This story was published in partnership with The Intercept.
In early June 2018, Noe Ortiz walked with two of his young children across a dry riverbed from Mexico into El Paso, Texas. The 33-year-old Guatemalan made the crossing during the height of President Trump’s migrant “family separation” policy, but he left behind a perhaps more perilous fate: death at the hands of the Calle 18 gang, which had extorted him, killed two of his brothers-in-law, and targeted him for murder.
An agricultural worker who lost part of one foot in an on-the-job accident, Ortiz arrived in El Paso wearing a boot on his amputated limb to stabilize his gait. He and his children were quickly apprehended by a Border Patrol agent. Ortiz remembers feeling devastated when he was handcuffed in front of his children and separated from them. He was charged with “illegal entry” into the U.S., a federal misdemeanor, and sent to the El Paso County jail to await trial. The boot was taken away, and he had only a sock to cover his amputated foot. He was unable to walk without the boot and fell repeatedly in jail.
Ortiz was locked up in El Paso because the U.S. Marshals Service recently has been paying the county about $24 million a year to hold federal detainees in its jails. During the past several months, El Paso’s jail system has held between 600 and 1,050 people a day under the contract. In 2018, El Paso jails locked up about 9,000 people for the marshals, according to data compiled by a county commissioner. At least 80 percent were there on immigration charges.
El Paso now holds about a fourth of all federal detainees housed in Texas public jails, more than any other public jail system in the state. Most detainees are people who have been convicted of nonviolent immigration-related offenses, such as entering the U.S. without authorization.
At a mass trial in federal court on June 15, Ortiz was sentenced to 35 days in the county jail. With credit for time served, he was supposed to be released July 9 and then transferred to an Immigration and Customs Enforcement detention center, where he could apply for asylum.
Ortiz was not released. Over the next few days, he repeatedly asked his jailers why he was not freed. They said they didn’t know, and Ortiz remained behind bars in El Paso.
In late June, a federal court ordered that all parents and children separated under the Trump administration’s zero-tolerance policy be reunited by July 26. That date also came and went, and Ortiz remained in jail. As he sought his freedom, he did not know where his children were. July turned to August, August waned, and Ortiz continued to stumble in his sock.
In August, an attorney for one of his children began calling around to different detention facilities and found Ortiz in the El Paso jail system. On Aug. 25, the jail turned Ortiz over to an ICE detention center. There, Ortiz was allowed to wear an orthopedic boot on his amputated foot, and he told an asylum officer about his fears of being murdered in Guatemala. The officer deemed his claim credible, and Ortiz was given a $3,500 bond. On Oct. 24 he was released and reunited with his family.
Now, Ortiz has retained civil rights lawyers in El Paso who are seeking damages from El Paso County for illegally holding him for 46 days.
A pattern of false imprisonment
El Paso is home to former congressman and presidential candidate Beto O’Rourke as well as Veronica Escobar, a Democrat who replaced O’Rourke as the representative of Texas’s 16th Congressional District. Both are passionate critics of President Trump’s “national emergency” rhetoric about the border and staunch advocates for immigrants’ civil rights. Politically, El Paso is deep blue, known in Texas for its welcoming stance toward immigrants and asylum seekers.
So an immigrant’s illegal detainment in El Paso County seems especially surprising. Even more disturbing, according to an investigation by The Appeal and The Intercept, is that many others have also been illegally detained. Through open-records requests, The Appeal and The Intercept have discovered that many immigrants languish in jail after they should have been released.
The Appeal examined El Paso jail records for four days chosen at random from August 2018 to January 2019, and found that dozens of immigrants were detained from one day to six weeks past their release dates.
Gilgracier de Almeida, a native of Brazil, told The Appeal and The Intercept in a letter that he came to the U.S. to escape death threats from a drug trafficker. After being apprehended in El Paso, he pleaded guilty on Nov. 16 to illegal entry.
ICE detainers request jails to hold detainees for up to 48 hours (not counting weekends and holidays) after they finish their sentences or have their charges dismissed. Such holds have been deemed unconstitutional in many jurisdictions, but the El Paso County jail honors them, and with De Almeida’s detainer he still should have been freed by Nov. 19. Instead, he was not released until Nov. 22 to an immigration detention facility where he could make a claim for asylum. Jefri Cartagena, from Honduras, pleaded guilty to misdemeanor illegal entry on Aug. 16 but was not released until Aug. 30—he spent at least 10 days illegally detained. Luis Alberto Garcia Hernandez, from Mexico, was supposed to be released Dec. 13. He did not get out of the El Paso County jail until Jan. 26—after at least 42 days of illegal detainment.
