'Women to one side, men to the other': How the Border Patrol’s new powers and old carelessness separated a family

Mirza had a sense of foreboding soon after she crossed into the U.S. with her two children and their father, David. A Border Patrol agent ordered the family from Honduras and the rest of their group to divide into two lines: “Women to one side, men to the other.”

Mirza held 19-month-old Lia and joined the women’s line. David took their 6-year-old son Sebastian and lined up with the men. An agent told them not to worry, everyone was going to the same place. A bus took them in two trips to a collection of tents and trailers where they would be processed.

They arrived a few hours apart, held separately in a large waiting area. Mirza grew more anxious as she spotted David and Sebastian across the room. She motioned for Sebastian to bring her a bottle of water. “Papi says to take care of yourself,” he told her.

The family did not come together again. And within days, an international border stood between them.

David and Sebastian were sent to Mexico to wait before being allowed to make an asylum claim in a U.S. court. Mirza was fitted with an ankle bracelet, and she and Lia were sent to San Jose, California.

In separate Border Patrol interviews, both Mirza and David said, they told agents they had come as a family of four. But they were never recorded that way in Border Patrol records. David’s marital status was listed as “single” — he and Mirza had been together for 12 years, but they had never formally married — while Mirza’s was listed as “unknown.”

Border Patrol policy is clear: Whenever possible, parents, married or not, should be kept together with their children.

David said he pleaded with agents. “Please, find out for me in the system where my wife is. I came with my wife and you separated me from her.”

The agents weren’t moved. “You’re going to Juarez,” David said one agent told him. “Deal with it.”

Border Patrol has long been criticized for carelessness in migrant processing. But under the Trump administration, agents have vastly expanded powers to decide migrants’ fates.

In previous administrations, the government’s options for asylum-seekers were to detain them in the U.S. or release them — and Border Patrol wasn’t in charge of making that choice.

The Trump administration has replaced that system, which it derisively called “catch and release.” In September, then-Homeland Security Secretary Kevin McAleenan announced that “catch and release” had fully ended; Mirza and Lia were among the last Central American asylum-seekers to be allowed to stay in the U.S. without being detained by ICE.

The new strategy is what happened to David and Sebastian: Asylum-seekers are sent away from the U.S. as quickly as possible. Under a series of new programs, they can be sent to wait in Mexico, rapidly deported to their home country or sent to Guatemala to seek asylum there instead.

The results are what a lawsuit filed in December against the rapid-deportation programs calls “legal black holes,” where Border Patrol agents have almost complete discretion to decide who goes where.

Border Patrol agents “are not, in general, the right people to be making determinations in individual cases,” Scott Shuchart, a former official with the Department of Homeland Security’s Office for Civil Rights and Civil Liberties, told ProPublica. Letting agents determine who should be sent to what country “is an awful lot of power to be given to people who aren’t trained in how to use it.”

Outcomes can vary wildly even for migrants in similar situations. Parents arriving on different days have found themselves sent to different countries. One Mexican mother was rapidly deported, along with her children, while the father was detained in the U.S.

Customs and Border Protection, the agency that includes the Border Patrol, did not respond to requests to comment for this story. But a spokesperson did confirm some details of David and Mirza’s apprehension. The spokesperson also confirmed that their records contain no flags of suspected fraud or any other concerns; David and Mirza were simply never labeled part of the same family. (ProPublica is not publishing their family names to protect relatives still in Honduras.)

In a sense, David and Mirza’s family is luckier than some: They were ultimately allowed to stay and seek asylum in the U.S., a chance migrants who’ve entered more recently may never get. But the family’s well-being was threatened by their four-month split across an international border. Furthermore, the separation set off a chain of consequences that threaten their chances of ultimately winning asylum.

By the time El Paso, Texas-based lawyer Taylor Levy saw a Facebook message from a California attorney asking her to track down David and Sebastian, David’s family had been apart for six weeks. Photos of Sebastian back in Honduras show a chubby, smiling boy. But when Levy met with him, she was alarmed by his condition. He was “skin and bones,” Levy remembered. And “he wouldn’t make eye contact. He was almost catatonic.”

