The story was first reported in an exclusive from the Houston Chronicle. ABC13's Jonathan Bruce took a closer look and spoke with immigration lawyers representing clients at the border, Texas Department of Public Safety, and Chronicle's Washington D.C. correspondent, Ben Wermund, about the reporting.
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Most of the fathers are being arrested on minor trespassing charges by DPS. They're then put into the state jail, while their families go through federal border processing. It's all happening near Eagle Pass, now the hot spot in Gov. Greg Abbott's border battle.
Kristin Etter, immigration attorney and special project director with Texas RioGrande Legal Aid, said the arrests started happening in a concentrated period in mid-July and that she has at least 26 clients who have been separated. She believes many more fathers have also been pulled from their families unwittingly.
"It was clearly a policy change that we saw happening on the ground and something that we hadn't seen prior to (July 10). We hadn't even really started to flag this as an issue until pretty recently, because we saw such a pattern," Etter said.
According to the Chronicle and Etter, trespassing arrests at the border have happened previously on private land. But part of the recent shift is migrants are now being arrested on what has long been considered public property in Shelby Park, on an ownership technicality. (Read here for more on the Shelby Park controversy in Eagle Pass).
And it has been a longstanding Texas enforcement policy to not separate families unless all of the males under arrest were over 18. Etter says the biggest issue is that her clients are willfully giving themselves up to agents they believe to be Border Patrol, for the purposes of seeking legal asylum. Instead, they're separated by DPS, with assurances they'll be reunited.
"(The migrants) believe up until the arrest that they're dealing with Border Patrol. And then at that point, they realize they're not when they're arrested for state trespassing charges and separated from the families," Etter said.
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Chronicle reporter Ben Wermund spoke to a migrant woman now in Philadelphia, who still hasn't seen her partner.
"In at least one of the cases, the woman that we spoke to said directly that she felt like she was lied to by the officers there," Wermund said.
DPS declined an interview with ABC13 but issued the same statement given to ABC News and the Chronicle, acknowledging that the arrests were happening: "There have been instances in which DPS has arrested male migrants on state charges who were with their family when the alleged crime occurred. Children and their mothers were never separated, but instead turned over to the US Border Patrol together."
It is unclear what caused the policy shift, or if it was an official directive by DPS or the state. Gov. Abbott and state officials have not commented on the arrests beyond the official statement from DPS. But they come as Abbott has upped the ante recently in Operation Lone Star, the state's border security initiative, with barbed-wire buoys in the Rio Grande River near Eagle Pass - a matter currently under a lawsuit by the U.S. Department of Justice.