The Government Relies on False “Evidence” Against Migrants

Laura Peña could see that her 36-year-old client was wasting away. Gaunt and haggard after nearly two months in jail, he ran his fingers through his hair and opened his hands to show her the clumps that were falling out. He was so distraught that his two young children had been taken from him at the border, he could barely speak without weeping.

After Carlos requested political asylum, border and immigration agents had accused him of being a member of the notorious MS-13 gang in El Salvador — a criminal not fit to enter the United States. But as Peña looked at him, she saw none of the typical hallmarks of gang membership: the garish MS-13 tattoos or a criminal record back home. He was the sole caregiver for his 7-year-old son and 11-year-old daughter. He’d even brought an official letter from El Salvador’s Justice Ministry certifying that he’d never been in jail. Something else about his case bothered her, too: She’d been peppering the government’s lawyers with phone calls and emails for weeks and they’d yet to reveal any evidence to back up their accusation.

Unlike most attorneys working pro bono to reunite families, Peña was familiar with MS-13, because she’d pursued the deportation of gang members as a trial attorney for Immigration and Customs Enforcement. She understood how the system worked, because she’d been a part of it. Her long tumble of curly hair, which makes her look younger than her 37 years, is paired with a forthright-bordering-on-blunt manner of speaking forged from her years as a prosecutor on the front line of the immigration debate. She was empathetic toward the plight of clients like Carlos, whose last name is not being used for his protection. But she was also unwilling to give any of them false hope. If Carlos was a gang member, his chance for asylum was zero.

“There has to be a mistake,” Carlos insisted that December day from behind the scratched plexiglass wall in the visitor’s room at the jail. “Please help me.” Looking at him, Peña wanted to help. But the system she’d once known, as flawed as it was, had turned into a black box she no longer understood, with an ever-shifting array of rules and policies that granted untold discretion to the government. She couldn’t even get ICE attorneys to comply with a fundamental tenet of a fair system: providing proof of their case, evidence they could fight against.

To Peña and her colleagues, cases like Carlos’ signaled a troubling new era. Years of legal precedent had been swept away by Trump administration efforts to push through evermore harsh immigration policies like family separation. Then, when the courts pushed back and the policies were publicly rescinded, the administration discovered new ways to quietly continue them. She and her colleagues were counting hundreds of new cases of family separation along the border that occurred after the “zero tolerance” policy supposedly ended in June 2018. But no one could track what the government was doing with every case.

Now here was Carlos, who simply looked like a grief-stricken dad. Peña had been skeptical of him at first. When they’d met in November 2018, all she knew was that he was considered such a threat that ICE and Customs and Border Protection had put him in the wing of the Laredo, Texas, jail designated for violent offenders. She’d used her ICE training to poke at his story, searching for inconsistencies, signs he was lying. “Trust but verify” was her guiding principle. She’d gone over his background with him multiple times, his story about why he’d fled El Salvador and his former life as a warehouse manager for an architectural design company. She’d made him retrace his story over and over until she was satisfied.

As a pro bono attorney working for the nonprofit legal group Texas Civil Rights Project, Peña had a growing stack of cases on her desk. She’d spent the last six months monitoring “zero tolerance” prosecutions at the courthouse, searching for unlawful separations. Her mandate was simply to reunify Carlos with his children. He was luckier than most; he had her asking questions on his behalf. The majority of migrants who are arrested at the border never see a lawyer, let alone understand how to fight the allegations against them. Carlos was one drop in a river of cases.

But something about his case made her want to dig deeper. What wasn’t the government telling them?

Raised in Harlingen, Texas, just a short drive from Mexico, Peña went to school with friends who were undocumented and friends whose parents worked for the Border Patrol and Immigration and Naturalization Services. She grew up steeped in the culture from both sides of the border. As soon as she graduated from high school, she left the border, earning a place at the prestigious Wellesley College and then landing a job in the State Department, where she focused on security and human rights in Central America.

