from the United States District Court for the Western
District of Texas
KING, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE
unrelated incidents between October 21, 2017 and October 23,
2017, Appellants Blanca Nieve Vasquez-Hernandez, Elba Luz
Dominguez-Portillo, Maynor Alonso Claudino-Lopez, Jose
Francis Yanes-Mancia, and Natividad Zavala-Zavala were each
apprehended by Customs and Border Protection (CBP) soon after
entering the United States from Mexico. Appellants, citizens
of Honduras and El Salvador, were each accompanied by a minor
child (in one appellant's case, a
grandchild). Appellants stated to CBP during initial
processing that they feared persecution in their home
countries. They were arrested, charged with misdemeanor
improper entry under 8 U.S.C. § 1325(a), and detained in
El Paso. The government did not detain the children with
their parents, but instead transferred the children to the
custody of the Office of Refuge Resettlement (ORR) in the
U.S. Department of Health and Human Services.
July 2017, children were typically only referred to ORR when
they entered without a parent or guardian. U.S. Dep't
Health Human Servs. Office of Inspector General,
Separated Children Placed in Office of Refugee
Resettlement Care, 3 (Jan. 2019),
July 2017, "some children [were] referred to ORR after
being separated by DHS from a parent . . . with whom the
child arrived. Historically, these separations were rare and
occurred because of circumstances such as the parent's
medical emergency or a determination that the parent was a
threat to the child's safety." Id. However,
between July and November 2017, the El Paso sector of CBP
"implemented new policies that resulted in 281
individuals in families being separated." Id.
It was during this period that Appellants arrived with their
children. Appellants' immigration forms indicate that
they were separated from their children not because of a
medical emergency or safety concern, but because of the
parents' impending prosecutions.
magistrate judge convicted and sentenced Appellants after
bench trials where Appellants stipulated to facts
establishing all the elements of a § 1325(a) offense.
The district court affirmed. In this consolidated appeal,
Appellants argue that (1) they should not have been
criminally prosecuted because they sought asylum, and (2)
being separated from their children rendered their
convictions constitutionally infirm.
have never disputed the sufficiency of the government's
evidence. As the district court explained in its careful and
detailed order affirming the convictions, "the soundness
of the government's policies regarding arriving asylum
seekers and their minor children is not before the Court in
this appeal." We agree and affirm.
made their initial appearances before the same magistrate,
who appointed a Federal Public Defender to represent them. On
November 7, 2017, Appellants filed a consolidated motion to
dismiss the criminal complaints. They contended that the
§ 1325(a) charges were premature because their asylum
claims had not yet been processed. They also argued that
separation from their children would render any guilty plea
involuntary, and constituted "outrageous" conduct
requiring dismissal of the complaints. Appellants confirmed
that they were "not seeking that the court analyzes
[sic] the strength of the government's § 1325 cases
against them. . . [T]he parent-defendants' guilt or
innocence under § 1325 is not at issue on this
motion." On November 9, 2017, the government offered
Appellants plea agreements with sentences of time served.
Appellants did not accept.
magistrate set a hearing on the motion to dismiss for
November 27, 2017, and set bench trials for December 1,
2017. At the hearing on the motion to dismiss,
Appellants raised two new arguments. First, they argued that
because their children were material witnesses, going to
trial without the children present would violate due process.
Second, Appellants contended that conviction and deportation
would unconstitutionally terminate their parental rights. At
the end of the hearing, the magistrate denied the motion to
their individual bench trials, Appellants all stipulated to
facts and evidence establishing all the elements of a §
1325(a) offense. Appellants did not testify and did not
present any affirmative defenses. The magistrate found
Appellants guilty and sentenced each to one year of
non-reporting probation. Appellants moved for
reconsideration, which the magistrate denied on January 12,
appeals to the district court were consolidated. While the
appeal was pending, four of the five (all but
Vasquez-Hernandez) were found inadmissible under 8 U.S.C.
§ 1182 and deported, apparently without their children.
Vasquez-Hernandez was released on immigration bond on
February 21, 2018. On June 11, 2018, the district court
affirmed the convictions. In a detailed order, the district
court examined Appellants' arguments and found no basis
for reversing their convictions. This timely appeal followed.
appeal concerns the district court's affirmance of the
misdemeanor convictions and sentences imposed by the
magistrate. We therefore "review the magistrate
judge's findings of fact for clear error and conclusions
of law de novo." United States v.
Hollingsworth, 783 F.3d 556, 558 (5th Cir. 2015).
seek to challenge their convictions on six grounds: (1)
separation from their children was pre-trial punishment that
violated due process; (2) the convictions violated the Eighth
Amendment because they resulted in Appellants'
deportation and continued separation from their children; (3)
separation was outrageous government conduct and the criminal
complaints should have been dismissed; (4) separation
violated Appellants' rights to exculpatory evidence; (5)
separation deprived ...