Even as jails across the country release low-level offenders, federal prosecutors in Texas are still asking judges to detain immigrants they want to testify against smugglers.
Every night since early March, Jaime has slept on a bunk bed in a dormitory with four dozen other men at the La Salle County Regional Detention Center.
Border Patrol agents arrested Jaime on March 4 after he crossed into the U.S. illegally, but he hasn’t been charged with a crime and he isn’t awaiting a date in immigration court. He’s being held by the U.S. Marshals Service because he’s a witness for federal prosecutors pursuing a case against a U.S. citizen accused of trying to smuggle him. He spoke with me by phone from the detention center in Encinal, north of Laredo, on the condition I not use his last name.
The 32-year-old from Mexico spends most of his day in a dorm watching TV, playing cards, and eating at one of the two long tables on either end of the room. The novel coronavirus was just making headlines when Jaime paid a smuggler $2,000 to take him to Fort Worth from the Mexican border city of Miguel Alemán; now it dominates the news he watches.
“The truth is, we’re all afraid, because on the television they say you’re not supposed to have 50 people [in one place], and in detention we’re 48 people,” he told me. “They say on the television that if one person gets infected, then everyone else will.”
As the coronavirus sweeps across the U.S., incarcerated populations are particularly vulnerable to the disease it causes, COVID-19. Jails, prisons, and detention centers where detainees are at close quarters and new residents are constantly being admitted are potential breeding grounds for a viral outbreak.
Around the country, cities, counties, and states have moved to release low-level offenders to decrease the risk of outbreaks in jails and prisons. Advocacy groups have asked judges to order those most at risk from COVID-19 released from U.S. Immigration and Customs and Enforcement (ICE) detention centers. In Texas, Governor Greg Abbott is in a standoff with county officials who want to reduce jail populations until the epidemic passes.
But less attention is being paid to people like Jaime. Material witnesses, usually immigrants who are arrested after crossing into the U.S., are held as a matter of course during human smuggling investigations in South Texas. Under federal law, a judge may order the witness to a crime detained “if it is shown that it may become impracticable to secure the presence of the person by subpoena.” For immigrants who are otherwise facing deportation, federal officials assume they won’t be able to call them back to testify if released.
“When we criminalize migration, we set up systems that compound harm and enforce punitive measures against already marginalized people,” Norma Herrera, a community organizer with the RGV Equal Voice Network, wrote in a text message. “To be smuggled into the country must be harrowing. To be imprisoned by the government in their pursuit of punitive ‘justice’ … is to be further exploited. In the context of a COVID-19 pandemic, it could mean death in confinement.”
Herrera’s group has called on ICE to release 2,000 immigrants being held at detention centers in the Valley, but activists have also asked federal officials to slow arrests and keep people out of courtrooms and jails in the first place. To reduce the spread of COVID-19, federal judges in the Southern District of Texas, which includes Laredo and the Rio Grande Valley, are postponing most proceedings until May.
Meanwhile, federal officials continue to detain material witnesses. In March, judges in Laredo, McAllen, Corpus Christi, and Brownsville ordered the Marshals Service to hold more than 120 witnesses, all of whom were in the U.S. without authorization and could face deportation if released, so they could be called to testify against the people who smuggled them. Witnesses are technically eligible for bond, but because they face deportation, they won’t be released, Derly Uribe, an attorney who was appointed to represent Jaime, said.
Even in seemingly open-and-shut cases, like when agents secure a confession from the accused smuggler, prosecutors still hedge their bets by detaining material witnesses, said Christopher Sully, a former federal prosecutor who’s now in private practice in McAllen. If agents made a mistake, like violating the smuggler’s civil rights, and a judge rules the confession or other evidence is inadmissible, prosecutors can still call the immigrants to testify.
“For actually proving the crime of smuggling illegal aliens, the government has to prove they were illegal aliens, not just you thought that they were,” Sully said. “I haven’t seen a situation where the government or prosecutor has said, ‘We have a strong enough case that we don’t need material witnesses.’”