But Peña longed to follow in her father’s footsteps and become a lawyer, so she took night classes at Georgetown Law. After graduating, desperate for courtroom experience, she learned that ICE was looking for trial attorneys. Peña wasn’t sure she was up to the task of deporting people. Most of her family and the few friends she told were appalled at the notion. And she kept her plans secret from friends in the immigrant advocacy world, fearing they would never speak to her again. But her father, who had also been a struggling new attorney once, understood her dilemma better than most. “Do what you need to do,” he counseled her. “Don’t worry about what others think.” A mentor, who was also an immigration attorney, encouraged her to take the job and try to make ICE a more humane agency from within. “We need people of your mindset working on the government’s side,” she told Peña.

Peña was hired in 2014 and moved to Los Angeles. It was the start of President Barack Obama’s mandate that ICE attorneys exercise their prosecutorial discretion in the courtroom. This meant that Peña could look at each case on its own merit and focus on deporting criminals while giving families who qualified for asylum or legal residency an option to stay. She says she tried to wield the incredible power she’d been granted with fairness and careful consideration, which made her proud. But her idealism was short-lived. Case by case, she said, she gradually lost her sense that she could be a positive force in an immigration system already in free fall. One day in court, she was asked to handle the case of a 6-month-old baby who was scheduled for deportation. Somewhere in the overwhelmed system, the baby’s case had been separated from that of his mother’s, who sat in the courtroom weeping. Furious, the judge said such a slip up could result in a 6-month-old being deported without his mother. Peña was horrified and embarrassed. She tied the two case folders together with a rubber band and wrote “family unit” at the top in red pen — it wasn’t the first time that ICE’s computer system had failed her — and assured the judge they wouldn’t be separated again.

Then there was one particularly devastating court hearing, at which she found herself arguing that an African woman who had been brutally raped and attacked by a militia in her home country should not be granted asylum because she had a fraudulent identification paper. As the judge ordered her deportation, the woman had a full-blown panic attack, falling to the ground, beating her chest and wailing, “No! No!” Peña knew she would never forget how the woman had looked up at her with pleading eyes and begged, “Please help me.”

There were other cases, too, each taking a toll, until it just got to be too much. On her worst days, she said, she felt that nothing she’d done, or could do, made a difference. Everything was stacked against the immigrants. Most couldn’t afford to hire an attorney. Few would ever win their cases. She was participating in a system that refused to provide due process. Sometimes she wondered if she’d helped send the African woman to her death. The guilt lingered in the back of her mind.

So she quit. She took a well-paying corporate job in California as a business immigration lawyer, helping companies hire foreign workers. But when family separations made headlines in the summer of 2018, she felt the pull to dive back in, to try and level the odds. She left her lucrative corporate job and, at age 35, moved back in with her parents in South Texas. She took a job as a modestly paid visiting attorney for TCRP, which had an office near the federal courthouse in McAllen, Texas.

She’d been away from the border for nearly 20 years. What she found on her return was chaos: overwhelmed federal public defenders anxiously searching for the children of their clients, who were being prosecuted in criminal court under Trump’s “zero tolerance” policy. Peña and her colleagues at the nonprofit got to work interviewing parents and trying to track down their children who’d been shipped off without paperwork connecting them to their families. She remembered the 6-month-old she’d represented in removal proceedings. Back then, family separations were relatively rare. Now it was official policy with no plan in place to reunify the families.

***

It had taken her more than a week to locate Carlos’ children. She found them in a government shelter outside Corpus Christi, Texas, a two-hour drive from Laredo. She spent an additional two weeks negotiating with officials from ICE and the Department of Health and Human Services, which oversees the children’s shelters, to allow a phone call between Carlos and his kids. The phone call had alleviated some of his anxiety, but it had also been agonizing. His 11-year-old daughter had cried throughout and begged him to come and get them. His estranged wife, who is also undocumented and lives in Washington state, had applied for custody. But ICE needed to conduct a background check and take her fingerprints before the children could be released.

Carlos’ wife had emailed Peña a photo of Carlos with his two children, all sporting big grins. They looked so happy together. Maybe it was the photograph, or the rapport she’d developed with him, or the gang accusation based on some mysterious (and she believed false) evidence, but Peña believed he deserved another chance.

Without the accusation, Carlos and his children would likely have been processed like other asylum-seekers and released with a court date before a judge or would have been detained together at a family shelter. Now ICE could quickly deport him.

