[No Lost & Found Policy] Judge to ICE Cop in Court: "If someone at the jail takes your wallet, they give you a receipt. They take your kids, & you get nothing? Not even a slip of paper?"

Milk Carton Search. From [HERE] I sat across from my new client, a petite woman from Central America in her late 20s or early 30s, behind the plexiglass at the El Paso County Detention Facility. She had fled her country with her preteen son. Like many of the clients I’ve represented in the past four weeks, she had been charged with illegal reentry. She had no interest in discussing the charges, though. All she wanted to ask about was her son, who had been taken from her when she crossed the border. 

“Where is my child?” She demanded. “Why did this happen? Who took him? When will they tell me anything?” She made no effort to be courteous as she fired one question after another at me.

To all of her questions, I had to answer: I don’t know.

She stared me in the eye, indignant. “Why don’t you know?” she asked. “You’re my lawyer.”

As an assistant federal public defender, I’m not used to being in this position. I take pride in being able to provide information to clients, who are relying on me. I usually spend meetings cultivating the client’s trust, sharing legal expertise and answering their questions. In a typical meeting, the defendants in a federal criminal case ask the same questions: How much time am I looking at? What do these charges mean? Is my judge fair? Should I go to trial or plead guilty? But things are different in El Paso now.

In the wake of the Trump administration’s policy to purposely separate parents and children at the U.S.-Mexico border, my clients now ask: Where is my little girl? Who’s taking care of her? When do I get to see her again? Will they deport me without her? How will she be protected and by whom? How can I talk with her? Who will give her medicine if she’s sick? Gone are concerns about sentencing. It’s all about the parent and the missing child, separated not just by plexiglass and jail bars but by a gulf of the unknown. The president Wednesday signed an executive order ending the policy, but that changes nothing for my clients or the thousands of other parents who have already lost their kids at the border. The government does not yet appear to have a plan for reuniting families it has separated.

The client meetings have been crushing. One man sobs, asking how his small child could defend himself in a detention facility. One cries so uncontrollably, he is hardly able to speak. Question after crying question piles up from one client to the next. One man, short and large, sat hunched over for most of our conversation, weeping. Through tears, he stuttered and glanced up at me as he tried to explain what happened. The worst moment came when I held up a sheet with my office’s phone number and some other information. He said, with embarrassment, that he couldn’t read. The plight of these clients is compounded when a client can’t spell his missing child’s name, or even his own, in English or Spanish.

I have to explain to these parents that I might never be able to answer their questions. I can’t promise that they’ll be able to speak to their children, or know their whereabouts or who is taking care of them, or whether they’ll be sent back home without their kids. 

Why so many unknowns? This administration appears to have no infrastructure, policy or plan in place to deal with the destruction of families seeking refuge or a new life in our country. The disarray and confusion are on full display at the detention hearings I’ve attended for my clients — proceedings to determine whether a charged individual will be allowed to stay out on bond while their criminal case is pending.

During the hearing, the federal prosecutor puts an agent on the stand to give an account of what’s happened in the case, and then I am able to cross-examine. You would never know from the agent’s testimony that we’re dealing with a parent who has been separated from a child. That is not mentioned in the complaint. The prosecutor asks no questions about the child. At no point do they discuss the child. The child might as well not exist.

During cross-examination of one agent, I asked if she was aware that my client was arrested with his 4-year-old daughter. She said no. I was shocked, but this is the game. I asked whether she was the lead investigator, and if she had talked to field agents in this case. She said yes. I asked if it had become known to her that my client had his 4-year-old child with him. Yes, she said, but added that she didn’t know the child was a 4-year-old female.

The judge just glared at her. 

This is how it goes. I ask about the child; the government objects; the judge forces the agent to answer. The answer is always the same. 

“Do you know the location of the child?” No or unknown. 

“Did you provide my client with information as to the location of his child?” No or unknown. 

“Did you provide my client with any information as to how he could go about finding his child?” No or unknown. 

In a rare instance, one agent said a child was in a particular city — one far from El Paso. But of course, no details were known regarding the child’s specific location.

At another hearing before a different judge, as one of my colleagues asked the agent on the stand about the whereabouts of our client’s child, the prosecutor objected to the relevance of the questions. The judge turned on the prosecutor, demanding to know why this wasn’t relevant. At one point, he slammed his hand on the desk, sending a pen flying. This type of emotional display is unheard of in federal court. I can’t understand this, the judge said. If someone at the jail takes your wallet, they give you a receipt. They take your kids, and you get nothing? Not even a slip of paper?

Our office does what it can. If we’re lucky, we can determine that a client’s child is at least in the vicinity of El Paso. But those “answers” come only after calls and calls and calls to the Office of Refugee Resettlement (ORR). The process is so chaotic and byzantine that our office has tasked investigators, paralegals, administrative staffers and interns with calling and sitting on hold, waiting to speak to someone. Some of our investigators have waited nearly an hour just to get a person on the line. And once they find someone, their inquiries are met with vague statements that the child is in the United States. The ORR demands to speak directly to the parent of the child. We explain that the parent is in federal custody at local detention facilities, to no avail. We ask the local jails to facilitate the calls with the ORR. It took more than an hour for one call to be set up, so the jails stopped doing it. 

Meanwhile our clients, these traumatized parents, remain in custody on felony charges, despite no criminal history and, in many cases, only a single prior contact with the United States. They have no answer to the question any parent would have: When do I get to hold my beloved child again? Despite Trump’s declaration that he is ending the policy, I have little confidence that answers will be forthcoming.

While I’m an admittedly zealous defense attorney, always looking to challenge federal prosecutors on behalf of my clients, I’m generally able to step back and understand, if not agree with, the government’s reasoning for prosecuting federal crimes. Debate about what constitutes a crime and what is a fair punishment is as old as civilization. I believe it’s a valid and valuable discourse. But I cannot, for the life of me, understand or accept how the government believes that justice supported taking children from their parents at our borders. The government has discretion in charging crimes, removing individuals and all other aspects of criminal and immigration proceedings. The guiding principle should be to seek justice. 

But after seeing parents whose children were stolen away by the government, with no plan to reunite them, I know I am not seeing justice at work. And I don’t know how this will end.