CREDIBLE FEAR:

Laura Peña could see that her 36-year-old client was wasting away. Gaunt and haggard after nearly two months in jail, he ran his fingers through his hair and opened his hands to show her the clumps that were falling out. He was so distraught that his two young children had been taken from him at the border, he could barely speak without weeping.

After Carlos requested political asylum, border and immigration agents had accused him of being a member of the notorious MS-13 gang in El Salvador -- a criminal not fit to enter the United States. But as Peña looked at him, she saw none of the typical hallmarks of gang membership: the garish MS-13 tattoos or a criminal record back home. He was the sole caregiver for his 7-year-old son and 11-year-old daughter. He'd even brought an official letter from El Salvador's Justice Ministry certifying that he'd never been in jail. Something else about his case bothered her, too: She'd been peppering the government's lawyers with phone calls and emails for weeks and they'd yet to reveal any evidence to back up their accusation.

Unlike most attorneys working pro bono to reunite families, Peña was familiar with MS-13, because she'd pursued the deportation of gang members as a trial attorney for Immigration and Customs Enforcement. She understood how the system worked, because she'd been a part of it. Her long tumble of curly hair, which makes her look younger than her 37 years, is paired with a forthright-bordering-on-blunt manner of speaking forged from her years as a prosecutor on the front line of the immigration debate. She was empathetic toward the plight of clients like Carlos, whose last name is not being used for his protection. But she was also unwilling to give any of them false hope. If Carlos was a gang member, his chance for asylum was zero.

"There has to be a mistake," Carlos insisted that December day from behind the scratched plexiglass wall in the visitor's room at the jail. "Please help me." Looking at him, Peña wanted to help. But the system she'd once known, as flawed as it was, had turned into a black box she no longer understood, with an ever-shifting array of rules and policies that granted untold discretion to the government. She couldn't even get ICE attorneys to comply with a fundamental tenet of a fair system: providing proof of their case, evidence they could fight against.

To Peña and her colleagues, cases like Carlos' signaled a troubling new era. Years of legal precedent had been swept away by Trump administration efforts to push through evermore harsh immigration policies like family separation. Then, when the courts pushed back and the policies were publicly rescinded, the administration discovered new ways to quietly continue them. She and her colleagues were counting hundreds of new cases of family separation along the border that occurred after the "zero tolerance" policy supposedly ended in June 2018. But no one could track what the government was doing with every case.

Now here was Carlos, who simply looked like a grief-stricken dad. Peña had been skeptical of him at first. When they'd met in November 2018, all she knew was that he was considered such a threat that ICE and Customs and Border Protection had put him in the wing of the Laredo, Texas, jail designated for violent offenders. She'd used her ICE training to poke at his story, searching for inconsistencies, signs he was lying. "Trust but verify" was her guiding principle. She'd gone over his background with him multiple times, his story about why he'd fled El Salvador and his former life as a warehouse manager for an architectural design company. She'd made him retrace his story over and over until she was satisfied.

As a pro bono attorney working for the nonprofit legal group Texas Civil Rights Project, Peña had a growing stack of cases on her desk. She'd spent the last six months monitoring "zero tolerance" prosecutions at the courthouse, searching for unlawful separations. Her mandate was simply to reunify Carlos with his children. He was luckier than most; he had her asking questions on his behalf. The majority of migrants who are arrested at the border never see a lawyer, let alone understand how to fight the allegations against them. Carlos was one drop in a river of cases.

But something about his case made her want to dig deeper. What wasn't the government telling them?

Tweet   @brothersjudd