She would have to take on his asylum case herself, but she couldn’t do it alone. She’d need to persuade other attorneys — from firms with deep pockets — to volunteer to join the case. It also meant putting her reputation at risk if she was wrong about Carlos. Luckily, a number of such firms had stepped forward that summer to offer assistance to the small nonprofits on the front lines fighting family separation.

Christmas was drawing near by the time of her visit with Carlos when he, emaciated in his red prison jumpsuit, showed her the clumps of hair that were falling out. The four-hour drive from her parents’ home in Brownsville to the Laredo jail was starting to become routine. Every time her mother’s old Nissan pickup truck, which had already surpassed 150,000 miles, sputtered and rattled on the highway, she’d turn up Spanish pop music to drown out the noise.

That day Carlos was a bundle of fears: of never seeing his children again, of the wrath of the gang members back in El Salvador who’d threatened to kill his family when he couldn’t meet their extortion demands. In their eyes, he told her, he had disobeyed their authority by fleeing the country, which was punishable by death.

“We only came to this country because we had no other choice,” she said Carlos told her, shouting to be heard through the plexiglass barrier because the jail phones were out of order again. “They threatened to kill my kids.”

“I believe you,” Peña told him, pressing her hand firmly against the plexiglass. “What’s been done to you is a grave injustice. And I’m here, and I’m going to help you.”

Her colleagues at TCRP quickly agreed that Carlos’ case was egregious enough to warrant their limited time and resources if she could persuade a larger firm to help. They’d heard of other families separated at the border because of vague gang allegations and wanted answers just as badly as she did. That night, she sent out an SOS to a handful of firms more accustomed to representing Fortune 500 companies and politicians than penniless fathers in immigration detention. Attached to her email was the photo of Carlos with his kids. Peña was direct in her plea for help. “Let’s reunify this family before Christmas,” she wrote. “Who’s going to join me?”

***

Christmas passed, then New Year’s. During the day, Peña strategized on Carlos’ case and others at TCRP. At night, she worked in her father’s home office on a report documenting the hundreds of family separations she and her colleagues had uncovered. Many of the separations were, like Carlos’, based on vague allegations of gang membership or an alleged criminal past. A rambunctious blue heeler, which she’d adopted and named Dulce after the dog showed up on her parents’ doorstep, was her only distraction. She missed baby showers and birthdays and ducked out of dinner invitations from a friend who complained that she might as well have stayed in California.

Peña was growing increasingly outraged that Carlos was still in jail, without evidence. To make matters worse, a government shutdown loomed, which meant the attorneys in charge of Carlos’ case were no longer getting back to her.

A corporate law firm, Haynes and Boone, had answered her SOS, volunteering to help pro bono. (Haynes and Boone separately represents ProPublica in a libel case.) The firm had offices around the globe and exactly the kind of legal muscle she needed. A team of lawyers swung into action filing an emergency motion requesting that Carlos’ deportation be stayed and that his asylum claim be reconsidered. The motion also requested that he be reunited with his children while his case went through the legal process. A judge immediately granted the stay, which bought them some time.

But by now the government had ground to a halt, while President Donald Trump bickered with Congress over the building of a border wall. The prosecutor handling Carlos’ case informed Peña that his complaint would go to the back of the line while the Department of Justice worked on emergency cases, such as land condemnations to build the wall. Carlos wouldn’t be deported in the coming days, thanks to the judge’s ruling, but he’d remain in jail for the foreseeable future.

***

Peña was worried about Carlos’ children. They’d now been locked away in a shelter for more than two months — and she worried that each additional day traumatized them further. To put Carlos’ mind at ease, and hers, she drove two hours to the shelter in Driscoll, a rural town outside Corpus Christi, to reassure them that she was doing everything she could to reunify them with their dad.

In the visiting room, the children used the crayons, pens and paper Peña brought to draw pictures for Carlos. His daughter looked painfully thin and sad, while his son tried to put on a brave face to keep his sister from crying. It was hard for Peña not to cry herself as she sat down at the table with them.

“Why can’t we be with our father?” she recalled the girl asking.

“I’m your dad’s lawyer, and we’re working on getting him out of jail,” Peña told her. “There was some confusion when you crossed the border.”

“Oh, they thought he was a gang member,” the girl said matter-of-factly, drawing a careful outline on her piece of paper.

