Seated in front of Ormsby were 71 disheveled immigrants caught illegally crossing the Rio Grande. The number of defendants has soared amid President Trump’s crackdown on a new surge of border crossers. But the mass hearing was remarkable less for its size than for who it included: parents.
For the first time, federal courtrooms here and across the Southwest are being flooded with distraught mothers and fathers who have been charged with misdemeanor illegal entry and separated from their children — a shift in policy touted by the administration as a way to stop families from trying to reach the United States but decried by critics as traumatizing and inhumane. Last month a Honduran father separated from his wife and 3-year-old son killed himself in a Texas jail cell, The Washington Post reported Saturday.
In McAllen alone, 415 children had been stripped from their parents between May 21 and June 5, according to federal public defenders.
Now, on the morning of June 6, 14 more parents from Central America were facing an agonizing choice with uncertain consequences. They could plead guilty in the hope of speeding up their reunification with their children, but risk damaging their chances of receiving asylum in the United States. Or they could plead innocent and head to trial, a process that could take days or weeks and prolong their separation from their kids.
Seven miles from Mexico and surrounded by brushlands that are home to the border’s busiest smuggling routes, the Bentsen Tower federal courthouse has become one of the anguished epicenters of family separation.
On Wednesday morning, the evidence of that was the tears on the parents’ faces. Many clutched fliers with a phone number they could call to try to get their kids back from the increasingly crowded federal shelters where they are being housed.
As Allison Moody, a special assistant U.S. attorney, read the charges against the immigrants, they stood, one by one, in front of the magistrate to plead.
“Culpable,” they said, again and again, using the Spanish word for guilty. By 10:30, the count was 56 culpables and running.
But when it came time for number 57, Diego Nicolas-Gaspar hesitated.
The Guatemalan fleeing violence and poverty had rafted across the Rio Grande a day earlier with his son, only to have the 11-year-old taken from him by Border Patrol agents. Now he feared that if he pleaded guilty, he’d be deported without the boy.
“No culpable,” he said uncertainly.
As Ormsby began to set a trial date for the following week, the immigrant’s attorney interjected.
“Your honor, he’s been separated from his son,” said assistant federal public defender Azalea Aleman-Bendiks. “We would prefer to have him not continued in custody because he is traveling with his 11-year-old son. He’s been separated from him and if he doesn’t get back today, the chances of him being reunited with him go down.”
As she consulted with Nicolas-Gaspar, dressed in the same dirt-caked tennis shoes and mud-stained shirt in which he’d been detained, the immigrant in his late 20s began to sob. She told him the best chance he had of seeing his son soon was to plead guilty.
“Culpable,” he told the judge when court resumed minutes later. “Culpable. Culpable.”
When it was time for sentencing, Aleman-Bendiks made a point of telling the stories of the 14 defendants who had been separated from their children.
“This is a tragedy that’s happening right in front of this court,” she told Ormsby.
Ormsby, who has sentenced thousands of migrants for illegally crossing the border during his two decades as a magistrate, politely thanked her for the “impassioned” statement. Then he turned to the parents.
“I trust and hope that you will be reunited with your family members,” he told them. “But I also hope you understand that the reason there was a separation is that you violated the laws here of the United States.”
By day’s end, he would sentence more than 100 people, including 28 parents. Most would receive the lightest punishment possible — time served — before they were handed over to Immigration and Customs Enforcement.
The frenzied pace of the proceedings was no accident. As Moody emerged from court in the afternoon, she and a colleague exchanged a high-five.
“I said I’d get done by 3:20,” the prosecutor said, checking the time to see she was only nine minutes behind schedule.
Aleman-Bendiks had arrived at the tall, dark glass courthouse shortly after dawn that morning. After preparing for an hour in an office decorated with her diplomas from Rice University and Harvard Law, the 52-year-old federal public defender headed upstairs to the courtroom, where the air smelled like sweat and the 71 immigrants were already seated. She was representing all of them.
“How many of you were traveling with children?” she asked in Spanish. More than a dozen hands shot up.
“How did they separate you?” she said to a Guatemalan woman whose 8-year-old daughter was taken away.
“How long since you saw her?” she asked a Honduran separated from her 6-year-old girl.
“They just took them?” she said to a Salvadoran whose two daughters were gone.
This is what Trump’s zero-tolerance policy looked like to Aleman-Bendiks and scores of other federal public defenders along the border.
Administration officials had been discussing the idea of separating parents and children for more than a year when Attorney General Jeff Sessions made it official.
“If you’re smuggling a child, then we’re going to prosecute you, and that child will be separated from you,” he warned on May 7. “If you don’t want your child to be separated, then don’t bring him across the border illegally.”
Moody declined to discuss her work prosecuting parents for illegal entry in McAllen. A spokeswoman for the Justice Department’s Southern District of Texas said her office could not say how many parents had been separated from their children because of the zero-tolerance policy.
“DOJ does not keep statistics on whether or not someone is a parent,” said Angela Dodge, adding that prosecutors had “no way of knowing” when someone was a parent and that “it’s not relevant when prosecuting a case.”
Family separations were rare under the Bush and Obama administrations.
“We didn’t even used to ask about it,” said Aleman-Bendiks, who has worked as a federal defender for 15 years. Now, depending on the day, they make up as many as half of her illegal entry cases.
Some parents tell Aleman-Bendiks that their children were taken immediately at the border. Others say the separation occurred at the chilly processing facilities immigrants call “hieleras,” or ice boxes.