“I’ve worked with thousands of asylum-seeking families and hundreds of separated kids,” Levy said. “And he completely, completely just shocked me by how badly he was doing.”

On its face, the case of David and Mirza baffled Levy. The family crossed the border together and had fled the same violence and threats. But the more she thought about it, the clearer it became: Their predicament reflected the unaccountable, arbitrary system the Trump administration has created.

“This wasn’t just a mistake,” Levy said. “This was gross negligence.”

David had hoped to make a life with Mirza in Honduras.

“I never longed to come to the United States, God knows,” David told ProPublica. They had met as teenagers after David began taking farm jobs with Mirza’s family, and they courted on walks to church, respecting Mirza’s mother’s wishes that they not date until Mirza finished school.

In 2011, they moved in together. But then David faced threats from gang members. According to his sworn asylum declaration, which was confirmed by a relative to ProPublica, a male ex-classmate of Mirza’s who was involved in a local gang made sexual advances toward David that David repeatedly rejected.

David’s stalker’s first attack left a bullet lodged near his spine. The second riddled his leg with buckshot. David said he filed a police complaint, but nothing happened. (Honduras at the time had the highest homicide rate in the world, and 96% of murders went unsolved. The homicide rate has declined but is still among the world’s highest.)

The couple went into hiding while Mirza was pregnant with Sebastian. But threatening texts kept coming to Mirza’s phone. One especially chilling text sent shortly before they fled Honduras promised to kill the whole family, “from the largest hen to the smallest chick.”

When David’s sister and uncle were killed not far from where David and Mirza lived, the couple sought refuge in a smaller town. David did yard work, and Mirza became pregnant again and gave birth to Lia. But they were petrified. David’s grandmother reported a black van casing the neighborhood, and David watched a stranger on a motorcycle driving by their house.

In January 2019, they decided they had to leave Honduras. David called his aunt Marlen in San Jose, California, whom he hadn’t seen in a decade, asking her to take them in. “I’d like to get out of here,” Marlen recalled her nephew saying, “because if I stay, very shortly, they’re going to kill me.”

It took months to save 5,000 Honduran dollars for travel costs.

But as the couple planned their escape, the U.S. asylum system was changing.

For decades, the Border Patrol’s role in dealing with migrant families was to quickly pass them on to Immigration and Customs Enforcement, or ICE, which handles detention. If a migrant expressed fear of returning to their home country, they were interviewed by an asylum officer who would decide if they had a credible case. Families passing the interview — as most did — would generally be released in the U.S. to await a hearing.

But the Trump administration was determined to deter border crossings. In January 2019, it used an obscure legal provision to force Central American migrants who sought asylum to wait in Mexico before getting hearings in the U.S. That program (which has since expanded to other Latin American migrants) is known as the Migrant Protection Protocols, or MPP. In the fall, the administration launched two more programs for Mexican and Central American families, giving cursory review to their asylum claims so that they could be deported within 10 days. Toward year’s end, the administration started sending some Honduran and Salvadoran migrants to Guatemala to seek asylum there, without offering them a chance to make a U.S. claim at all.

With each initiative, the U.S. quietly rolled out a pilot program in one region, then expanded it. Gradual expansion has allowed the government to keep these programs out of the public eye, but it hasn’t led it to exercise more care: There’s increasing evidence of haphazard planning and implementation.

Days before the Trump administration started sending Honduran and Salvadoran asylum-seekers to Guatemala, basic logistics were still unclear — such as where asylum-seekers would live. Even as the administration considers expanding rapid-deportation programs, the DHS’ Office of Inspector General has launched an investigation into whether migrants are being treated fairly.

Under MPP, the Mexican government decides how many migrants per day it will accept from the U.S., and U.S. officials decide who gets sent to Mexico. Regional Border Patrol and port offices are responsible for making those daily selections, and leave it up to agents.

Guidance has been minimal. A January 2019 memo to CBP employees suggested that agents not send back to Mexico unaccompanied children, people with serious health conditions and other “vulnerable populations.” But it stressed that border agents had full discretion. In practice, pregnant women — even those about to give birth — are routinely sent to Mexico to wait. According to advocates on both sides of the border and migrants themselves, officers in El Paso often classify LGBT migrants as “vulnerable” and let them stay. Officers in Brownsville, Texas, do not.

