IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50492

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

BLANCA NIEVE VASQUEZ-HERNANDEZ,

 Defendant - Appellant

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UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

ELBA LUZ DOMINGUEZ-PORTILLO

 Defendant - Appellant

--------------------------------------------------------------------------------------

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

MAYNOR ALONSO CLAUDINO LOPEZ,

 Defendant - Appellant

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United States Court of Appeals

Fifth Circuit

FILED

May 8, 2019

Lyle W. Cayce

Clerk

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UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JOSE FRANCIS YANES-MANCIA, 

 Defendant - Appellant

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UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

NATIVIDAD ZAVALA-ZAVALA, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Western District of Texas

Before KING, HIGGINSON, and COSTA, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

In unrelated incidents between October 21, 2017 and October 23, 2017, 

Appellants Blanca Nieve Vasquez-Hernandez, Elba Luz Dominguez-Portillo, 

Maynor Alonso Claudino-Lopez, Jose Francis Yanes-Mancia, and Natividad 

Zavala-Zavala were each apprehended by Customs and Border Protection 

(CBP) soon after entering the United States from Mexico. Appellants, citizens 

of Honduras and El Salvador, were each accompanied by a minor child (in one 

appellant’s case, a grandchild).1 Appellants stated to CBP during initial 

 

1 The children ranged between 7 and 16 years old.

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processing that they feared persecution in their home countries. They were 

arrested, charged with misdemeanor improper entry under 8 U.S.C. § 1325(a), 

and detained in El Paso. The government did not detain the children with their 

parents, but instead transferred the children to the custody of the Office of

Refuge Resettlement (ORR) in the U.S. Department of Health and Human 

Services.2

Before July 2017, children were typically only referred to ORR when they 

entered without a parent or guardian. U.S. DEP’T HEALTH HUMAN SERVS.

OFFICE OF INSPECTOR GENERAL, Separated Children Placed in Office of Refugee 

Resettlement Care, 3 (Jan. 2019), https://oig.hhs.gov/oei/reports/oei-BL-18-

00511.pdf. Before July 2017, “some children [were] referred to ORR after being 

separated by DHS from a parent . . . with whom the child arrived. Historically, 

these separations were rare and occurred because of circumstances such as the 

parent’s medical emergency or a determination that the parent was a threat to 

the child’s safety.” Id. However, between July and November 2017, the El Paso 

sector of CBP “implemented new policies that resulted in 281 individuals in 

families being separated.” Id. It was during this period that Appellants arrived 

with their children. Appellants’ immigration forms indicate that they were 

separated from their children not because of a medical emergency or safety 

concern, but because of the parents’ impending prosecutions.

A magistrate judge convicted and sentenced Appellants after bench 

trials where Appellants stipulated to facts establishing all the elements of a § 

 

2 See 8 U.S.C. § 1232(b)(3) (“Except in the case of exceptional circumstances, any 

[federal] department or agency . . . that has an unaccompanied alien child in custody shall 

transfer the custody of such child to the Secretary of Health and Human Services.”). ORR is 

tasked with “coordinating and implementing the care and placement of unaccompanied alien 

children who are in Federal custody by reason of their immigration status.” 6 U.S.C. § 

279(b)(1). As charged by statute, ORR has developed and implemented its own policies for 

the care, placement, and release of children. 

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1325(a) offense. The district court affirmed. In this consolidated appeal, 

Appellants argue that (1) they should not have been criminally prosecuted 

because they sought asylum, and (2) being separated from their children 

rendered their convictions constitutionally infirm.

Appellants have never disputed the sufficiency of the government’s 

evidence. As the district court explained in its careful and detailed order

affirming the convictions, “the soundness of the government’s policies 

regarding arriving asylum seekers and their minor children is not before the 

Court in this appeal.” We agree and affirm.

I

Appellants made their initial appearances before the same magistrate, 

who appointed a Federal Public Defender to represent them. On November 7, 

2017, Appellants filed a consolidated motion to dismiss the criminal 

complaints.3 They contended that the § 1325(a) charges were premature 

because their asylum claims had not yet been processed. They also argued that 

separation from their children would render any guilty plea involuntary, and 

constituted “outrageous” conduct requiring dismissal of the complaints. 

Appellants confirmed that they were “not seeking that the court analyzes [sic] 

the strength of the government’s § 1325 cases against them. . . [T]he parentdefendants’ guilt or innocence under § 1325 is not at issue on this motion.” On 

November 9, 2017, the government offered Appellants plea agreements with 

sentences of time served. Appellants did not accept.

The magistrate set a hearing on the motion to dismiss for November 27, 

2017, and set bench trials for December 1, 2017.4 At the hearing on the motion 

 

3 The parties agreed that consolidation of the motion to dismiss was appropriate 

because Appellants were similarly situated and the relevant factual circumstances were 

straightforward. 4 The magistrate’s jurisdiction over Appellants’ misdemeanor proceedings rested on 

18 U.S.C. § 3401(a). 

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to dismiss, Appellants raised two new arguments. First, they argued that 

because their children were material witnesses, going to trial without the 

children present would violate due process. Second, Appellants contended that 

conviction and deportation would unconstitutionally terminate their parental 

rights. At the end of the hearing, the magistrate denied the motion to dismiss.5

At their individual bench trials, Appellants all stipulated to facts and 

evidence establishing all the elements of a § 1325(a) offense. Appellants did 

not testify and did not present any affirmative defenses. The magistrate found 

Appellants guilty and sentenced each to one year of non-reporting probation.

