EX ICE Attorney- Government Relying on False Evidence Against Migrants
The Case That Made an Ex-ICE Attorney Realize the Government Was Relying on False “Evidence” Against Migrants
Years after quitting her job as an attorney for Immigration and Customs Enforcement, Laura Peña returned to the fight — defending migrants she’d once prosecuted. Then, a perplexing family separation case forced her to call upon everything she’d learned.
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.