The delays appear to be so common that some local attorneys accept them without protest. After a mass trial for illegal entry earlier this month in an El Paso federal courtroom, The Appeal and The Intercept talked to a court-appointed lawyer for 14 immigrants who, within about a half-hour, had been sentenced to time served. Asked what would happen to them, the attorney shrugged and said, “They’ll spend a couple of days or maybe a week in the county jail before being taken to ICE.”
El Paso County Sheriff Richard Wiles told The Appeal and The Intercept that the delays were the fault of federal authorities. He said that the U.S. marshals were supposed to send the jail a form for each federal detainee, indicating the date when he or she should be released. Wiles said the jail did not receive a form for Ortiz until Aug. 24, and that as soon as it arrived, he was discharged.
Wiles’s office also sent The Appeal and The Intercept records for several immigrants who were held for days after they pleaded guilty to illegal entry and got time served on Aug. 16 and 17. The marshals waited until Aug. 29 to notify the jail, and the next day the immigrants were turned over to ICE.
“The El Paso Sheriff’s Office,” Wiles wrote in an email, does “not have a pattern of releasing inmates late.”
But Chris Benoit, one of Noe Ortiz’s lawyers, said there was a pattern of false imprisonment at the El Paso jail. “It’s the county’s responsibility to have a system set up so they know when people’s sentences end,” Benoit said. He said there is no system in place, and the jail’s current policies “are requiring them to hold onto people without regard to the constitutionality of their detention.”
U.S. Deputy Marshal Salvador Vasquez, who is based in El Paso, said that the marshals were unaware of anyone ever being kept in the local jail past their release dates—except for Ortiz. Vasquez said that Ortiz’s case “fell through the cracks” but recently came to the marshals’ attention. Benoit and another civil rights attorney representing Ortiz, Lynn Coyle, sent a letter to El Paso County Attorney Jo Anne Bernal in early March, threatening to sue on Ortiz’s behalf. (Bernal declined to speak to The Appeal and The Intercept, citing potential litigation.)
Lack of consensus
If Ortiz’s case ends up in court, it may revive a dormant community debate about whether the county jail in progressive, pro-immigrant El Paso should be housing people whose only crime is being unauthorized immigrants—and whether the county should cancel its jail contract with the U.S. marshals.
El Paso County has maintained the contract with the marshals at least since 1997 and is profoundly dependent on the money it brings in. In its most recently published report, from 2016, the Sheriff’s Office reported that the marshals paid El Paso County almost $24 million to house federal prisoners, whose average daily census at the time outstripped state inmates by 556 to 346. Money from the marshals, according to the county budget office’s assessment for this year, is the third-biggest revenue source after property taxes and sales taxes. Marshals money covers more than a quarter of the cost of running the county’s jails.
In June 2017, El Paso County Commissioner Vince Perez called a news conference to argue that the county was losing money by servicing the marshals contract. He added that county officials were sending a “hypocritical” message to the community. Perez said that Sheriff Wiles had just sued the state to overturn Senate Bill 4, then a newly passed state law that allowed police to ask people about their immigration statuses and also required jails to honor ICE detainers. Why, Perez asked, were the same officials who challenged SB 4 to protect the community’s immigrants, helping the feds jail them?
In 2017, Congresswoman Escobar was El Paso’s county judge, overseeing the Commissioners’ Court, which included Vince Perez. At the commission meeting after Perez’s news conference, Escobar slammed him for accusing the county of hypocrisy. Some of Perez’s fellow commissioners implied that he was simply grandstanding on the issue. They criticized him for calling the news conference before the entire commission could critically examine the data he had compiled. And Sheriff Wiles warned the court that if the contract were canceled, 250 deputies working at the jail—almost a quarter of the sheriff’s department employees—would lose their jobs. A member of the local sheriff’s association also excoriated the idea of laying off those employees.
Perez nonetheless made a motion to cancel the contract, but he couldn’t get anyone to second it, much less vote on it.
