In the weeks since President Donald Trump's now-rescinded family separation policy created chaos and confusion across the country, the messages from his administration and prominent Republican members of Congress have been clear: Seek asylum legally at official ports of entry, and you won't lose your kids. There may be armed Customs and Border Protection agents standing at the halfway points of bridges — but simply wait a few days, declare to them that you are seeking asylum, and you'll get a fair shake.
A recent Department of Homeland Security news release says it's a "myth" that the agency "separates families who entered at the ports of entry and who are seeking asylum – even though they have not broken the law." The release also says the agency "is [not] turning away asylum seekers at ports of entry."
But there's ample evidence to suggest otherwise. Court records and individual cases discovered by The Texas Tribune indicate that a number of asylum-seekers who came to international bridges in Texas and California were separated from their children anyway — or were not able to cross the bridge at all after encountering armed Customs and Border Protection agents on the bridge. And experts argue there's no basis to the government's claim that there aren't enough resources to process asylum-seekers.
On top of that, experts say a quirk of U.S. immigration law might actually put people who try to seek asylum at the official ports of entry at a disadvantage to those who cross the border in other ways — such as wading across the Rio Grande. That's because unlike people who cross the border illegally, asylum-seekers who come to ports of entry are not eligible to be bonded out of immigration detention by a judge; instead, officials with Immigration and Customs Enforcement (ICE) have total discretion over whether they can be released.
This week Jennifer Harbury, an immigration lawyer based in the Rio Grande Valley, told the Tribune that she saw Mexican immigration officials standing at the foot of the bridge between Reynosa, Mexico, and McAllen and stopping people before they could begin to cross.
"There's two big guys in full dress standing right in front of the turnstile," Harbury said. "They'll walk up to you and ... they just say, papers, please?"
It's not clear whether this is a widespread practice. Harbury said the immigration officials she saw wanted migrants to prove they had entered Mexico legally. If they couldn't, she said, "they risk getting grabbed by the Mexican immigration people and deported."
Family separation said to go "beyond its lawful reach"
At a recent roundtable in Weslaco, Texas’ Republican U.S. Sens. John Cornyn and Ted Cruz both expressed keen interest in what was happening at America's international bridges. Cornyn specifically asked federal officials to confirm that asylum-seekers who came to the bridges were not doing anything illegal. The following day, he tweeted: "Asylum seekers that cross at ports of entry are not prosecuted" for entering the U.S. illegally — which should mean that they would not have been separated from their children.
But the Hope Border Institute has documented cases of family separation at ports of entry that go back as far as December 2016 — just after Trump's election. At that time, a woman named Eva, who said she faced death threats despite being in a witness protection program in Honduras, had asked for asylum with her husband and son at an El Paso port of entry. According to a reportreleased by the Institute in January, she "was immediately detained and separated from her family" and remained in detention more than a year later.
Last September, Maria Vandelice de Bastos and her 16-year-old disabled grandson traveled from Brazil, were separated after arriving at the Santa Teresa Port of Entry in New Mexico and have not seen each other since, the Tribune reported recently. In May, a Guatemalan woman identified as M.G.U. showed up at a California port of entry with her three sons — ages 2, 6 and 13 — and even though she convinced officials that she had a credible fear of returning to Guatemala, her kids were taken away about two weeks later, according to a lawsuit filed by the advocacy group Texas RioGrande Legal Aid in June.
And last November, according to a lawsuit filed by the ACLU, a Congolese woman called Ms. L. and her then-6-year-old daughter were separated at a California port of entry after seeking asylum from religious persecution.
U.S. District Judge Dana Sabraw criticized the practice in a recent ruling on that lawsuit. "The parent has committed no crime," she pointed out, adding, "Ms. L. is an example of this family separation practice expanding beyond its lawful reach, and she is not alone." She went on to order the government to reunite separated families in the coming weeks.
It's not clear why these separations are happening, since none of the parents appear to have been prosecuted for entering the U.S. illegally. In the case of Ms. L., immigration officials initially claimed that they weren't sure that she was actually the girl's mother, the lawsuit documents say — which is another reason the Department of Homeland Security says it might decide to separate families who seek asylum at ports of entry.
But Sabraw rejected the government's argument: "Absent a finding the parent is unfit or presents a danger to the child, it is unclear why separation of Ms. L. [and her daughter] ... would be necessary."
An ICE official said on Thursday that the agency does not release information on juveniles and referred a Tribune reporter to Customs and Border Protection. A CBP spokesman pointed the reporter to the news release the agency put out in June.
Cornyn's office did not respond to requests for comment. A Cruz staffer referred reporters to the comments he made at the Weslaco roundtable, in which he encouraged families to seek asylum the “right way" by going to ports of entry.
A disadvantage in immigration detention
As the Trump administration seeks to detain more and more people while their asylum cases are pending — even if they've never been charged with a criminal offense in the U.S. — asylum-seekers at ports of entry may actually be worse off than those who cross a different way.
