“We Don’t Know Because They Won’t Tell Us”

What it’s like to be a federal public defender on the Texas border right now.

Central American asylum-seekers wait as U.S. Border Patrol agents take them into custody.
Central American asylum-seekers wait as U.S. Border Patrol agents take them into custody on June 12 near McAllen, Texas. John Moore/Getty Images

On Wednesday’s Trumpcast, Jacob Weisberg spoke with Erik Hanshew, assistant federal public defender for the Western District of Texas, about the family separations along the U.S.–Mexico border. After the families’ arrest, the adults are taken into custody for federal criminal prosecution, which is where Hanshew and his office come in to provide counsel. The children are taken into the custody of the Office of Refugee Resettlement. Hanshew was in his office in El Paso, which overlooks a detention facility where parents are currently being held.

Jacob Weisberg: The parents are across the street from you—they’re your clients. Where are their children being sent?

Erik Hanshew: There’s the question everybody would like to know the answer to, particularly their parents and my clients. We don’t know. Right now, the process is essentially to start calling the ORR number, asking the whereabouts of our client’s child. Usually we’re told they’re safe somewhere in the United States. ORR for a large part has refused to provide any significant details as to where specifically that location is. It’s not till much later in this process that there’s even any word about, for example, a city and/or a particular home or facility. So right now the answer to most of our clients is, “We don’t know because they won’t tell us.”

And when they’re trying to track their children, what do they have? Is the child given an identification number? Do they have a claim check?

There isn’t. There’s another huge problem, which is there appears to be no coherent policy by [the Department of Homeland Security], ORR, Department of Justice, whichever executive group you want to talk about, as to what it is they provide or don’t provide to these parents. It runs the gamut from—anecdotally, being in the field down here representing these folks—some get absolutely nothing, others have been told to call numbers, others have been given some paperwork about the now–immigration proceeding that their child will be a participant in. But there is no clear, straight answer to this.

And is your job as public defender to help them find their children, or is it simply and only to defend them on the criminal charges related to crossing the border?

Our appointment in this case is to represent our client in the federal criminal proceedings. But a component of that includes issues, for example, such as bond. That’s a big issue that’s arisen here in El Paso, which is our office asking on behalf of our clients, the parents of these children, to be able to be out on bond so that they can actually have a realistic chance of trying to locate, console, and hopefully reunite with their child. So we have to gather that information because that’s something that we present to the court and the court’s considerations of their criminal case. So it is crossed over into all proceedings.

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Have you been able to get bail for any of your clients?

We’ve had some success. There are a number of different magistrate judges here in El Paso. But one particular judge here, Judge Miguel Torres, just a few weeks ago started granting bond. In each case, it’s a case by case, but for example I had three cases with separated parents that he granted a bond. Now the unfortunate part is that the government, meaning the U.S. attorney’s office, immediately appealed and asked the higher-level courts to stay the bond. So at this point, our clients are in a waiting game, still in jail until the next level of courts decides whether Judge Torres’ decision was correct.

What does the government want to happen in these cases? Presumably, they intend for these people to be deported, I guess together or separately with their children. But what consequence are they looking at for the crime of border crossing?

They don’t oppose what almost all these individuals get, which would be time served. So they’re not necessarily going to court and asking for a bunch of time. It’s that they are getting these criminal convictions and felony convictions on it.

Conviction, deporting—so if they cross the border again, then I presume …

Right. Now, instead of the exposure being for a person with no prior history and no criminal history, a range of punishment of zero to six months, meaning usually something like time served or probation, upon return that escalates. You’re talking multiples of three or four times, that type of exposure for coming back here. Because now when you come back illegally as a previously deported felon, the punishment ranges jump. They don’t talk about months—it can reach years.

Before the zero tolerance policy, these weren’t criminal suits necessarily. Crossing the border illegally was treated as a civil infraction, not a criminal offense, right?

Yeah, so it’s correct to say that the federal criminal law of illegal re-entry has existed for years. What is different now is that prior to these new policies, individuals—of which most of these separated parents fall into this group—had had no prior criminal history in the United States and limited immigration contact, meaning they had come here once or twice in the past and had been processed through immigration proceedings. They would not be put into federal criminal prosecutions like they are now. A year ago, these individuals never would have met me because they would never have been in federal criminal prosecution proceedings.

How do you get assigned these cases, and what’s the process in each case?

The start of this whole process that gets the wheel going is our clients, well before they’re our clients—they show up in federal criminal court, and a judge makes a determination about appointment of counsel. They appoint, in a large number of cases, our office, the office of federal public defender.