Linda Rivas is the director of Las Americas Immigrant Advocacy Center, an El Paso nonprofit that provides lawyers to low-income immigrants. Las Americas is part of the Borderland Immigration Council (BIC), a coalition of 11 immigrant-support groups and private lawyers. Rivas said that Judge Escobar asked her whether the marshals contract should be canceled or maintained. Rivas took the question to the entire BIC.
“I’ll be honest,” Rivas told The Appeal and The Intercept. “We did not come to a consensus.” Maureen Franco, of the local federal public defenders office, said that canceling the contract would result in immigrants being moved outside of El Paso, which would force her staff to drive farther to visit clients. “But someone said, ‘Well, maybe the public defenders should ask for a bigger budget to go and represent people where they need to be represented,’” Rivas said.
At least one BIC member adamantly opposed the contract. The Detained Migrant Solidarity Committee (DMSC) helps people raise bond money so they can go free while awaiting decisions on their asylum cases. Alan Dicker, at the time a DMSC member, called the group “the abolitionist wing of the immigration community” in El Paso. The DMSC believes that “stopping local entities from coordinating with Border Patrol and ICE or the marshals makes it harder for them to do their jobs,” Dicker said. “So anything we can do to stop the deportation machine from working efficiently, we want to do.”
But canceling the contract was opposed by Las Americas’ Rivas, the head of the Catholic Church’s Diocesan Migrant and Refugee Services, and by the director of the Hope Border Institute, another Catholic group.
Rivas wrote to Escobar in July 2017. She told The Appeal and The Intercept that the letter spoke only for three members of the BIC. They supported the contract, Rivas’ letter said, “only because it keeps people close to this community, where their families and their lawyers … can have immediate access to them.” (Another member, the Border Network for Human Rights, also communicated to Escobar that they supported maintaining the contract for the same reason, but groups who went on the record as supporters were still a minority of the council’s membership.)
Escobar sent the letters to county officials. It’s not clear whether they understood that the BIC lacked consensus about the contract, but the letters offered a humanitarian rationale for keeping it. Rivas said she still thinks about what would happen if El Paso County did not have its contract with the U.S. marshals, and immigrants were sent to private prisons with terrible conditions.
One such prison, the West Texas Detention Facility, made the news last year after African detainees told immigrant advocacy groups that they were beaten, pepper sprayed, subjected to racial slurs and denied medical treatment at the facility, which is 90 miles from El Paso. Previously, it had been reported to be infested with wildlife, including a rattlesnake, and detainees had to use plastic bags for toilets. In 2016, Franco, of the federal public defender’s office, said that “Attorneys were having a very difficult time seeing their clients” because of rules that discouraged visits.
Another marshals contract facility, the Otero County Prison, 27 miles north of El Paso in New Mexico, has a history of being sued for providing inadequate medical care to a man detained there.
But under the El Paso County contract with the marshals, according to the sheriff, some detainees are being sent to those facilities despite their record of unconstitutional conditions. Sheriff Wiles told the County Commissioners in 2017 that when he needed jail beds for state detainees, such as people arrested for DWI on weekends, he told the marshals to remove federal detainees from El Paso. He assumed they were sent to the West Texas Detention Facility and to Otero.
Meanwhile, the El Paso County Jail has its own problems. In 2017 a Mexican held by the marshals for illegal re-entry hanged himself using a piece of cloth torn from his uniform. That same year, one of the jails in the El Paso system failed a state inspection after a detainee died because of a lack of medical attention and treatment. It was later discovered that jailers had falsified his records.
In light of such tragedies, as well as the illegal detention of Noe Ortiz and many other immigrants, Rivas said that El Paso County’s marshals contract is “worth revisiting” by the community.
The contract expired in December, and the county and the Marshals Service are now operating together on a month-to-month basis. The expiration garnered no publicity or community conversation.
Since his release from detention in October, Noe Ortiz has reunited with his family. They now live in the U.S. as they await government decisions about their asylum claims. Ortiz says he is happy, but still remembers the despair he felt in the El Paso County jail, where “it was cold all the time, the beans had sugar in them and were inedible, I could never see the sun, and I had no idea when I would get out.”
He hopes that publicizing his ordeal will change how officials act in El Paso. “They shouldn’t treat detained people like that,” Ortiz said. “I don’t want what happened to me to happen to anyone else.”