On much of the Texas-Mexico border, material witnesses are typically held long enough to take their depositions, then released and often deported. Even then, the time spent in detention can be weeks. Now it could be longer. On March 18, a judge in Corpus Christi ordered a 17-year-old from El Salvador held as a material witness until he can be deposed in June. Agents at the Border Patrol checkpoint in Sarita, north of Brownsville, found him in the trunk of a red Mazda 6 sports car, according to court records; the driver was charged with smuggling. Less than two weeks later, even as the 17-year-old remains in custody, the woman driving the car was released on bond.
If an accused smuggler pleads guilty before the scheduled deposition, prosecutors can offer a sentence reduction, which incentivizes plea agreements, resolving the case and releasing material witnesses, Sully said. But court closures are delaying depositions, said Evelyn Huerta Gonzalez, a Corpus Christi attorney who represents detained witnesses.
Even before the coronavirus outbreak, in Laredo, witnesses were detained without being offered a deposition until the case they’re supposed to testify in finishes, attorneys said. That’s usually about three to four months, Uribe, Jaime’s attorney, said. Uribe said he doesn’t know why federal officials in Laredo don’t hold depositions for material witnesses. Doing so “can’t be more expensive than detaining someone in a facility for three or four months,” Uribe said.
Officials with the U.S. Attorney’s Office for the Southern District of Texas did not answer a list of questions I submitted asking why Laredo doesn’t allow depositions for material witnesses and if the office was considering new guidelines for holding witnesses during the coronavirus outbreak. Instead, a spokesperson shared a written statement from Ryan Patrick, the U.S. attorney.
“The safety of my staff and the public is my number one priority,” Patrick said. “We have had people in two offices test positive for COVID-19 and are taking all appropriate steps following CDC and local health guidance in order to ensure staff safety, including telework, home quarantine, and special office sanitizing.”
Jaime was arrested after Border Patrol agents stopped a white van he was riding in on U.S. 83 near the Webb and Zapata county line, en route to Laredo, according to court records. The driver, a U.S. citizen, was charged with smuggling immigrants. Jaime told the agents he paid $2,000 to be smuggled into the U.S. and would pay an additional $6,500 after being taken to Fort Worth. He crossed the border on March 3 near Roma and hid for hours in a neighborhood before the van picked him up and took him to a nearby hotel. On March 6, he was hauled before U.S. Magistrate Judge Diana Song Quiroga, who had him detained because “it would be impracticable to secure their presence at such time as the case is called for trial.” The judge set a $25,000 bond, which Jaime can’t afford to pay.
Jaime said he thinks the beds in the dorm room are about 5 or 6 feet apart. Ricardo, another detained material witness who also spoke to me on the phone from the detention center under the condition I not use his last name, told me he thinks they’re much closer. Ricardo had been there since December. He was arrested on December 5 along with a small group of immigrants trying to hike around the Border Patrol checkpoint about 40 miles north of Laredo, according to court records. The U.S. citizen charged with smuggling told agents he’d been offered $500 at gunpoint to drive the immigrants onto a ranch and guide them through the brush. Federal officials released him on bond.
When I spoke to him in early April, Ricardo said one detainee at the center had flu-like symptoms. He wondered why the guards won’t distribute masks to the detainees. A Marshals Service spokesperson told me the agency holds about 66,000 people nationally, mostly criminal defendants awaiting trial, by contracting with state, local, federal, and private jails and prisons. Last week, a Marshals Service official said there were 233 witnesses in custody in the Laredo area.
“These facilities are responsible for the medical care that [Marshals Service] prisoners receive, and they work closely with state health departments and the Centers for Disease Control and Prevention to ensure that infectious diseases are promptly identified and treated,” wrote spokesperson Dave Oney in an email.
Officials at the La Salle County Sheriff’s Office, which operates the Encinal detention center and contracts with various federal agencies, didn’t respond to my request for comment.
“We’re all at risk,” Ricardo said. “But there’s nothing we can do.”
Correction: An earlier version of this story stated that most material witnesses are not released because they can’t afford the bonds judges set. The story was updated to clarify that material witnesses are unlikely to be released on bond because of their immigration status. The Observer regrets the error.
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