Our office each day gets these cases, takes them in, and then assigns them out to the various assistant federal public defenders. Then the personal part starts: You walk out the door and turn the corner and go meet the human being. You go meet that person at the jail, and this whole process, this whole new policy, has really changed that relationship. Instead of going there and meeting a client whose questions are about “What time am I looking at?” or “What do the charges mean?” or “What [do I] tell the judge in front of me?”—you know, the typical questions that someone being charged with a federal crime would ask their lawyer—the conversation now, it’s tragic. It’s a conversation of a parent explaining what happened to them out in the field, that their child was taken. And then the series of questions that any parent would ask: “Where is my boy?” or “Where is my girl?” and “Where are they taking them? When will I see them? Are they going to be OK? Are they going to send me back to my home country with them, or are they going to send me without them?” That’s the conversation now in the face-to-face with these parents.

As a public defender, do you see these cases through from arraignment to deportation or final disposition? Or do you hand it over at some point to somebody else?

As the federal criminal defense attorneys in this case and the public defender in particular, our appointment is to represent them in their criminal proceeding, so from the initial in the case when we’re appointed till the ultimate disposition, which typically in federal criminal cases, at least here in El Paso, is usually a sentencing, the occasional not guilty or acquittal. But once that criminal case ends, that’s the end of our appointment. And then the individual, if they’ve been sentenced, once they complete that sentence is when they then proceed to the immigration court or proceedings. And that’s where discussions of removal, deportation, seeking relief, and all that begins.

I can only imagine the distress of these parents who would have just one question, which is, “Where are my children, and what’s happening to them?” This must take a psychological toll on you and the other public defenders. How do you deal with this, having people in this horrendous, inhuman situation, and doing that all day, every day?

It’s hard. I’m a father myself, and I’ve been used to this job where you deal with stressful situations and meeting a stranger and having to try to make a relationship as quickly as possible with them and tell them tough things. But I’ve never in all the years of doing this had to repeatedly tell a client who’s a parent that “I’m sorry, I can’t believe that this country did this to you and your child.” And too, most horrifically, “I don’t have any good, concrete answers to what you care about, which is exactly where your child is and when will you be with them.” And that’s something that is—it’s difficult. If any parent—any human being—can imagine having to share that with somebody when that person rightfully believes the only person out there that they know at that point in time, whose job it is to help them and educate them and give them legal advice, and we’re left answerless in many instances because of what immigration has done and what they failed to do and how they’ve failed to explain to anyone what exactly this process is, when it ends, how it ends, and all those other things that the parents want to know.

And what percentage of them would you say came planning to claim asylum or are escaping political persecution or gang violence?

That’s one of the tricky parts of putting a finger on that because there’s two distinct proceedings, right? You’ve got the criminal prosecution of which we are the defenders for these folks. And then there will be the immigration proceedings, which they will ultimately end up in. It’s at those proceedings, typically, that they are asserting and making those types of claims for what we would call relief—like asylum, as you mentioned. They’re intertwined in the sense of that’s part of figuring out how they made their way here. But how and if and when they make those claims and exactly how they make them becomes an issue with immigration.

You can’t make an asylum claim after you’ve been deported. Do they have the ability to assert that in this initial proceeding?

If the process works as it should, when they arrive, they’re at immigration after completing their federal criminal case, normally meaning they completed their sentence. They’re supposed to be provided an opportunity there to make claims of credible fears and those types of things. As a federal defender, every week I meet new people. Before this, thankfully, it wasn’t parents with their kids taken. But you meet people, and lots of these cases around the border in federal court have always been about illegal immigration and such. And when you hear the stories of these individuals about where they came from, why they left, why they risked their liberty, why they risked their safety, all these considerations, what we, I think, in the United States have a hard time understanding is the actual reality of the day-to-day life for so many of these individuals, which includes abject poverty, and that just touches the tip. That doesn’t get into violence, gangs, cartels, health care. These are all the issues.

We have a health care debate in our country when we talk about what insurance covers and what it doesn’t. This is a health care debate about the fact that there’s nothing. You are going to die from your maladies unless you escape. So this is the reality that I think people miss when they’re saying, “Oh, it’s their fault because they brought their child here.” You hear this from some of the government lawyers arguing these cases about the fact that they made the choice and they brought their child here and the dangers and stuff. Well, you know, ask yourself what you would do as a parent if that was your reality where you lived.