Peña, who doesn’t have children herself, was reminded of how observant they could be. “Do you think your dad is a gang member?” she asked, watching the little girl’s face for a reaction.

“No,” she said, shaking her head. She began to cry. Peña noticed that she had drawn a picture of a family together, holding hands.

“Well, I don’t think so either,” Peña told her. “And that’s why we’re going to fight to get your dad out.”

When Peña left the government shelter, she climbed in to her mother’s old pickup in the parking lot, cranked up the air conditioning and cried.

***

With a pending deportation order, Carlos had run out of options in immigration court. Peña and the Haynes and Boone legal team would have to take his case to federal court. They decided to challenge Carlos’ separation from his children on constitutional grounds in Washington, D.C. Since the wholesale separation of families under Trump had unfolded, a handful of cases had been litigated there on the unconstitutionality of the separations. And more important, U.S. District Judge Paul Friedman had ruled that a woman from El Salvador, whose attorneys said had been falsely accused of being a gang member, should be reunited with her 4-year-old son. They hoped the judge would do the same for Carlos.

The government still hadn’t allowed her to review a key document known as an I-213 form, though she had requested it several times. Similar to a police report, the form would show the various databases Carlos’ name had been run through at the Border Patrol processing facility and what they’d found. The attorneys filed a Freedom of Information request with the Department of Homeland Security requesting Carlos’ file. But from experience, Peña knew it would probably take several months, which was little help to them now.

Her hunch was that the faulty gang intelligence had come from El Salvador. But not knowing from where in El Salvador made it nearly impossible to find an investigator there who could dig up anything useful in helping clear Carlos’ name.

Just when she felt at a dead end, Carlos’ mother and father offered to help. Throughout January, the elderly couple crisscrossed San Salvador, the capital, by bus, visiting one government agency after another with little success. Finally, at the federal court, which holds criminal records and arrest warrants, his parents made a compelling discovery: A man with nearly the same name as their son, with an identical date of birth, had a warrant out for his arrest as a gang member.

Their finding bolstered Peña’s theory that it was a case of mistaken identity. She had Carlos’ mother give a sworn declaration to a lawyer in El Salvador about their finding, then submitted it as evidence in their case.

If the government had made a mistake, there must be a way to clear Carlos’ name. On Feb. 12, she was finally rewarded with a clue. In response to their suit, ICE submitted an affidavit from Mellissa B. Harper, an official with the agency who oversees the family shelters. Harper said she’d reviewed “documents and electronic records” that revealed that Carlos had a documented affiliation with MS-13. “This information was entered into the U.S. government databases by the U.S. Department of State and local U.S. Federal Bureau of Investigation operating in El Salvador.”

As an ICE attorney, Peña was familiar with databases kept by CBP, and she knew that the FBI had been running gang task forces for several years in El Salvador, but why was the State Department entering information about Carlos’ supposed gang membership? Her area of expertise when she’d worked there had been Central America, but she’d never heard of the State Department sharing intelligence with DHS to deport people at the border.

Peña emailed the few contacts she still had at the department, but no one responded. She found only the barest descriptions online. In May 2017, the State Department’s Bureau of International Narcotics and Law Enforcement Affairs had created and funded a new gang intelligence center based in El Salvador. It was called the Grupo Conjunto de Inteligencia Fronteriza, or GCIF, and it worked in tandem with DHS and the FBI’s gang task force in Central America.

There was only a brief mention of the center’s activities in the public record. In January 2018, Richard H. Glenn, acting deputy assistant secretary of state for the bureau, told the House Homeland Security Subcommittee that Salvadoran police officers had been sent to the border in McAllen for eight months in 2017 to “help DHS, state and local law enforcement identify, arrest or deny entry to gang members.”

The 10 police officers became part of a permanent team in El Salvador, which also included five migration officials and two corrections officers who worked alongside U.S. agents from DHS. In less than a year, Glenn said, the program had allowed them to identify “240 MS-13 members not previously known to U.S. law enforcement, and 46 not previously known to Salvadoran authorities.”

