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El Paso Five case a road test for prosecuting migrant parents

Demonstrators march to a detention facility in El Paso, Texas, on June 21, where large tent cities were erected to house migrant children separated from their parents. Photo by Larry W. Smith/EPA-EFE

EL PASO, Texas, July 13 (UPI) -- Months before the Trump administration began prosecuting migrant parents and separating them from their children for illegally crossing the Mexican border, government attorneys road tested the practice in El Paso, Texas, between July and November 2017.

By late October, the government's prosecution strategy had hit a roadblock. Five Central American parents, their defense lawyer and even federal Magistrate Judge Miguel Torres demanded government attorneys provide information about the children Border Patrol agents separated from their parents.

To recover their children, the five Central Americans -- four parents and one grandparent from Honduras and El Salvador -- refused to plead guilty. Instead, the El Paso Five wanted Sergio Garcia, their federal public defender, to take their case to trial.

Ultimately, the group failed and they were convicted. But their criminal trial offers a rare glimpse of the government lawyers' approach, that when applied to the entire border caused an international controversy, forcing the Trump administration to reverse course.

Prosecutor defends splitting up families

Special Assistant U.S. Attorney Douglas Rennie defended the government's prosecution of the El Paso Five. Officials later used Rennie's arguments in its broader defense of "zero tolerance" prosecutions up and down the border. But in El Paso in October, this was their trial run in court.

Court documents show Rennie urged Torres not to dismiss the charges against the El Paso Five and proceed to trial. Rennie argued the parents could not deny improper entry to the United States: They crossed the border without documents in a place other than a lawful port of entry.

Rennie chided Torres for his "expression of empathy for the defendants' circumstances" at their initial appearance in late October. The prosecutor accused the judge of "inartful" speaking when Torres advised the El Paso Five their defense lawyer could help locate their children.

"Their ability to obtain that information is contingent on following the Office of Refugee Resettlement's policies," Rennie wrote in a court filing.

The prosecutor suggested the parents and children might not be related. The El Paso Five "claimed" the children as theirs, Rennie wrote, and they would have to prove their relationship according to established government procedures.

Rennie washed his hands of the government's legal obligation under the 1997 Flores settlement to put parents in contact with their children. U.S. prosecutors argued children separated from their parents and housed in civil immigration detention were "tangential" to the adults' criminal case.

The children were not the court's concern. Its jurisdiction did not "extend to the defendants' access to information concerning the juveniles with whom they were apprehended," Rennie wrote.

Rennie sidelined looking at the El Paso Five as immigrant parents requiring different treatment.

"The defendants' difficulty obtaining information about the juveniles is not different from the circumstances faced by any other detained arrestee facing criminal charges who has their liberty restricted," Rennie wrote, suggesting all criminally charged parents are by law removed from their children.

Parents threatened with smuggling charges

Rennie also implied the El Paso Five were lucky only to be charged with a misdemeanor. Their admission to Torres of bringing a child over the border was enough to bring a more serious charge with lengthy prison time. The El Paso Five's "conduct satisfies the elements of the felony offense of alien smuggling," Rennie wrote in a footnote to the court.

The need to deter alien smuggling, particularly of children, sustained the government's interest in prosecuting the El Paso Five, Rennie told the court. If the court dismissed the case, adults accompanied by minors who they claimed as their children would escape prosecution. Rennie wrote the court might create a loophole for traffickers, a "bad policy that could endanger more children."

When Torres responded to Rennie's arguments, he pointed out prosecutors did not bring alien-smuggling charges against the five parents.

But the judge refused to dismiss the charges against the El Paso Five for the misdemeanor crime of improper entry. The parents went to trial and were convicted, sentenced to time served, and did not find out about their children's whereabouts until later.

Family separations: From El Paso to the entire border

The trial occurred months before the Trump administration began separating parents and children along the entire southern border. The trial shows federal prosecutors tried quietly to road test the new policy in El Paso.

The pilot ended when the five went to trial, but senior border enforcement and immigration officials used its results to justify extending prosecutions to the entire border. In an April memo obtained by The Washington Post, border officials communicated the pilot project's results to Secretary of Homeland Security Kirstjen Nilsen.

Prosecuting migrant parents and separating children resulted in a 64 percent drop in unlawful crossings in the El Paso sector, officials reported. The sector covers all of New Mexico and much of west Texas.

On May 7, U.S. Attorney General Jeff Sessions and Nilsen announced the border-wide policy. Sessions' words echoed Rennie's arguments: "If you're smuggling a child, then we're going to prosecute you, and that child will be separated from you, probably, as required by law."

Few, if any, migrant parents have faced felony alien-smuggling charges. With "zero tolerance," prosecutors opted instead for the misdemeanor criminal charge of improper entry to the United States by an alien, pursuing the prosecutions strategy from El Paso.

Lack of information about children separated from parents later became a defining feature of the government's approach to "zero tolerance."

In San Diego last month, federal Judge Dana Sabraw disagreed with the Justice Department's approach and ordered all parents and children to be reunited, effectively terminating the legality of the separations.

DHS said 2,000 to 3,000 children were separated from their parents over six weeks, which provoked widespread condemnation.
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