Arrests of people for harboring, sheltering, leaving food and water or otherwise protecting migrants have been on the rise since 2017, when then-Attorney General Jeff Sessions ordered federal prosecutors to prioritize cases covered under the harboring statute.
Scott Warren, a 36-year-old college geography instructor from Ajo, Ariz., works with a group called called No More Deaths or No Mas Muertes. The group's volunteers leave water and food for migrants traversing the Arizona desert.
Warren was arrested in 2017 and faces three felony counts including conspiracy to transport and harbor migrants. In its complaint, the government claims Warren was seen talking to two migrants who sheltered in Ajo. He denies being part of any sheltering plan.
"It is scary to be intimidated like this and to be targeted but there really is no choice," said Warren. He believes the government is violating his right to religious freedom by criminalizing his spiritual belief that mandates he help people in distress.
"For the government, it's kind of been an expansion of the interpretation of what it means to harbor," he suggested.
The stretch of desert near Ajo can be deadly. The Pima County Medical Examiner has documented 250 migrant deaths in the area since 2001. In the same time frame, thousands have died of dehydration and exposure in the Arizona borderlands.
"It is life or death here. And a decision not to give somebody food or or water could lead to that person dying," Warren said.
'Can I be compassionate?'
Nine and half hours away by car from Ajo, in the west Texas town of Marfa, another case is unfolding that pits the government against a four-time elected city and county attorney, Teresa Todd.
She is under investigation for human smuggling after stopping to help three migrants alongside the road at night in February, 2019.
"I see a young man in a white shirt. He runs out toward the road where I am," Todd recounted. She says the man was pleading for assistance. "I can't just leave this guy on the side of the road. I have to go see if I can help."
The young man told Todd that his sister, 18-year-old Esmeralda, was in trouble.
"I mean, she can hardly walk, she's very dazed," recalled Todd.
The migrants took shelter in Todd's car while she called and texted a friend who is the legal counsel for the local U.S. Border Patrol, asking for advice. Before that friend could reply, a sheriff's deputy showed up. The deputy called in the U.S. Border Patrol.
An agent was soon reading Todd her Miranda rights. Eight days later, a Department of Homeland Security investigator accompanied by a Texas Ranger arrived at Todd's office with a search warrant for her cellphone. Todd says she was told she'd have the phone back in a matter of hours.
"It makes people have to question, 'Can I be compassionate'?"
Todd's phone was returned 53 days later.
The sheriff of Presidio County, Danny Dominguez, whose deputy called the Border Patrol, defended the action against Todd. He said anyone with undocumented migrants in their car risks arrest.
A spokesman for the U.S. Attorney for the western district of Texas declined comment on Todd's case.
Todd is unrepentant: "I feel like I did the right thing. I don't feel I did anything wrong."
Speaking by phone from the migrant detention center in Sierra Blanca, Texas, Esmeralda said of Todd, "I'm really grateful to her." She said doctors told her she was on the brink of death by the time she got to the hospital.
Figures confirmed to NPR by TRAC, the Transactional Records Access Clearinghouse at Syracuse University, show that in fiscal year 2018 there were more than 4,500 people federally charged for bringing in and harboring migrants. That is a more than 30% increase since 2015, with the greatest rise coming after Sessions' order to prioritize harboring cases.
"With these prosecutions, the government is saying, 'we're extending our zero tolerance policy to Good Samaritans,'" said Ranjana Natarajan, director of the Civil Rights Clinic at the University of Texas School of Law. "People shouldn't be helping migrants even if they might be at threat of death."
Accused of human smuggling
Ana Adlerstein, a U.S. citizen and volunteer at a Mexican migrant shelter, has her own story to tell. Earlier this month, Adlerstein accompanied a migrant seeking asylum from Sonora, Mexico to the U.S. border crossing at Lukeville, Ariz. Adlerstein was present to observe the process. Instead, she says she was detained by Customs and Border Protection officers for several hours.
"I was accused of human smuggling," she stated.
Border officials had been forewarned that a migrant seeking asylum was coming that day, accompanied by a U.S. citizen. Under current law, once a migrant steps onto U.S. soil, he or she can request asylum.
"If that's not how you're supposed to seek asylum at a port of entry, how are you supposed to seek asylum in this country?" Adlerstein asked.
U.S. Customs and Border Protection declined comment on Adlerstein's specific claims. In an email, a CBP spokesperson added:
"All persons entering the country, including U.S. citizens, are subject to examination and search. CBP uses diverse factors to refer individuals for selected examinations and there are instances when this process may take longer than normal. CBP is committed to ensuring the agency is able to execute its missions while protecting the human rights, civil rights, and dignity of those with whom we come in contact."
Adlerstein has not been charged but has received subsequent calls from a DHS investigator.
In Texas, Teresa Todd is waiting to find out if she will be indicted for human smuggling.
As for Scott Warren, he faces up to 20 years in prison if convicted on all three felony counts, a prospect he can't even contemplate.