An internal DHS report from November 2019 revealed that the government hadn’t even developed standardized forms for MPP. In its response, DHS agreed to “reinforce” its existing guidance to clarify who qualified for the program. But it acknowledged that it had no standard procedures to determine selections, and it refused to commit to developing them.

Advocates argue it’s illegal to separate biological parents and children as a rule. “Any time you’re splitting up a family, the law requires you to have a compelling reason,” said Lee Gelernt, the ACLU lawyer leading the lawsuit which ended widespread family separations in June 2018. But rulings address only taking children away from parents entirely, not separations like David and Mirza’s, which split families but keep children with at least one parent.

The government’s processing guide instructs agents not to separate “family units with juveniles” — parents with children — but several current CBP employees told ProPublica that agents commonly ignore the guideline by separating men and women for transport and in detention facilities.

According to Border Patrol sources, the mistake in David and Mirza’s case likely occurred when Border Patrol agents failed to note their family status on intake forms. Agents should have reflected David and Mirza’s accounts on the forms and checked their children’s birth certificates to confirm parentage.

David’s account echoed complaints Levy had heard while working at Annunciation House, El Paso’s largest migrant shelter. She said she’s spoken to “thousands of people just released from Border Patrol custody. And over and over again, we hear the same things — that (agents) don’t listen to them.”

Mirza’s lawyer Shouan Zhoobin Riahi, a pro bono attorney with the Bay Area nonprofit SIREN, said his clients so commonly tell him they’ve been threatened or accused of lying that he doesn’t even bother to file court complaints. Neither David nor Mirza filed a formal complaint with the Border Patrol.

When David and Mirza came to the U.S. last summer, apprehensions of Central American families were at a peak. That week, 21,678 parents and children were taken in by Border Patrol. The agency faced a capacity crisis. Inattention to paperwork was common, according to multiple officials and attorneys for migrants.

Yet the paperwork mattered more than ever. Under the old system, the Border Patrol would transfer asylum-seekers to ICE, giving them a “second chance” to catch mistakes, said Aaron Reichlin-Melnick, a researcher with the American Immigration Council. Initial asylum interviews offered a third chance: Asylum officers had the power to unite families who’d been carelessly separated.

Under the new dispersal strategy — which has continued to expand even after intake numbers dropped — migrants only come into contact with one government agency: the Border Patrol.

The day after David and Sebastian were sent to Juarez, Mirza and Lia were shuffled onto a bus out of the Border Patrol facility and dropped at an El Paso shelter. A volunteer asked Mirza for a U.S. contact. She named David’s aunt Marlen, whom she had never met.

The volunteer arranged for a bus ticket and Mirza carried Lia onto an intercity bus. She couldn’t understand the bus announcements in English. When they arrived in San Jose, she worried that she’d exited at the wrong stop. Marlen was late, stopping at a store to buy a car seat for Lia. By the time she arrived, Mirza sat on a bench sobbing.

Mirza had been told to call a government hotline to learn about the status of her asylum case, but the hotline didn’t give her information. She realized she needed help. She walked into the offices of SIREN, which offered legal services, and spilled out her story to pro bono attorney Riahi.

Riahi sensed that Mirza could win asylum. The federal court that set precedent for San Francisco’s immigration judges and asylum officers had defined asylum eligibility broadly, and Mirza’s case, which would be considered there, fit well within a long-standing precedent.

Meanwhile, David’s case had been assigned to a judge in Texas who rejected almost all asylum claims.

David was likely to be deported unless Riahi could get him included in Mirza’s claim.

The challenge was compounded by yet another government mistake. No official had ever filed Mirza’s case with an immigration court. This allowed Mirza to apply for asylum proactively with an asylum officer, like migrants who enter the U.S. on visas — with slightly better chances than she would have before an immigration judge. But it meant Riahi couldn’t simply ask a judge to combine David’s case with Mirza’s, because the cases were on different legal tracks.

The best hope was that David could be included as a dependent on Mirza’s application. They’d have to be officially married first. So Riahi set about arranging a cross-border wedding.

