Migrants Were Set Up by Border Patrol Cops for Trespassing Before Arrest

By Jolie McCullough, The Texas Tribune

Charges have been dropped against 11 migrants arrested under Gov. Greg Abbott’s border security initiative after the men told attorneys they were marched for about 20 minutes to a fenced ranch by law enforcement, then arrested for trespassing.

Without video evidence or a written report of the August incident from U.S. Border Patrol, Val Verde County Attorney David Martinez dismissed the trespassing charges Monday after the men had spent nearly two months in state prison.

The men had fled on foot after a highway traffic stop by Border Patrol agents, according to an arrest affidavit. The migrants later told attorneys that when found near the highway, officers made the migrants walk for about 20 minutes and climb, hands zip-tied, over a nearly 10-foot fence onto a ranch before they were arrested for trespassing by state troopers.

The migrants also said officers cut the Val Verde County landowner’s fence so a police dog could get onto the ranch property, a defense attorney and prosecutor told The Texas Tribune.

A Texas Department of Public Safety spokesperson said the migrants’ claims were inaccurate, stating that the fleeing men jumped a fence onto private property. A Border Patrol spokesperson said any suggestion that officers led migrants to private property so they could be arrested for trespassing is “absolutely false.”

But the muddled situation is just one instance in which Martinez, a Democrat elected to prosecute misdemeanor cases, said he felt compelled to drop charges because of uncertainty over whether DPS arrests pass legal muster. In September, a Venezuelan man crossed the Rio Grande near Del Rio with a married couple and walked up to an open gate attended by state troopers, Martinez said after his office reviewed body camera footage of the encounter. The officers moved aside to let the migrants walk through and then arrested the single man for trespassing. The couple was referred to Border Patrol.

“The troopers could have easily said, ‘Hey, this is private property, you can’t come on.’ But they moved out of the way seemingly as an invitation,” Martinez said.

Martinez rejected the case Monday. DPS declined to comment on the arrest.

The cases are examples of the more than 100 trespassing arrests under Abbott’s “catch and jail” border security directive that Martinez has dismissed or rejected. The prosecutor has tossed 123 of 231 trespassing cases brought before him by DPS since July, Martinez said at a legislative hearing Monday. So far under his prosecution, 58 men have pleaded guilty to trespassing and been sentenced to 15 days in lockup.

Typically, men whose cases are dropped are released to U.S. Customs and Border Protection for immigration processing in Del Rio. Others who are convicted of trespassing are taken into custody by U.S. Immigration and Customs Enforcement, having already served their 15-day state sentences. In both situations, federal authorities can deport the men or release them into the United States pending asylum hearings.

Since Abbott ordered state police to begin arresting migrants suspected of having crossed the border illegally for the state crime of trespassing on private property, DPS has arrested about 1,300 migrants on the charge, the agency director reported. The men, picked up almost exclusively in Val Verde and Kinney counties, are jailed in state prisons retooled as immigration jails.

The quickly assembled system of arrests, detentions and releases of migrants has been plagued by missteps since its onset, including families being improperly separated, violations of due process, and a lack of coordination among federal, state and local officials.

In a legislative hearing called out of concern over legal blunders in Abbott’s arrest initiative, DPS Director Steve McCraw told lawmakers Monday that the people his officers arrest for criminal trespassing are trying to avoid law enforcement, not seek asylum.

“When we talk about criminal trespass, it’s that they’re paying coyotes, they’re paying cartel operatives, smugglers to move around and through to avoid being detected,” McCraw said.

In Kinney County, a rural, conservative region next door to Val Verde, many of the hundreds of migrants jailed for allegedly trespassing are arrested at a remote depot as they arrive on train cars from the border.

In Val Verde County, home to Del Rio, however, Martinez said the vast majority of the cases he tosses out are those in which he learns that the arrested migrants had credible asylum claims and were looking for law enforcement to turn themselves in. He has said he began dropping such cases after he heard McCraw tell lawmakers in August that police aren’t looking to arrest asylum-seekers, but are instead targeting dangerous criminals.

Other times, Martinez has thrown out trespassing charges for insufficient evidence or questionable circumstances surrounding the arrests, like the cases he tossed Monday. A defense attorney told lawmakers Monday that the incidents are not unique.

“We have heard reports and several of our clients have recounted that they are actually called over onto the river onto private property,” said Kristin Etter, whose organization, Texas RioGrande Legal Aid, represents hundreds of the arrested migrants.

In the case of the 11 men who said they were escorted to another property and made to climb the fence onto a ranch, Martinez said he didn’t have a report from Border Patrol officers, who reportedly initiated the stop and apprehended the men after they fled. Without it, he wasn’t sure if the property where the men were first apprehended was the one listed in the report provided by DPS. If the cases moved forward in court, he said, DPS would be unable to testify where the men were first detained.

“I did not have any way to prove where these people were apprehended because we did not have a supplemental report from Border Patrol, so there was a lack of evidence,” Martinez said.

According to a DPS arrest affidavit, the men fled Border Patrol officers during an August traffic stop and jumped a fence onto a local ranch whose owner previously agreed state police could arrest people for trespassing on the property. At least one of the men was found by a Border Patrol dog handler, the affidavit said, and DPS responded to the chase and arrested the men.

Border Patrol reported Tuesday that after more than a dozen men fled on foot from a highway traffic stop into private property, federal agents took custody of the driver and two other people, while DPS arrested the other 11 men.

Martinez and Etter, who represents the men, said the migrants told them the fleeing men had hopped over a small fence bordering the highway, but, when found, were zip-tied and escorted by law enforcement to another property and made to climb a fence. Martinez said he was told that Border Patrol led the men onto the other property, and DPS requested that the men be brought back over the fence again where they were arrested.

Etter said it was unclear if the land the men were originally found on was public land.

With their cases dismissed, the men were expected to be sent back to Val Verde County and handed over to CBP officials for processing, Etter said Tuesday. The Venezuelan man whose case was rejected by Martinez on Monday is also expected to be transferred to CBP.