Peña wondered whether Carlos was counted among those MS-13 members Glenn had mentioned in his testimony. She knew there was probably no way to confirm it. She noted that the pilot project had taken place at the same Border Patrol station in McAllen where Carlos had been accused of being a gang member, and where his children were taken away. (CBP referred questions to the State Department. A State Department spokesperson would not comment on Carlos specifically but said the program has shown “concrete, positive results and helped identify over 5,000 total subjects with a criminal history.”)

Peña found a photograph online of the DHS secretary at the time, Kirstjen Nielsen, presenting an award to CBP and Salvadoran officers in Washington, D.C., with a dedication that read: “In recognition of dedicated bi-national efforts focused on sharing information to identify Central American gang members attempting to make illegal entry into the United States.”

But what about those who had been falsely accused?

***

Back in Washington, Friedman set Carlos’ hearing for Feb. 21, but the DOJ attorneys balked, saying the case wasn’t a priority for them as they worked through the backlog from the government shutdown. They wanted to postpone the hearing until at least March. They still refused to provide any of the evidence linking Carlos with MS-13 or to even discuss it. At least Peña could take comfort in the fact that his children had finally been released to their mother.

Peña argued that Carlos’ health was deteriorating and that she feared for his mental state if he stayed incarcerated much longer. The government allowed the Feb. 21 hearing to go ahead.

On the morning of the hearing, the team of six lawyers, including Peña, met on the front steps of the federal courthouse. Paloma Ahmadi, a young attorney with Haynes and Boone, would argue the case before the judge along with Peña. Peña and Ahmadi greeted each other warmly — it was the first time they’d met in person.

In the weeks leading up to the hearing, Peña had gotten little sleep. Her report for the TCRP documenting the hundreds of new family separation cases had been released a week earlier, sounding the alarm that the government was still systematically removing children from their parents, often based on dubious evidence that the government never provided. In July 2019, the American Civil Liberties Union would further confirm her findings, documenting that more than 900 parents and children had been separated since Trump had supposedly ended the practice a year earlier.

Ahmadi and Peña laid out the evidence of Carlos’ innocence before the court: the certified letter from the Justice Ministry stating he had no criminal record, a letter from his former employer attesting to his good moral character and the sworn affidavit from Carlos’ mother about her findings in San Salvador.

After they finished, Friedman turned to the two attorneys representing the government. “At this point, the evidence that the plaintiff has presented from El Salvador shows, does it not, that he has no criminal record and no convictions?” he asked.

“That is the evidence that they presented, yes,” said one of the attorneys.

“Do you contest that?” the judge asked.

“No,” she said, pausing. “But he was identified in two separate databases, which prevent him from being housed in a family residential center. … [HHS] have explicit requirements that say a gang affiliation is a bar to housing.”

Peña puzzled over the government’s argument. The lawyers acknowledged that Carlos wasn’t a criminal, then insisted he was a gang member because the government databases said so. But they wouldn’t discuss the nature of the evidence these databases contained. Peña supposed one of the databases was the one the Border Patrol used for background checks. But the other had to be the State Department’s new gang intelligence gathering initiative. That raised a bunch of questions that no one appeared willing to address or even let her ask. Did the center collect biometric evidence, like fingerprints, she wondered, or just names Salvadoran police had turned over? And how were they vetting the information from police? She herself had helped author reports, while working at the State Department, documenting corruption and human rights abuses committed by the police in El Salvador. (The DOJ and ICE did not respond to requests for comment. A State Department spokesperson said that each analyst at the center is vetted as required by law.)

“Your Honor,” Peña said, addressing the judge, “as a former ICE trial attorney, whenever I had evidence in immigration court that questioned whether or not some of the documentation … was inaccurate, we were required as officers of the court to go back and do our due diligence. What I find surprising here is that we don’t even have some of the basic evidence.”

“You asked for it in writing?” Friedman asked.

“Yes, your honor. The government refused to provide any documentation.”

“All right, well file a motion for discovery,” he said, dryly.

She wondered why she had to file a motion in the first place, when the government should have been upfront with her, sharing its evidence against her client. Throughout the hearing, the government prosecutors refused to budge from their stance that Carlos was a threat and should be deported. By the end, Peña felt deflated. She’d taken Carlos’ case all the way to federal court in Washington. Friedman was not going to give them the reunification they had hoped for. The judge reasoned that it had already occurred since the children had been released to their mother. And Carlos, he said, would surely be deported anyway, so what was the point?

