Terrorizing the Undocumented in El Paso

Editor's Note: This article has been updated to reflect new developments in the case.

After receiving judicial protection against her ex-boyfriend, U.S. citizen Mario de Avila, for domestic violence, undocumented Mexican national Irvin González was arrested by Immigration and Customs Enforcement (ICE) agents inside the El Paso County Courthouse on February 9, 2017. González’s arrest did de Avila a favor. On three occasions in the fall of 2016, González—an undocumented Mexican trans woman—alleged to El Paso’s police that de Avila beat her, according to an investigative file about González’s unprecedented arrest by federal agents. When González threatened to report de Avila to the police for abuse, he threatened her with deportation.

City police never arrested de Avila for his alleged abuse, notwithstanding González’s complaints between October and December last year, all confirmed as credible by the El Paso County judge who granted her protective orders on February 9. González’s formal attempts to protect herself led to her becoming the hapless victim of an immigration sting, after her abuser tipped off immigration officers.

The moment González left court with the orders, ICE agents pounced, taking her into custody for unlawful entry into the U.S. González had been deported on six other occasions prior to this arrest. Even so, nobody seems to have bothered to ask why a transgender woman would repeatedly seek to flee Juárez or counsel her about pathways to legal status. For example, the 1994 Federal Violence Against Women Act mandates that abused undocumented immigrants should receive a special U.S. visa, a legal requirement never afforded to González. It stands to reason she would want to leave Juárez, a city with a lengthy and sordid record of violence against women and LGBTQ people.

González’s case has shocked many, particularly advocates for victims and survivors of domestic violence. It raises particularly serious questions about what protections undocumented victims of crime can expect from law enforcement. Also at stake in González's arrest inside the courthouse is El Paso’s status as a sanctuary city for immigrants—and according to some measures, the city’s standing as “the safest city in the United States”—as politicians and elected officials from Texas and the U.S. government attempt to penalize local authorities who refuse to cooperate with federal immigration authorities.

But in El Paso, federal officers already have wide authority to act, thanks to drug war policies that prioritize drug prohibition and drug trafficking over all other issues. The sheer size and strength of federal law enforcement agencies in El Paso will only become greater under President Donald Trump, making the city an especially unsafe place for the undocumented.

This disturbing case carries another layer that no media outlet has reported: de Avila, a U.S. citizen, is a convicted international drug trafficker, sentenced last year to time served and two years’ probation. The federal justice system has given de Avila light treatment, sparing him from harshness as a cooperative U.S. citizen: the criminal complaint federal agents filed to document his drug trafficking reveals that de Avila does not hesitate to inform on his contacts. Meanwhile, the decades-long War on Drugs on the U.S.-Mexican border has jeopardized González’s safety and El Paso’s reputation as a safe city for immigrants. Examining de Avila’s criminal record brings this connection to light.

Various news outlets have reported that ICE agents knew where to find González, on the 10^th floor of the El Paso County Courthouse, due to a tip-off from de Avila. De Avila was actually in the County’s custody shortly before, between January 11 and January 27, on state charges for forging signatures on financial instruments. There is no reason to believe that de Avila, as a U.S. citizen, had contact with ICE beyond his August 2015 arrest for drug trafficking, or that ICE would be aware of his alleged financial forgeries. So it seems unlikely he would have been in contact with ICE to report González.

Besides, González was arrested by federal immigration agents from the Homeland Security Investigations/Border Enforcement and Safety Task Force (HSI/BEST). In a sworn affidavit from February 9 documenting González’s arrest, HSI/Best revealed it had known about Irvin’s whereabouts at a domestic violence shelter since February 2, 2017. But how would de Avila, who is 21, have known which agency to contact?

The ICE spokesperson in El Paso has refused to disclose who provided HSI/BEST with information on González’s whereabouts. ICE might be tight-lipped because Irvin’s arrest violates the Violence Against Women Act. Yet federal court documents suggest that U.S. Marshals may have learned about González’s whereabouts when they arrested de Avila for probation violations on February 2, 2017, just a few days after he was released from county jail on January 27. The crucial point of collision with González’s case is that the Marshals executed the federal warrant revoking de Avila’s probation on February 2—the same day HSI/BEST agents found out that González was at the domestic violence shelter.

