(CN) — An El Paso federal public defender has challenged the Trump administration’s now defunct family separation policy as unconstitutional in an appeal he hopes will force the government to reunite immigrant children separated from their parents.
Natividad Zavala-Zavala, a 65-year-old Honduran, was arrested by Border Patrol agents in October last year after wading across the Rio Grande with her grandson, 1½ miles from the Paso Del Norte Port of Entry in El Paso, according to the criminal complaint against her. Shortly thereafter, she and her now 7-year-old grandson got an unexpected visit from an immigration agent, according to her attorney, assistant federal public defender Sergio Garcia.
“She told me she was in jail in a cell with her grandson sleeping, the next morning the officer woke them up and he said, ‘Hey, hug your grandson because he’s leaving. Who knows if you’re going to see him again?’” Garcia said in a telephone interview.
Garcia had Zavala’s illegal entry case consolidated with those of four parents who were separated from their children after their arrests, and filed a motion to dismiss their charges, rejecting a prosecutor’s suggestion they plead guilty.
“I said, ‘No. We’re going to go to trial’ because we wanted to preserve our arguments,” Garcia said.
Though the adults all had sought asylum, their children and Zavala’s grandson were placed in federal foster care.
“If the parents-defendants and their children qualify for refugee or asylum status, they cannot be prosecuted for being illegally in this country. It’s as simple as that,” the November 2017 motion for dismissal states.
Garcia’s clients also said the government was violating their due process rights by coercing them to plead guilty to be reunited with their families, and that its conduct implicated the “outrageous government conduct doctrine.”
Under that doctrine, they argued, by not letting them pursue asylum claims and not telling them where their children were taken, the government’s conduct was so egregious it lost its right to prosecute them.
A federal magistrate denied the motion from the bench in November, and court records show four of the five defendants, including Zavala, were deported in January and February.
“Nothing indicated the children went back,” Garcia said. “Who knows if they’ll ever see them again? And that is the alarming thing: It’s irreparable harm that they have suffered with these constitutional violations.”
He appealed to U.S. District Judge Kathleen Cardone, who upheld the convictions in a June 11 order in which she wrote that she was confining herself to the legality of the convictions.
“The court does not pass judgment on the manner in which the government elected to administer and oversee the handling of these migrants and their immigration cases. That issue is not before the court in this criminal case,” she wrote.
Garcia immediately appealed to the Fifth Circuit, which has yet to set a briefing schedule. He said he will move to put the case on an expedited track.
“We expect to lose with the most conservative circuit in the country, but we’re going to take it to the Supreme Court,” he said.
Though Trump signed an executive order Wednesday ending the policy of separating immigrant families, there is no indication it will be retroactively applied to adults who have already been deported without their children, Garcia said.
“So how can we return Ms. Zavala? How can we return this lady? How can we put her back the way she used to be? That’s what we need to do. That would be justice. Put her back the way she used to be and don’t destroy her life,” he said.