Riahi, overburdened with pro bono clients, didn’t have time to go to Juarez. So he sent Levy a Facebook message. He didn’t know the veteran Texas lawyer, although he had seen Levy’s posts about problems with the MPP program.

Levy was hesitant to take on another request from a far-flung lawyer. Riahi “was really, really worried and he really cared,” she told ProPublica. “To be honest, it gets kind of exhausting, because everyone’s really worried and everyone really cares.” She decided to at least meet David and Sebastian in Juarez.

David and Sebastian’s world had become claustrophobically small. Leaving the shelter could mean getting mugged or kidnapped. With the exception of their first court hearing in El Paso — for which they’d traversed Juarez in the dead of night to reach the international bridge by 4:30 a.m. — they’d barely ventured out.

Sebastian had contracted a throat infection just before their first court date, and it worsened when the two spent another night in the CBP hielera (the holding cells called “iceboxes” because they’re kept so cold) before returning to Juarez. But the weight loss continued even after he recovered, leading David to suspect the boy was acutely depressed. For nearly three weeks, he rejected solid food. “It was just juice, juice, juice,” David said.

Speaking to Mirza on David’s clandestine cellphone (purchased against shelter policies) didn’t help. Sebastian lashed out at her: David and Mirza both recall him saying, “You’re a bad person, Mami. You left us here in Mexico.” Sometimes, he was so angry that he would not talk to her at all.

When Levy took on his case, David felt lucky. According to one analysis, 96% of migrants waiting in Mexico for their U.S. cases have no legal representation. But Levy warned him that if he remained on his judge’s docket, deportation was almost certain.

The only clear way to get removed from the MPP program was to persuade an asylum officer that David would be persecuted in Mexico — a very high bar he had already tried and failed to meet. Levy realized this family couldn’t rely on the process to bring them together. David and Mirza — and Levy and Riahi — would have to fight for it.

Riahi had originally planned to bring Mirza to the U.S. side of the border in New Mexico, bring David to the Mexican side and have them stand in their respective countries while a pastor offered the vows. But they couldn’t get a New Mexican marriage certificate unless both spouses appeared at the county office — an impossibility for David.

Instead, Riahi and Levy planned a sort of caper: they’d turn David’s next U.S. court hearing in El Paso, on Aug. 21, into a secret wedding.

Mirza flew to El Paso, carrying a wedding dress that she’d bought at Ross with lace sleeves and a layered skirt, her ankle monitor a telling accessory.

Levy took a single picture of the bride — cameras aren’t allowed in immigration courtrooms, and they didn’t want to push their luck — then entered the courtroom with Mirza and a Texas municipal judge to sign the marriage certificate.

When Sebastian saw his mother, he cried out, “Mami, Mami.” He fell asleep in her lap while the immigration judge conducted a brief scheduling hearing.

Afterward, Levy requested five minutes to confer with her clients in a side room, where the municipal judge hurriedly performed the ceremony. Then David told Sebastian, “Your Mami has to go now.” “No, I’m going with her,” Sebastian cried.

For two days afterward — through another unsuccessful plea with an asylum officer to get them out of Mexico, another hielera stay and another return to Juarez — the child was inconsolable.

With the marriage now official, Mirza could file her asylum application and include David as her husband.

But in the few weeks it took to submit the application, the Trump administration imposed another twist. Attorney General William Barr issued a ruling contradicting the federal court precedent Riahi had planned to rely on in Mirza’s asylum case.

Until a federal judge rules on Barr’s edict, asylum officers now have two competing precedents — and Riahi fully expected they’d defer to the new Barr ruling. Mirza’s case had gone from an easy win to a likely protracted legal fight.

Meanwhile, David and Sebastian were still stuck in Juarez. Under the shelter’s rules, after two court hearings they had to find another place to stay, so David found a cramped apartment he and Sebastian could share with four other Honduran parents and sons. He couldn’t work regularly because he couldn’t abandon Sebastian. They relied on Mirza’s earnings cleaning houses or loans from relatives to pay rent.

After money ran low, David and Sebastian squeezed into an even smaller apartment: one room crammed with 10 other people, a few bunk beds and a fridge. (When four of them left Juarez to cross with smugglers into the US, David and Sebastian gained a little space, but their share of rent rose to the equivalent of $100 US a month.) The apartment had only six plates and six spoons, so everyone ate in shifts. Playing “outside” meant playing ball in a hallway littered with rubble and broken glass.