***

After the Washington, D.C., hearing, the legal team was in uncharted territory. There was very little legal precedent for reunification in family separation cases, so they would have to be creative. Peña went to visit Carlos in jail to break the news that it had not gone as well as they’d hoped. They would now go back to U.S. Citizenship and Immigration Services, she told him, which handles issues of asylum and citizenship and ask again for another credible fear interview. They would throw themselves at the mercy of the government. If he passed, he could be released on bond. But it would all be up to the government’s discretion. In essence, one giant gamble. Carlos, who vacillated daily between hope and despair, thanked Peña for her efforts. She’d spent so many sleepless nights on this case, and now it felt like they were starting over. Carlos, she feared, was starting to doubt her and the legal team.

Three more weeks passed, then Peña received a call. Against all odds, the government was granting Carlos one more chance at asylum. A few days later, the two sat on separate phone lines — Carlos in Laredo and she in her office at TCRP — talking for three-and-a-half hours with an asylum officer in Houston, going step by step through Carlos’ case. At the end, the officer agreed he had a valid claim.

Now Carlos would be eligible for release on bond, which meant he might finally get out of jail. And he wouldn’t be deported until his asylum case had been heard by a judge. He was finally getting the legal due process that Peña had fought so hard for all these months.

On May 1, six months after he was jailed, Carlos appeared on a video screen in a nearly empty immigration courtroom in San Antonio for his bond hearing. Peña — clasping folders filled with the evidence she’d collected — sat next to another lawyer from Haynes and Boone in front of the judge’s bench. Opposite them sat a lone ICE attorney whom Peña had never met.

She felt herself growing tense, as she sized up the ICE attorney and the files stacked in front of him on the table.

The immigration judge asked Peña whether Carlos had passed his credible fear interview.

“Yes, your honor,” she said.

The judge asked the ICE attorney whether he objected to releasing Carlos on bond.

“No, your Honor,” he said.

Peña was shocked. After the hearing in Washington, she’d expected the ICE attorney to be just as tough. But he didn’t even mention the gang allegation. Within 15 minutes, the hearing was over and Carlos was granted a $7,500 bond. Outside in the hallway, she hugged the attorney from Haynes and Boone and blinked back tears. She couldn’t wait to witness Carlos’ first moments of freedom.

Six days later, Peña met Carlos at the Laredo bus station with her mom, who had wanted to meet him after so many months of his case absorbing her daughter’s life. Peña drove him back to Brownsville in her mom’s much nicer SUV, where he spent the night in a hotel before flying to Washington state to reunite with his kids. On the drive, Carlos was emotional and kept thanking her, but they also simply chatted and laughed. Peña had never seen the more joyous side of his personality. It made her joyous as well.

But after his plane took off for Washington, her celebratory mood flagged. She’d learned through more research that the State Department’s gang intelligence center had recently expanded to Guatemala, Mexico and Honduras. And that it was also growing its network in the United States. They’d only discovered the bad intelligence from El Salvador because they’d taken Carlos’ case to court, which had required a team of lawyers and cost upward of $100,000. Even with that, she still hadn’t been able to view the evidence, and the database was still largely a secret to the world. As far as she knew, Carlos’ name was still listed, and she had learned it was up to the accused to convince law enforcement in their home country to correct any false information — a nearly impossible task.

She wondered how many more parents were out there falsely accused and separated from their kids. It was a constant struggle to balance her concerns with what she was actually capable of achieving. Carlos still had an asylum claim to pursue, and the gang allegation could still be lurking in the background, ready to jeopardize everything.

After she saw Carlos off at the airport, Peña drove home. Before it got dark, she’d go horseback riding to try and forget for a few moments about whether Carlos would ever really find peace, to forget about the stacks of cases gathering on her father’s desk at home and about the others that would surely come — and would keep coming. She consoled herself with the thought that despite the odds against them, they’d tipped the scale of justice toward Carlos. He’d gotten a second chance.

Correction, Aug. 13, 2019: This story originally misidentified one of the workplaces of the parents of Laura Peña’s friends at school. They worked for Immigration and Naturalization Services, a precursor of ICE, not ICE.