In January 2016, the U.S. District Court in El Paso sentenced de Avila to two years probation for an August 5, 2015 attempt to import 39 kilograms of marijuana into the U.S. from Juarez on the El Paso del Norte Bridge. Federal law establishes that trafficking marijuana across the international border comes with a possible prison term of up to five years plus a financial penalty. For 39 kilograms of marijuana, de Avila struck a plea bargain with the U.S. Attorney in El Paso and seems to have received a light sentence of “time served” and two years of federal probation.

Why did de Avila receive such a sentence? Clues exist in the federal criminal complaint detailing de Avila’s arrest at the international bridge on August 5, 2015. The moment de Avila pulled up to the Customs and Border Protection (CBP) officer at the bridge, he told her “that he had previously been caught with a ‘joint’,” according to the officer’s report. This admission sent de Avila immediately to secondary inspection where a human/narcotic detector dog known as “Jack,” or “CK-75,” located 80 bundles of marijuana, weighing 39 kilograms, in de Avila’s truck.

Two federal agents, one from U.S. Homeland Security Investigations and another from CBP, arrived to arrest de Avila. Although an officer read de Avila his rights, immediately he waived them and told officers who his contacts were in Juárez, who supplied him with the marijuana, how much they would pay him ($900), and how often (twice a week) he would be traveling across the bridge into El Paso. He claimed to officers it was his first drug run but that he had been making practice runs for two weeks. The officers wrote he trafficked drugs “out of necessity, as he is paid less then [sic] minimum wage where he is employed.” After disclosing such details, de Avila provided the officers a written statement. The agents immediately told the U.S. Attorney in El Paso who agreed to prosecute; officers took de Avila to the county jail, where he stayed nearly five months, until his sentencing hearing at the end of January 2016.

De Avila’s drug trafficking arrest begins the paper trail of his relationship with federal law enforcement, according to public records from the U.S. Court for the Western District of Texas in El Paso. Every time de Avila has been accused of wrongdoing—whether trafficking drugs, breaking the terms of his federal probation by taking drugs, or when he was re-arrested for violating that probation—he has adopted a submissive, tell-all approach to law enforcement. The U.S. Probation Officer assigned to supervise de Avila submitted a report to the U.S. District Court on July 29, 2016, which stated that de Avila tested positive three times for cocaine in July. (Until a subsequent report of January 2017, the probation officer omitted to tell the Court that he actually began to test positive in May 2016).

The U.S. probation officer wrote in July 2016 that de Avila knew his “violation behavior” was “serious” but that he “was remorseful and realizes his behavior was irresponsible and acknowledged that his drug usage is a violation of his federal supervision.” The officer also wrote that de Avila knew that “no further violations would be tolerated.” Even so, the probation officer helped de Avila find housing in a federally funded halfway house where the Court ordered him to live in the fall of 2016. On November 30, 2016, even though a drug test showed de Avila tested negative for the synthetic drug Spice, he “admitted to this probation officer to using spice [sic] while in the halfway house.”

By late January 2017, the U.S. Probation Service had finally learned—perhaps from an El Paso Police detective—of allegations that de Avila had been stealing from the U.S. mail and forging signatures on financial instruments. There were 13 charges against him. But the U.S. Probation Service had bungled their supervision of the convicted drug trafficker, failing to revoke his federal probation for drug use and financial forgeries until after he left county jail by posting bond on January 27. U.S. Marshals did not re-arrest de Avila in El Paso until February 2, 2017, at which moment we can infer that he told federal agents about González. De Avila always threatened that he would turn González in to federal immigration agents if he were arrested, according to González’s testimony.