Sebastian was beginning to put on weight and gain energy, but he was still shy around other children. When spoken to, he would either stay silent or cry. In mid-September, Levy brought in a counselor to assess Sebastian.

“While he was able to brighten his affect at times, particularly when recalling his mom and younger sibling, (Sebastian) still feels uncertain when asked about his mom,” the evaluation said. “He disclosed, ‘My mom left me and I don’t know why.’”

Mirza, too, was distraught. She joked that while Sebastian lost weight in Mexico, she was gaining it in the U.S. She cried often and slept little. Marlen took her to a psychiatrist, who diagnosed her with depression.

In El Paso, Levy prepared a court motion to move David’s court case to San Francisco, which would force the government to let him stay in the U.S. She gathered up the Honduran birth certificates; the wedding certificate; Sebastian’s psychological evaluation; a copy of Mirza’s antidepressant prescription.

The night before a hearing on the motion, Levy appealed directly to Border Patrol lawyers. “To the best of our knowledge, the family unit crossed the border together and were erroneously separated by Border Patrol agents,” she wrote in an email. “Please act expeditiously to remedy this erroneous separation.”

Two days later, after yet another court delay, Levy got an unexpected message from the Border Patrol. “The father and child are at El Paso Station 1, and are being converted out of MPP at this time.” They had beensaved from returning to Mexico. But no further explanation was provided.

“I don’t know if it’s because of anything that we necessarily did,” Riahi told ProPublica. “Taylor kind of moved mountains out there in El Paso, but ultimately CBP decided to do it.”

David and Sebastian didn’t fit into any of the categories outlined in the vague CBP policy about who should be sent back to Mexico and who should not. Discretion simply happened to work in their favor this time.

But for families caught in the new programs — which don’t include appearances before an immigration judge — the Border Patrol’s initial determination and any errors that come with it are, as far as anyone can tell, permanent. “If a Honduran parent is separated from their child in error and then sent to Guatemala,” Levy asked, “how is anyone supposed to access that parent?”

After a five-day wait in a hielera, David and Sebastian were finally released in El Paso on Oct. 7. They stayed at the Annunciation House shelter for a week, waiting for their next court hearing there.

But when Levy, David and Sebastian arrived in court, they faced yet another mix-up: The government had already transferred the case to San Francisco — without bothering to notify either Levy or the judge.

The next morning, David and Sebastian finally boarded an airplane — their first — to reunite with Mirza and Lia at last.

Moving David’s case to San Francisco essentially froze his asylum timeline, making it impossible for him to get a work permit. His first hearing in front of a San Francisco judge is set for early March.

The family had to move out of Marlen’s house; the garage Marlen had furnished as their bedroom wasn’t big enough to contain Lia’s boundless energy, and Marlen’s husband and teenage daughter had lost patience with the visitors. Mirza now worries how long they can afford their own apartment.

Some things have improved. With each passing month, Sebastian gets more comfortable in first grade — he’s made friends who help him with his homework now — and Lia gets more rambunctious.

But it’s far from clear that the family will be able to stay in the U.S. Their cases are still on two separate tracks.

Mirza’s asylum application remains in limbo. A December interview date was rescheduled, then postponed indefinitely. The attorney general’s ruling makes it more likely her claim will be denied. Their lawyers are prepared to appeal both cases if they lose, but appeals take years.

Mirza is certain they’ll be killed if they return to Honduras, but they intend to leave if ordered to do so. As Mirza told ProPublica, “We have to follow the law.”

However uncertain the future, the family remains together. That was what they celebrated that afternoon in October, when David and Sebastian arrived at Marlen’s home from the airport, with David holding their release orders and Sebastian carrying a toy light saber he’d had to sneak past TSA.

As the boy approached Marlen’s door, Mirza stood in the doorway. He paused for a second, then ran to her. Lia sprinted into David’s arms.

They posed for family pictures, and more than once, they had to look for Sebastian, who wandered off on his own.

Once he was safely deposited on Mirza’s lap, though, he wouldn’t let go.