Stay up to Date
VOSD's biweekly roundup of stories on the border, immigration and the San Diego-Baja California region (Mondays)
The government touted one couple’s arrest in a splashy press release. But the case against them fell apart in court, for reasons that have become common in criminal prosecutions of migrants seeking asylum in the United States.
When Edy Giovanni Fuentes-Alvarado, his wife Kenia Yamileth Gomez-Caballero and their 9-year-old daughter presented themselves at the San Ysidro Port of Entry in October to seek asylum, the family from El Salvador probably thought the hardest part of their ordeal was over.
The family passed an interview with asylum officers, who evaluated their fear of returning to their country – the first step in the asylum process. The couple was then allowed in to the United States, and went to live with family in Lake Elsinore – with ankle monitors for the adults – as they awaited their asylum proceedings in Los Angeles.
But in February, a far more routine interaction with immigration enforcement officials landed them in criminal custody and threw a major wrench in their asylum claim.
According to court documents, around noon on Feb. 24, the couple – along with a U.S. citizen friend – was stopped at a Border Patrol checkpoint on State Route 94. They said they were on their way back from having breakfast with friends in Dulzura, California.
Fuentes-Alvarado and Gomez-Caballero told the agent that they were citizens of El Salvador, and provided identification cards showing they had permission to be in the country.
The agent sent them to secondary inspection to verify their story. Indeed, the additional searches showed that they had pending asylum cases.
The couple was eventually arrested on human smuggling charges.
But what happened in the hours following the initial stop differs between agents and the asylum-seekers.
The agents, in court documents, say Fuentes-Alvarado told them he was on his way to pick up a cousin, who he acknowledged was undocumented. They say they received his permission to search his phone, where they eventually were able to use the cousin’s messages and GPS coordinates to find two individuals from El Salvador hiding in brush nearby who did not have permission to enter the country.
Later, the people found in the brush indicated that they had been in the car earlier that day, according to the agents’ reports.
But the couple says that only happened after their rights were violated many times. In court documents, they argue they were held for more than eight hours with disregard for their constitutional rights, pressured into phone searches and interrogations by agents after invoking their right to counsel. The couple’s attorneys have held that most of the statements and evidence being used against them in the case was obtained illegally.
The government even sent out a press release touting their arrest, which was picked up by the likes of Breitbart and the Washington Examiner. It was an example of what the administration has been trying so hard to show: that Central American asylum-seekers are criminals.
But less than two months later, the government quietly dismissed the case.
What may have started as an attempt to publicly criminalize asylum seekers from Central America wilted in federal court, but the repercussions for the family are long-lasting and leave their asylum claims – and their lives – hanging in the balance.
The case exemplifies many of the concerns that have become a hallmark of criminal arrests of migrants at the border.
The constitutionality of the stop, the couple’s detention and the search of their devices at a Border Patrol checkpoint were all called into question in court. The day before an evidentiary hearing in which Border Patrol agents were supposed to testify to clear up discrepancies between the various accounts of the arrests, prosecutors moved to dismiss the case.
Concerns about due process in the case extend beyond Fuentes-Alvarado and Gomez-Caballero: the individuals found in the brush after were deemed to be material witnesses in the case, and were detained for a month without bond though they themselves were not charged with any crimes. It’s not the first time witnesses have been detained for extended periods in criminal immigration cases in San Diego.
Fuentes-Alvarado and Gomez-Caballero were charged with human smuggling, which is puzzling when compared to other human smuggling cases often filed in the federal criminal courts along the border. There was no one actually found being smuggled in the car.
“It does seem like a pretty weak case,” said Andrew Nietor, who does criminal defense and immigration work in San Diego. Nietor did not represent either client, but briefly reviewed some of the court filings at Voice of San Diego’s request.
The U.S. attorney’s office and attorneys representing the asylum-seekers declined to comment.
Human smuggling is a broad charge. According to the Immigration and Nationality Act, criminal penalties for human smuggling or “bringing in and harboring certain aliens,” can result from knowing someone is undocumented and encouraging them to enter the United States illegally, helping them do so, transporting them across the border or housing or hiding them in the United States. Commercial gain isn’t required to be charged with the crime.
Federal agencies that investigate human smuggling, like Homeland Security Investigations, have previously told Voice of San Diego that though the crime is technically broad, they focus their investigative resources on large transnational smuggling organizations that exploit people for profit.
Officials say they use administrative channels, with less severe punishments, for smaller cases they come across, like someone who helped a family member enter the country illegally.
“For HSI, the question becomes one of whether or not a particular human smuggling or trafficking event is associated with a wholesale, large-scale, high-volume transnational criminal organization,” James Plitt, the San Diego deputy special agent in charge of Homeland Security Investigations, told VOSD last year. “Law enforcement resources are limited, so we ask, ‘Does this deserve a larger investigative commitment or can it be addressed another way?’ The consequences have to match the true nature of the event.”
But it’s a charge immigration attorneys have noted is often used against immigrants, even when it’s not proven in a federal criminal court.
