Affidavit detaining violence victim disputed
AUSTIN — El Paso County officials said Thursday that federal agents made false or misleading claims in an affidavit used to arrest an alleged victim of domestic violence.
In dispute is whether a transgender woman who had just gotten a protective order was arrested on the street as a U.S. Border Patrol Agent claimed, or whether agents detained the woman just outside protective-order court as county officials claim. El Paso leaders and victims' advocates fear the presence of immigration officials will discourage victims from seeking protective orders.
Court documents filed by the federal government state that agents with the Homeland Security Investigations Border Enforcement Security Task Force detained Irvin Gonzalez, 33, outside the courthouse on Feb. 9. The arrest happened just after Gonzalez obtained a protective order against her live-in partner, Mario Alberto de Avila.
“At approximately 9:30 a.m., (federal agents) observed Gonzalez exiting the El Paso County Courthouse and proceeded to walk along the sidewalk along San Antonio Ave.,” said the affidavit, sworn to by Border Patrol agent John P. Urquidi. Federal “agents approached Gonzalez and identified themselves as U.S. Border Patrol agents and questioned (her) as to (her) citizenship and immigration status. Gonzalez admitted to being a Mexican national with no immigration documents allowing (her) to enter, be or remain in the country legally. Gonzalez was taken into custody and transported” to a U.S. Immigration and Customs Enforcement facility.
Surveillance videos released by the county contradict the account.
El Paso County Attorney Jo Anne Bernal said her office believes a federal agent was present during the court proceeding and a second agent waited at the door. Bernal said her office received reports that an additional four agents were on the same floor as the protective-order court.
Lucila Flores Camarena, supervisor of the County Attorney’s Protective Order Unit, said she accompanied Gonzalez and her advocate into a jury room just outside the courtroom and warned the advocate of the presence of federal agents, who were in plainclothes. When the three emerged into a back hallway, two agents approached Gonzalez and, in Spanish, inquired about her name and immigration status, Flores Camarena said.
“After she responded, one of them put his hand on her elbow and walked her out,” she said.
The videos, taken from various cameras in the courthouse, show two men in casual clothes and jackets entering the courthouse through metal detectors at 8:38 a.m. The men showed ID to a sheriff's deputy, then took the elevator to the 10th floor, where judges hear requests for protective orders from domestic violence victims.
About an hour later, videos show the men holding a woman by the arm as she exits the courtroom, followed by her advocate and Camarena from the County Attorney's Office and another lawyer.
They took an elevator down to the first floor and walked her outside, where at least two other agents were waiting by an SUV. The men eventually put the woman in the back seat of the SUV, the video shows.
El Paso County Judge Veronica Escobar said the claim made in the affidavit is at best misleading.
"I knew what the truth was when every witness – the lawyers and the judge – said that ICE was there," she said Thursday afternoon. "Then the video left absolutely no room for doubt."
"You see his hand on her arm. She was not free to go. She was in his custody. It's very disconcerting that the representation was made in the affidavit that it did not happen in the protective order courtroom," Escobar said.
The Feb. 9 incident, which was first reported by the El Paso Times on Wednesday, has drawn national and international attention.
ICE officials did not respond directly to questions about the incident Thursday.
"On Feb. 9, task force agents assigned to Homeland Security Investigations (HSI) El Paso’s Border Enforcement Security Task Force (BEST) arrested Irvin Gonzalez, aka Ervin Gonzalez, on a felony charge of illegally re-entering the United States after having been previously deported," ICE spokeswoman Leticia Zamarripa said in an email. "Agents arrested Gonzalez after receiving a tip from another law enforcement agency indicating that a previously deported felon had illegally re-entered the United States."
Zamarripa said agents were acting on a tip from another law-enforcement agency about Gonzalez, whom they believed had re-entered the United States illegally after being deported several times.
Zamarripa didn't respond when asked which police agency provided the tip.
A criminal-justice expert said not telling the truth in federal affidavits is serious business.
"Affidavits are filed under penalty of perjury," said Peter J. Henning, a law professor at Wayne State University who has worked in the Criminal Division of the U.S. Justice Department. "Judges will get quite upset if they believe they've been misled intentionally or unintentionally."
Henning said there are few cases in which federal agents have been prosecuted criminally for filing false affidavits. However, Henning said, Gonzalez's attorney is likely to raise the matter in court.
Andrew Lafayette Steed, the federal public defender assigned to Gonzalez's case, could not be reached Thursday.
Gonzalez called police three times in late 2016 alleging that De Avila punched and kicked her and chased her with a knife, Bernal said. Gonzalez was living at an El Paso shelter when she sought the protective order, the ICE affidavit said.
Victims’ advocates with the county and elsewhere said they were stunned that federal agents would, in effect, violate the sanctity of a protective-order court, where victims of domestic violence already are reluctant to go. They fear that in cities with large immigrant populations such as El Paso, the presence of immigration officials will drive many domestic violence victims back into the arms of their abusers.
“My concern is that this whole thing happened in the courthouse and the chilling effect it could have, discouraging other victims from coming forward,” Flores Camarena said.
Marty Schladen can be reached at 512-479-6606;mschladen@gannett.com; @martyschladen on Twitter.