Jose Francis Yanes, Blanca Nieve Vasquez, and Maynor Alonso Claudino — had similar stories: After crossing the river and requesting asylum, they had been criminally charged with illegal entry, known as 1325 in the criminal statute and punishable by up to six months in jail. Their children, ages 7 to 16, were taken from them by Border Patrol shortly after they were detained.

Photos showing where Dominguez, Yanes, Vasquez, Claudino, and Zavala, were apprehended by the United States Border Patrol in El Paso, Texas. October 29, 2020.Image: Justin Hamel for The Intercept

Garcia had been a federal public defender for five years, but he’d never heard of parents who were traveling with their children and had no prior criminal convictions being arrested for illegal entry after requesting asylum. Since his clients were sent to jail rather than to an asylum officer, which would have been the normal procedure under U.S. asylum law, their children were taken into custody and sent away to government youth shelters — they didn’t know where. It was such an unusual case that U.S. Magistrate Judge Miguel Torres had asked the federal defender’s office to get involved. And Garcia had been assigned to help the families.

Immediately, he’d advised his clients not to plead guilty, because they’d done nothing wrong. Requesting asylum at the border wasn’t illegal. But now the government was acting as if they’d never requested help, as if they had no protections under decades-old asylum law and international treaties. The families had crossed between ports of entry, which the prosecutors claimed was a criminal offense — even though U.S. law makes no distinction as to where a person can or cannot request asylum at the border. As he watched the shackled parents and Ms. Zavala, a grandmother, awkwardly sit down in a row of wooden chairs behind the prosecutors’ table, Garcia felt his frustration mounting. If his clients accepted the plea deal, they would most likely be deported without their children.

Garcia stood up to address the judge. “If we allow the government to use these 1325 charges, they are rendering asylum and refugee law meaningless,” he said. “Because these clients are going to plead guilty, they are going to be deported, and they,” he said, looking at the three prosecutors sitting at the table across from him, “are not guaranteeing to keep track of their children. We don’t know what’s going to happen. And that is terminating parental rights. In this country even the most serious criminals have a right to due process when terminating parental rights.”

Public Defender Sergio Garcia outside of the El Paso County Detention Facility in downtown El Paso, Texas. October 29, 2020.Image: Justin Hamel for The Intercept

About the reporter

Melissa del Bosque

Melissa del Bosque

Melissa del Bosque is a former Lannan reporting fellow with Type Investigations.