Brewster County, Texas, Sheriff’s Department

In recent years, the number of people federally charged with smuggling and harboring has jumped nearly a third.

Just before 10 p.m. on a Wednesday in February, Teresa Todd was driving near Marfa, Texas, when she saw two figures waving at her to stop. She did stop, and she discovered that the people asking for help were undocumented brothers in their early 20s, from Central America. They pointed to their 18-year-old sister, Esmeralda. She was on the ground and could barely walk.

Todd is the county attorney for Jeff Davis County, a vast expanse of mountains, cactus, and 2,500 residents—as well as undocumented migrants hiking and stumbling north from the U.S.-Mexico border. She’s also the city attorney for Marfa, in neighboring Presidio County.

The three siblings had just walked 65 miles in eight days. For the past two days, they’d had no food or water. Esmeralda was in terrible shape and would later be diagnosed with rhabdomyolysis, a life-threatening condition that develops when a person’s muscle tissue dies. It can be caused by overexertion and dehydration.

Todd put the siblings in her car and—according to her attorney, Liz Rogers—called two friends, a Border Patrol lawyer and a lawyer who works with ICE, to ask how to help the immigrants.  

Todd didn’t know that just before she came upon the siblings, other passersby had called 911. A Presidio County deputy sheriff responded, saw Todd’s car, and determined that her passengers were undocumented. Border Patrol also arrived and apprehended Esmeralda and her brothers. Todd became a suspect in an investigation into the possibility that she had broken a federal law against “bringing in or harboring certain aliens.”

Todd was briefly detained and then freed, but could still be indicted. Presidio County Sheriff Dan Dominguez has taken a hard rhetorical line against her, intimating that Todd should be prosecuted. “If you commit a felony,” he told a local TV station, “whether you’re trying to help the person or not, you can’t break the law.”

Rogers has advised her client not to speak to the press. Todd’s sole public comment before she went silent was, “It’s a tough time to be a Good Samaritan.”

Todd could be right. From fiscal years 2015 to 2018, the number of people federally charged with smuggling and harboring jumped almost a third, from 3,441 to 4,532. Most of the increase occurred in fiscal year 2018. That’s the year after the Trump administration told prosecutors to focus on the “harboring” statute and to charge people alleged to have violated it with as few as three undocumented immigrants per incident. (Earlier, the minimum was five immigrants.)

A few months after the directive was issued, in summer 2017, Arizona activists working to save lives in the desert by giving or leaving migrants food and water, were arrested and later convicted of felonies and misdemeanors. A Texas driver during the same period was arrested and threatened with prosecution for smuggling and harboring after she gave two migrants a ride. And now Teresa Todd is under threat of indictment after she tried to help a desperately ill girl and her brothers. In each of these cases, it seems as if law enforcement is intent on chilling a basic human impulse: to help people in need.

The Appeal is not publishing the last name of Carlos, 22, Francisco, 20, and Esmeralda to protect their family from retaliation in El Salvador. Here in the U.S., the three siblings are seeking asylum. In El Salvador, the young men were bakers and their sister was a hairdresser and acrylic nail specialist.

They fled the country together, Esmeralda told The Appeal, because “a leader of the Calle 18 gang in our neighborhood decided that he wanted me to be his woman. I refused. My brothers refused. In February, I was walking down the street and I was thrown into a car. The gang leader was in it. He pulled a machete on me and touched me in every part of my body.”

Esmeralda screamed and a passerby on the street told the gang leader to let her go. She escaped. But the leader then “beat one of my brothers and said that if he and my other brother didn’t join the gang and help kill people—and if they didn’t hand me over to the leader—they would be killed and so would I.”

Within hours after these alleged assaults, Esmeralda said she and her brothers threw some belongings together and fled from El Salvador in the dead of night. They moved so fast that they did not even tell their mother they were leaving. They headed through Guatemala and Mexico and reached the southern U.S. border.

Esmeralda was the only woman among the 10 people, including her brothers, who crossed the Rio Grande at Presidio, Texas. The group began hiking, and as they advanced northward, Esmeralda said, her legs started hurting her terribly. She had trouble keeping up, and after six days, the group abandoned her, with the exception of her brothers. After that, they had no food or water at all, and Esmeralda’s condition worsened. She could no longer walk. She felt certain that she was dying.

Rogers thinks Esmeralda would have perished without her client’s help, which led to quick hospitalization. “Picking up somebody in distress is not a crime,” Rogers said.

Federal public defender Chris Carlin agrees. He was appointed to represent the family for their criminal charges of illegal entry. “I’ve lived here about 20 years,” he told The Appeal. “It’s common for people to stop and help other people. I’ve been broken down in West Texas myself. And I’ve stopped and helped people.”

In South Texas in 2017, similar punitive enforcement was aimed at a young woman who lives near the border. One afternoon, she went to a gas station to fill her tank for a trip to buy diapers for her baby at a Sam’s Club a few hours away. A man and a teenage boy approached her and asked if she would give them a ride. She said yes.

The woman, who requested anonymity, volunteers with local charities. She has a reputation for altruism, and used to regularly give an elderly neighbor rides to the grocery store.

But after she left the gas station, she was stopped by a Texas state trooper, ostensibly for failing to signal a lane change. The passengers turned out to be undocumented Guatemalans, and the agent called Border Patrol. He rebuked the woman with comments such as, “You’re telling me that two men you’ve never met in your life just approached you … and you let them hop in the vehicle with you?” She was arrested. She was not charged but was held for six hours before being freed. “I will never give anyone a ride again,” she told this reporter. “Not even my neighbor. I don’t know if she’s undocumented or not.”

Some Samaritans lately have met harsher fates. In Arizona, Scott Warren, a college professor, was charged in January 2018 with felony harboring after he gave food, water, and shelter to an undocumented migrant who was crossing through the desert. From late 1998 to 2017, some 7,000 people died while trying to traverse the border, and Warren was working with No More Deaths/No Más Muertes, an Arizona group that tries to keep more people from perishing.

Also in January, four other No More Deaths/No Más Muertes members were convicted of misdemeanors, after they drove into a national wildlife refuge and left food and water there.

Back in West Texas, Teresa Todd is still waiting to see if a grand jury will indict her. The Appeal asked the U.S. Attorney’s Office for the Western District of Texas if an indictment is forthcoming, but a spokesperson declined to comment. Meanwhile, Carlos, Francisco, and Esmeralda remain locked up. The brothers are being held as material witnesses against Todd; Esmeralda is in an ICE detention center.  

Courtesy of the family

Esmeralda hopes to win asylum in America and make a new life, including returning to school. Her brothers say they were asked to sign documents written in English, which they did not understand, immediately after they were rescued and were still disoriented. ICE has since told them that they agreed to be deported.

None of the siblings has an immigration attorney, and their hopes for asylum are at grave risk.

But Esmeralda is alive, and physically little the worse for wear except for scars from the cactus scratches and punctures she sustained before her legs completely gave out. Her brother Francisco recalled the hours after that happened, and the pitch-black desolation of a West Texas road at night. “We kept waving for help,” he said, “but the cars kept passing.”

“Then the lady stopped,” Francisco said. “And first, we thank God that my sister lived.”

“First, God,” Esmeralda agreed. “And then I thank the señora.”