Is Helping Migrants A Crime In The Friendship State?
By Robert Halpern, Big Bend Sentinel
The lives of three young siblings from El Salvador and Jeff Davis County Attorney Teresa Todd came together on the highway between Marfa and Fort Davis last week, setting up a legal issue whether citizens can help the growing number of undocumented Central American migrants making their way in the Davis Mountains and Big Bend Country or in
doing so is breaking the law.
Todd said she was simply helping three persons on the roadside that night, but Presidio County Sheriff Danny Dominguez has said she broke the law. The matter is under investigation by the U.S. Attorney’s office.
“It’s a tough time to be a Good Samaritan,” Todd said in her only comment to the media, and referred any contact about the matter to her Alpine defense attorney Liz Rogers.
The El Salvadorans, Carlos Saul Orellana-Lazo, 22, Francisco Esteban Orellana-Lazo, 20,
and their sister, 18-year-old Esmeralda Sarai Orellana-Lazo, had crossed the border somewhere in Presidio County on February 19, according to federal court records, and had wandered for eight days before their lives converged with Todd’s on February 27. Esmeralda appeared in need of medical attention.
At 9:44pm last Wednesday night, a Presidio County Sheriff’s Office dispatcher took a 911 call from a woman (not Todd) who reported a young man in need of assistance near the Presidio-Jeff Davis County line on Texas highway 17. She told the dispatcher she didn’t stop because she was alone in her vehicle.
Deputy Sheriff Mitch Garcia headed that way. Meanwhile, Todd, on her way home to Fort Davis, encountered the siblings. A Border Patrol unit radios the dispatcher that they’re on the way, too.
Dominguez said the deputy didn’t observe anyone on the highway, but spotted a vehicle
leaving the scene. Garcia initiated a traffic stop to see if the vehicle had stopped to assist the person who was seen on the highway. As he approached the vehicle, he realized the driver was Todd, who also is the City of Marfa attorney
“Further investigation determined that Todd had picked up three undocumented individuals who had been walking on the roadway and was attempting to
leave the scene with them in her vehicle,” Dominguez said. “Knowingly transporting undocumented individuals is a felony federal offense.”
Todd and the El Salvadorans are released to the Border Patrol. “To the best of our knowledge, Todd was held at the Border Patrol station for less than an hour
and released at about 12:30am,” Dominguez said.
At some point, Esmeralda is transported to Big Bend Regional Medical Center in Alpine where she was admitted for several days and then released into the custody of federal authorities.
Rogers said she visited Esmeralda at the hospital last week and she was “in terrible shape,” suffering from intensive dehydration and exposure. “I was shocked when I saw her.”
The brothers on Monday were charged with illegal entry and are in custody at a detention facility in Sierra Blanca, said Chris Carlin, the supervisory assistant federal public defender in Alpine who is representing them in court.
Esmeralda was expected to make her initial appearance in U.S. Magistrate Court in Alpine on Wednesday. Carlin said the brothers have been admonished that they may also be held as material witnesses in the Todd case, but that case apparently hasn’t been filed.
“In a typical kind of case, I would advise my clients of their rights,” Carlin said. “In this case, because they were admonished as material witnesses, I actually set them a trial date because there really is no advantage to them entering a plea if they’re just going to be held in jail for some other matter.”
But Todd’s case has yet to appear. “I don’t have a criminal complaint associated with that,” Carlin said.
“Normally when they come into court and are held as a material witness the government presents a charge that it relates them to. It was unusual yesterday because they
were not presented a charge. I thought that was kind of unusual. In my experience that’s very unusual. I’ve never seen that before.”
Migrants can’t be held indefinitely, Carlin said. Under the law, the government can only hold a material witness for a set duration of time. Under the local rules that pertain to the Western Federal District of Texas, the maximum that somebody is supposed to held is 45 days. The brothers’ trial is set for April 1, which is less than 30 days.
“The brothers were both criminally charged but the docket also said they would be held as material witnesses,” Carlin said. “If you’re being held as material witness it’s ostensibly to be testifying on a particular matter. If it pertains to the thing you’re being prosecuted then you can’t be compelled to be a witness against yourself. They’re either going to charge the person or hold them as a material witness but they’re not going to do both. Their testimony cannot be compelled if it relates to the charges with which they are charged.”
Rogers said the Alpine offi ce for U.S. attorney has handed Todd’s case to its staff in Del Rio. But “stopping and rendering aid is not illegal,” she said.
It’s a Far West Texas tradition to help someone in need on the area’s rural roads, Rogers said, noting that ranchers have been giving food and water to passing migrants for years. “That’s what West Texans do.”
In her client’s case, Rogers said, “A young woman was taken to the hospital. Teresa thought they were kids needing help, and she took steps to help them.”
For Rogers and Todd, it’s now a waiting game, on the federal prosecutors’ investigation, and what, if any, action might be taken by a federal grand jury that meets
“She committed a crime,” Dominguez said of Todd. “Transporting illegals . . . that is a felony.”
He was also critical of the government. “The feds can’t have a double standard,” he said. “Border Patrol released her at midnight. Had it been Joe Blow, they would have been taken to jail. They (federal authorities) can’t choose who they prosecute, regardless of who you are, if it had been somebody else, they would still be in jail.”
Rogers has another view of her client. “What Teresa did was kind of heroic.”
Reporters Abbie Perrault and Rosario Salgado Halpern contributed to this report.