De Avila’s physical abuse of González included punching, pulling her hair, pushing her to the ground, attempted asphyxiation, and ultimately assault with a knife. On one occasion, de Avila’s violence took place before two children González cared for. She survived each assault, but in their final fight on December 18, 2016, de Avila ended up throwing a knife at his girlfriend after chasing her around a fountain located outside their residence. U.S. probation officers never reported de Avila’s abuse to the U.S. District Court. Though it’s possible they weren’t aware of the charges, González’s allegations of intimate partner violence date back to October, shortly after de Avila moved into the halfway house. HSI/BEST agents certainly knew she would be at the courthouse on February 9, and why. Instead of focusing on de Avila, federal agents instead sought González’s arrest for an immigration violation.

Why then, did federal authorities prioritize the arrest of González for her undocumented status over de Avila, an international drug trafficker with a clearly violent record? I argue that the answer lies in the fact that El Paso, Texas, serves as ground zero of the drug war, a place where locally unaccountable federal law enforcement agents prioritize the drug war over protecting victims of domestic violence. In this case, de Avila seems to have cooperated sufficiently with law enforcement by serving as an informant to the police, perhaps resulting in probation rather than a custodial sentence.

“International drug trafficker” might sound like a grand title for de Avila, but in El Paso, Texas, there’s a steady stream of illegal substances making their way across any of the four bridges from Juárez. Low-level traffickers, like de Avila, drive drugs across in used trucks, recently purchased and with clean titles.

De Avila’s arrest by U.S. Marshals for violating terms of federal probation jeopardized González’s precarious foothold in El Paso. And that arrest would not have been necessary if the U.S. Probation Service had moved more swiftly to revoke de Avila’s probation in the first place—notably, the probation officer knew de Avila had tested positive for cocaine in May 2016, more than six months before his subsequent re-arrest. The U.S. Probation Service and the U.S. District Court documented de Avila violating his probation terms repeatedly through 2016. In addition to his probation violations because of drug use, he was only arrested for his financial forgeries after his thirteenth documented charge.

Why did it take federal officers, a federal judge, and city police so long to arrest de Avila, if they knew he had been violating parole since May 2016? While he was on federal probation, he took drugs, allegedly stole, and allegedly beat his girlfriend. And yet she sits at risk of deportation. González, an undocumented, transgender, Mexican woman and abuse survivor, ranks lower in the federal government’s priorities when it comes to so-called “threats” to national safety than her abusive U.S. citizen boyfriend. Now, she is being accused of being the master-mind of de Avila's money-laundering scheme, and could be indicted, according to The Guardian.

Meanwhile, de Avila had a court date on March 1 in the U.S. District Court in El Paso after being held in the county jail since February 2. Though it seemed likely de Avila would be sentenced to time served, beyond the time he's spent while awaiting his trial, he received another slap on the wrist: once again adopting a tell-all, submissive approach to the charges, his probation has been reinstated and he's been ordered to attend drug and mental health counseling, and to complete his GED, though its unclear who will pay for it. The government's refusal to sentence de Avila to any significant amount of prison time despite credible dometic abuse charges, financial forgery, and illicit drug use, suggests there's more to the story. The information he provides must then, be of some value.

González’s treatment by federal authorities shows that sanctuary cities—like El Paso, Texas—are extremely vulnerable to aggressive drug and immigration enforcement activities by federal authorities. The case also demonstrates that undocumented victims of domestic violence are especially vulnerable in El Paso, because federal authorities are more interested in prosecuting the drug war than protecting domestic violence victims. In so doing, officials have ignored the Violence Against Women Act and its provision of special visas for abused undocumented immigrants. Irvin’s treatment by federal authorities is exemplary of the weakness of jurisdictions that assume courthouses can be sanctuaries for undocumented crime victims.

González's arrest is about the end of El Paso as a sanctuary city for undocumented immigrants, irrespective of what well meaning, yet naïve, local officials say. It is a story about how the drug war still rages, and how the federal government will always win out over county and city authorities, making the most vulnerable increasingly vulnerable to federal law enforcement.

Patrick Timmons is a journalist and international human rights lawyer who lectures in History at El Paso Community College. His article about threatened Mexican journalist Noé Zavaleta appeared at NACLA.org in September 2016.