U.S. Magistrate Judge Miguel Torres denied on Monday an unprecedented motion to dismiss criminal charges against four Central American parents and one grandmother for illegally crossing the border and whom were separated from their accompanying children as a result.
The Office of the Federal Public Defender for the Western District of Texas argued that prosecuting potential asylum seekers and removing their children violates the U.S. Constitution because they are pleading guilty under duress to be reunited with their kids.
The government contended that the separations had nothing to do with the criminal accusation at hand of entering the country without authorization. Dismissing such charges could encourage adults to bring minors simply to avoid such prosecutions, it said.
Immigrant advocates say criminal prosecutions for crossing the border enable President Donald Trump’s administration to bypass a landmark 1997 federal settlement, known as the Flores Agreement, that bars the prolonged detention of migrant children even when they are with their parents. Critics say the settlement has led to a practice of arresting and releasing migrants with no consequence, encouraging illegal immigration.
The El Paso judge repeatedly expressed his concern that parents facing such charges are kept in the dark about the whereabouts and wellbeing of their children, whom are put into federal foster care shelters once adults are imprisoned. He worried that such a lack of information about their children could force parents to plead guilty involuntarily.
The U.S. Supreme Court has ruled that immigration consequences can be a critical factor in the nature of a defendant’s guilty plea. Torres said parents might similarly think it is in the best interest of their child to plead guilty so that they can more quickly reunite.
"At this point, they don’t know if they are going to be deported before, after, or at the same time as their kids," the judge said. "If you were in the defendants’ shoes, that would be a considerable factor" in pleading guilty.
The public defender’s office is appealing the decision.