UC Law Constitutional Quarterly


Sergio Garcia


President Donald Trump’s policy of separating families at the border, known as Trump’s “Zero Tolerance Policy,” was piloted in El Paso, Texas in 2017. Under Trump’s policy, the government separates asylum-seeking parents from their children in order to create “unaccompanied minors” and then prosecute parents. Trump’s policy is standard practice along the nation’s southern border. However, Trump’s prosecution and conviction of asylum–seeking parents violate the constitutional criminal law principles and constitute outrageous government conduct. For example, consider the cases of asylum-seeking parents Elba Luz Dominguez–Portillo, Natividad Zavala–Zavala, Jose Francis Yanes–Mancia, Blanca Nieve Vasquez– Hernandez, and Maynor Alonso Claudino–Lopez (collectively referred to as the “El Paso 5”).1 Under Trump’s policy, the government separated the El Paso 5 from their minor children, and then prosecuted the El Paso 5 for petty misdemeanor illegal entry despite their expressed fear of persecution in their home countries. In doing so, the government violated the El Paso 5’s constitutional rights.

There has been tremendous public outcry against the “Zero Tolerance Policy.” As a result, President Trump signed an Executive Order on June 20, 2018 to reunite families that were separated under his policy.2 However, the order was issued too late to benefit the El Paso 5 because they were already tried and convicted, and four out of the five had been deported without their children. These and other parents have suffered permanent damage. The American Civil Liberties Union (“ACLU”) raised constitutional issues on behalf of parents in other family separation cases in a civil law context. In Ms. L. v. United States Immigration and Customs Enforcement (“ICE”), the ACLU brought a class action lawsuit in California seeking to reunite parents separated from their children in family separation cases.3 However, the El Paso 5 cases differ because they are the first parents to raise constitutional violations in a criminal context. The El Paso 5 cases were tried in the magistrate court, and the parents were found criminally guilty for illegal entry. They appealed their convictions to the district court which affirmed the magistrate court’s decision, and then appealed the district court’s decision to the Fifth Circuit Court of Appeals. Their criminal convictions were then affirmed by the circuit court.4 This article argues that the criminal prosecution and convictions of asylum-seeking parents under the “Zero Tolerance Policy,” like those of the El Paso 5, violate constitutional criminal law principles and constitute outrageous government conduct.