The couple’s asylum case is now split, since for unknown reasons, Gomez-Caballero has remained in immigration detention, while her husband was released. That means that a family with the same asylum claim could end up with different outcomes. And while the charges against them were ultimately dismissed, the government can still bring them up as a reason to reject their asylum claims.
The case seemed to fall apart when it came down to the details of the stop.
In April, Fuentes-Alvarado’s attorney Nora Hirozawa called on the judge in the case to suppress evidence and statements gathered by Border Patrol agents the day of the arrest, alleging that the information was gathered in violation of the Fourth Amendment.
“None of the eight Border Patrol agents who prepared reports in this case articulate any facts to support probable cause to detain Mr. Fuentes-Alvarado after his lawful presence in the United States was confirmed,” Hirozawa wrote in her motion to suppress evidence. “Once Mr. Fuentes-Alvarado, his wife, and their friend presented their valid documentation showing lawful presence, they should have been permitted to continue on their way.”
The three individuals in the car were held for more than eight hours before a videotaped interrogation occurred, though it was clear they’d already been interrogated before that too, according to the motion. It was only after they’d been held for eight hours that they were read their Miranda Rights – another violation, their attorney alleges.
The couple’s lawyer also argues that Fuentes-Alvarado never consented to a search of his phone.
“The agents continued to ask Mr. Fuentes-Alvarado questions, such as ‘you came to pick up your cousin who entered illegally, right?’ and ‘you were doing her a favor as family, right?’” Hirozawa wrote. “The agents also asked Mr. Fuentes-Alvarado to sign a consent to search his phone. Mr. Fuentes-Alvarado refused. The agents repeatedly told Mr. Fuentes-Alvarado that he had previously allowed them to look at his phone, which he protested.”
In its press release touting the arrest, the government wrote that agents received permission to search his phone.
In response to the motion, the government argued that holding them for so long was justified, in part because they were stopped in an area known for immigration-related crimes.
The day before a hearing set to hash out inconsistencies between the two sides’ versions of events, the government moved to dismiss the case.
“Upon review of the file and after discussions with the potential witnesses to be called at trial, the Government has determined that dismissal is appropriate in the interest of justice,” the government wrote in its motion, which was granted.
Allegations of Fourth Amendment violations at Border Patrol checkpoints are nothing new. The American Civil Liberties Union has long criticized border officials for abusing those checkpoints, which exist in a vast 100-mile border zone where much of the U.S. population is concentrated.
In a 1975 Supreme Court case, United States v. Brignoni-Ponce, the court ruled that to justify a stop, a Border Patrol agent needs several reasons to pull over a car near the border, such as observing a vehicle with an unusual number of passengers. Agents can use race as a factor, the court ruled, but it can’t be the only one. However, the 9th U.S. Circuit Court of Appeals, which covers California, rejected “any reliance on Hispanic appearance or ethnicity” in making roving patrol stops in 2000, citing the country’s changing demographics.
“The points of these checkpoints are explicitly for immigration enforcement and aren’t supposed to be used for general criminal enforcement,” said Sarah Thompson, Border Litigation Project staff attorney at the ACLU of San Diego and Imperial Counties. “If someone shows their proof of status, they should be able to continue on. But these checkpoints, we know, are often used as a pretext. We hear about people getting detained or their possessions being seized at checkpoints based on flimsy assertations.”
Though the case against the couple has been dismissed, it could still impact their asylum claim. Human smuggling accusations have been brought into immigration proceedings even in cases where no actual charges were filed.
The standards guiding what kind of information can be brought up in immigration proceedings are different than in other U.S. court systems. For example, hearsay – the introduction of rumors or information given by people that can’t be substantiated – is admissible in immigration court, when it’s not in criminal court.
The incident will likely follow the couple to their asylum proceedings regardless of whether it was proper to ever file criminal charges against them in the first place, Nietor said.
Another result of the incident: The family has been separated.
After bonding out of criminal custody, both Fuentes-Alvarado and Gomez-Caballero were transferred into immigration custody at the Otay Mesa Detention Center. Fuentes-Alvarado was released, but his wife has languished in detention.
That means her case has been put on a separate track from her husband and daughter.
Separating families with the same asylum claim is fairly common, said ACLU senior attorney Bardis Vakili.
Vakili said the separation creates all kinds of issues. First, it further clogs the backlogged immigration court system by creating multiple cases for one family that all have the exact same asylum claim.
And it puts the detained family member at risk of being deported without their family. There is a lot of discretion in immigration court, and Vakili said he’s seen cases where two family members with the same asylum claim have different outcomes with different judges.
Immigration dockets for non-detainees tend to move very slow with cases often taking years to resolve. But in detention, court dockets are “rocket-paced,” Vakili said, meaning someone’s claim can be adjudicated in a matter of months.
“Detaining someone away from legal assistance and witnesses in their case is really problematic,” Vakili said. “You have people who have the same case, but can’t access each other to help in their cases, so you get results where one might parent lose and the other wins.”