If people end up in immigration detention after they cross the border illegally between ports of entry — typically by crossing the Rio Grande or walking through desert — then ICE can set a bond for them (that's the price they must pay for their release). Those detainees can challenge the bond before an immigration judge, and the judge can agree to release them with a lower bond or with no bond at all — although reports indicate it's become harder for people to get released from immigration detention on bond.
But for those who are detained after seeking asylum at a port of entry, bond is generally not an option, and an immigration judge can't release them. Once they're in immigration detention, they are only eligible for what's called "parole" — temporary release from immigration detention — and that decision is up to ICE.
Perez-Bustillo, of the Hope Border Institute, said that puts asylum-seekers who tried to cross the border the "right" way at a disadvantage. "When it comes to discretion of ICE ... you're totally helpless," he said.
A 2009 directive by the Obama administration gave immigration officials wide latitude to release people from detention on parole. But in 2017, the Trump administration told officials to use parole "sparingly"; a lawsuit filed by the ACLU over the issue claims that parole rates have since plummeted from 90 percent to close to zero.
This week, a federal judge in Washington ordered the government to review parole decisions for a number of immigrant detainees who have been in detention for months or years. The government must release those detainees if they're moving forward with their asylum cases and if they're not a flight risk or a danger to the community, the ruling stated. But the decision only applies to five U.S. immigration offices across the country. El Paso is one of them, but Harlingen, located in the Rio Grande Valley, is not.
Meanwhile, the longer people remain in immigration detention, the harder it is for them to truly pursue an asylum case. Making phone calls can be expensive, and detainees usually don't have internet, so finding a lawyer is nearly impossible. And even if they manage to find one, they're still at a major disadvantage.
Ruby Powers, an immigration attorney based in Houston who recently interviewed about a dozen people at the Port Isabel detention center, said she prefers to meet with asylum-seeking clients multiple times. But that's often not a luxury she can afford for clients in detention because visiting them is so time-consuming. She said she waited two hours in the Port Isabel facility just to get access to a room for the interviews she did recently.
Experts cast doubt on "come back later" strategy
Trump administration officials continue encouraging asylum-seekers to go to ports of entry and insist that no one is being turned away. "We are telling these people, look, we are full today ... come back later," explained David Higgerson, a field director for CBP, during last month's roundtable discussion in Weslaco.
He added that the agency has limited capacity and resources. A CBP agent might have to make a calculation such as, "I can probably handle a family of six. I cannot handle a family of 10," he said.
But Harbury said she's represented multiple clients who were turned away at the port of entry outright. Not long after Trump was inaugurated in early 2017, Harbury said a woman from Guatemala was told to turn back at a Texas port of entry and later reported that she was kidnapped near the foot of the bridge on the Mexican side.
The cartel members who kidnapped her demanded ransom, and the woman's family took weeks to scrape together the money, Harbury said. When the cartel released her and she turned up at a Reynosa shelter, the staff called Harbury, who said she met the woman there and physically walked her across the bridge into the U.S.
Lindsay M. Harris, co-director of the Immigration and Human Rights clinic at the University of the District of Columbia's law school, said she doesn't buy the argument that CBP doesn't have the capacity to process all the asylum-seekers who show up at ports of entry.
"If you just look at the manpower that CBP has ... it's just not a credible articulation of what's going on," she said. She also pointed out that the number of asylum-seekers has not suddenly skyrocketed since Trump's election.
In the federal fiscal year before Trump was elected, which ended in September 2016, the government received around 94,000 “credible fear claims” — a key step toward making an asylum request — and 24,500 of those were presented at ports of entry. The following year that number dropped to about 78,600, with 24,400 of them presented at ports of entry.
On Monday, Selma Yznaga, an associate professor at the University of Texas – Rio Grande Valley, said she spent four hours on the Mexican side of the bridge between Matamoros and Brownsville. She said 13 asylum-seekers — three Cubans, four Hondurans and six people from African countries — were blocked from crossing the halfway point of the bridge by CBP officials.
"They're quite desperate," she said. "It helps just to be there, to talk to them, to try to lift their spirits."
Two lawyers accompanied her, along with a humanitarian group from Matamoros, she said. The lawyers took down the asylum-seekers' contact information so they could follow up once they were able to cross into the U.S.
Yznaga said she has taken several such trips in the last two months.
"The rules keep changing," she said. At first, she felt she needed to explain to parents that they might be separated from their children. Now that Trump has signed an executive order that is supposed to have ended the practice, she now tells asylum-seekers: "Okay, today if you want to walk across, you won't be separated from your children, but you'll all be detained together. You may be deported after 20 days."
While Yznaga stood on the bridge that Monday afternoon, CBP agents let two unaccompanied teenagers cross. Early the next morning, she said, she was told everyone else had been allowed through.
Disclosure: The University of Texas – Rio Grande Valley has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.