“All these parents want to know is when are they getting their kids back?” Aleman-Bendiks said.
The number of families trying to reach the United States soared by 435 percent in May, compared to a year ago, according to the Department of Homeland Security. They’re part of a surge of border crossers that Trump is determined to stop. More than 50,000 undocumented immigrants were arrested in May for the third month in a row.
Though they didn’t target families, Trump’s predecessors also ramped up illegal entry prosecutions in response to surges.
But by late May, the number of illegal entry cases in South Texas had soared to about 1,000 per week, according to Marjorie A. Meyers, the federal public defender for the district. That is on par with the peak of the last surge in 2014, even though half as many immigrants are being detained in the Rio Grande Valley, records show.
Border Patrol told Meyers the number of people charged could rise another 50 percent.
“They are prosecuting everybody they can,” she said.
The explosion of cases has already started to tax the federal courts. In Brownsville, like McAllen, magistrates are sentencing packed rooms of defendants in the morning and again in the afternoon.
“People involved with the court system are concerned about what this is doing to the court dockets, what it is doing to the U.S. marshals’ ability to provide space for the heightened levels of detentions,” said Rep. Filemon Vela, the Democrat who represents a slice of the Rio Grande Valley that stretches from McAllen east to Brownsville, where the federal courthouse is named after his father.
Meyers said she was trying to find more assistant federal public defenders who could speak Spanish. And Sessions recently said he is sending 35 prosecutors to the border to assist with the prosecutions, including 15 to Texas.
For Meyers, the challenge is not only logistics but the wrenching stories of families being torn apart. In a conference call with her assistant federal public defenders last month, she said she told them to force judges to confront the issue.
“We think it’s important for the court and everybody to hear what’s happening,” she said.
On May 22, Aleman-Bendiks asked Ormsby in court to pressure the government to provide more information about the fate of families being separated. On May 31, she and her boss, Kyle B. Welch, met with ten officials from ICE, Border Patrol, the Justice Department and the Office of Refugee Resettlement, which cares for the children separated from their parents as well as “unaccompanied minors” who arrived in the United States on their own.
“The idea was to try and give us a sense of what’s happening here,” Aleman-Bendiks said, but the meeting delivered little clear information.
One Border Patrol official did say agents in and around McAllen had a policy of not separating children under 5 from their parents — although that policy does not appear to be in place elsewhere along the border. Children as young as 18 months have been taken from their parents.
On Wednesday, Aleman-Bendiks asked Ormsby to order the government to hand over lists of children separated from their parents so that immigration attorneys could ensure they were reunited.
“My concern is that there are lost children here in the system,” she said. “We are hearing it every day, your honor, and it’s not right.”
Ormsby noted that “children are not within the jurisdiction of this court. These people are here because they have a criminal case here.”
He invited her to prepare a brief on how he could order the government to provide lists. “But on its face,” he added, “it seems questionable to me that the court would have the authority to do that.”
'They never came back'
Juana Francisca Bonilla de Canjura wiped tears from her face in the courtroom as she listened to the proceedings through a translation headset. In her hands, she clutched the passports of her two daughters: Ingrid, 10, and Fatima, 12. They had come together from El Salvador, then were separated at a hielera. The bright blue documents were her only way of getting them back.
“I don’t have any idea where they are,” she’d told a Post reporter shortly before the hearing began. “Nobody knows anything. Nobody says anything — just lies. They said they were taking them for questioning, and we were only going to be apart for a moment. But they never came back.”
“What pains me is the thought they are suffering without me,” she said. As she spoke, a Border Patrol agent in green fatigues cut off the conversation.
“You can’t ask them about their families,” the agent told the reporter. “They are in my custody.”
The proceedings were at once monotonous and momentous. Many immigrants fidgeted until it was their turn to enter a plea. Others stared at their shoes — the laces had been removed to keep them from strangling themselves.
In the afternoon, a Honduran woman interrupted her arraignment to say she had a question.
Norma Leticia Ulloa-Montoya had rafted across the Rio Grande a day earlier with her two sons, ages 6 and 9, who were then taken by Border Patrol agents.
“If one declares herself guilty,” she asked, “does she still have a right to stay in this country with her babies?”
Ormsby said that decision wasn’t up to him.
“You have been charged with a criminal charge, a misdemeanor, alleging you entered the United States illegally. What we are doing is addressing that criminal charge against you,” he said. “Once this is resolved, you can go back to the immigration authorities and request asylum.”
Welch, the federal public defender, agreed. “My understanding is that a plea would not adversely affect any claim she might have,” he said. That view was echoed by Dodge, the Justice Department spokeswoman.
But immigration advocates aren’t so sure. “They are now convicted of a crime,” said Leah Chavla of the Women’s Refugee Commission. “Under U.S. law, that could be a bar to them receiving asylum, so they’d have to get a waiver.”
In the end, those complications mattered less to the parents in Ormsby’s courtroom than seeing their kids again. All of them pleaded guilty to illegally crossing the border and were sentenced to time served.
“Obviously, in each of your situations, you committed a crime and so the government was within their rights to pursue that,” the magistrate said. “Whether or not they should exercise their discretion that way is something that is obviously being debated.”
“As someone who has children myself,” he added, “it would be a terrible situation to be separated under those conditions.”
Then the guards put handcuffs back on the parents and led them out of the courtroom, where their future remained as unclear as the location of their children.