Appellants moved for reconsideration, which the magistrate denied on January 

12, 2018. 

Appellants’ appeals to the district court were consolidated. While the 

appeal was pending, four of the five (all but Vasquez-Hernandez) were found 

inadmissible under 8 U.S.C. § 1182 and deported, apparently without their 

children. Vasquez-Hernandez was released on immigration bond on February 

21, 2018. On June 11, 2018, the district court affirmed the convictions. In a 

detailed order, the district court examined Appellants’ arguments and found 

no basis for reversing their convictions. This timely appeal followed.

II

This appeal concerns the district court’s affirmance of the misdemeanor

convictions and sentences imposed by the magistrate. We therefore “review the 

magistrate judge’s findings of fact for clear error and conclusions of law de 

novo.” United States v. Hollingsworth, 783 F.3d 556, 558 (5th Cir. 2015). 

Appellants seek to challenge their convictions on six grounds: (1) 

separation from their children was pre-trial punishment that violated due 

 

5 The magistrate issued an opinion explaining the denial of the motion to dismiss on 

January 5, 2018. 

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process; (2) the convictions violated the Eighth Amendment because they 

resulted in Appellants’ deportation and continued separation from their 

children; (3) separation was outrageous government conduct and the criminal 

complaints should have been dismissed; (4) separation violated Appellants’ 

rights to exculpatory evidence; (5) separation deprived Appellants of a fair 

trial; and (6) separation violated Appellants’ rights against self-incrimination.

None of these arguments is persuasive.

A. Pre-trial punishment

Appellants say that because they “were bona fide asylum seekers,” it was 

impermissible pre-trial punishment for the government to detain them

pending criminal prosecution and thereby separate them from their children.

Yet Appellants do not challenge the government’s contention that once the 

parents were arrested and detained in adult facilities, their children became 

“unaccompanied” for purposes of § 1232(b)(3). See 6 U.S.C. § 279(g)(2) (defining 

“unaccompanied alien child” in relevant part as a child under 18 years of age

with “no lawful immigration status,” for whom “no parent or legal guardian in 

the United States is available to provide care and physical custody”). 

Instead, Appellants respond that the government’s decision to initiate 

criminal proceedings was unjustifiable because they were “bona fide asylum 

seekers.” Relying on 8 U.S.C. § 1225(b)(1)(A)(ii), Appellants assert that they 

had rights to an asylum hearing before any criminal proceedings could be 

initiated, and that if they had been granted asylum, they would have been 

immunized from prosecution for improper entry. Section 1225(b)(1)(A)(ii)

provides, “If an immigration officer determines that an alien . . . is inadmissible 

. . . and the alien indicates either an intention to apply for asylum under section 

1158 of this title or a fear of persecution, the officer shall refer the alien for an 

interview by an asylum officer.” (emphasis added). Emphasizing that “shall” 

is mandatory, Appellants conclude that “[s]eparating Appellants from their 

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minor children was a restriction or condition not reasonably related to 

Congressional goals regarding asylum law and it punished Appellants.” 

Nothing in § 1225(b)(1)(A)(ii) prevents the government from initiating a 

criminal prosecution before or even during the mandated asylum process. Nor

have Appellants shown that qualifying for asylum would be relevant to 

whether they improperly entered, since § 1325(a) applies to “[a]ny alien” who 

“enters or attempts to enter the United States at any time or place other than 

as designated by immigration officers.” Appellants stipulated that they were 

aliens and entered the United States at a place that was not a port of entry. 

Qualifying for asylum under 8 U.S.C. § 1158 would not change Appellants’

alien status. See 8 U.S.C. § 1101(a)(3) (defining “alien” as “any person not a 

citizen or national of the United States”). Indeed, only “aliens” can apply for 

asylum under 8 U.S.C. § 1158(a)(1). 

Using similar logic, this court in an unpublished decision concluded that 

the government’s failure to refer a defendant to an asylum officer for a 

reasonable fear determination was not grounds for dismissing his indictment 

for illegal reentry. United States v. Brizuela, 605 F. App’x 464, 465 (5th Cir. 

2015). In Brizuela, the court concluded that even if the government had failed 

to comply with a regulation mandating a reasonable fear interview, 

such a violation has no relevance to the prosecution for illegal 

reentry. No legal authority mandates a pause to criminal 

proceedings until the reasonable-fear interview takes place. . . . 

[The regulation] does not restrict the time to bring criminal 

charges relative to the time of referral, nor does it prescribe some 

collateral impact on criminal proceedings if the government fails 

to follow the regulation. And the outcome of those civil proceedings 

would have no effect on Brizuela’s criminal case. . . . With no legal 

authority requiring a halt on a separate track of the legal system, 

dismissing the indictment on this basis would have been error.

Brizuela’s reasoning is persuasive and directly applicable here.

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B. Eighth Amendment

Appellants argue that being deported without their children has resulted 

in “permanent separation” amounting to cruel and unusual punishment. But

on this record, deportation was not a punishment imposed or even caused by

Appellants’ § 1325(a) misdemeanor convictions. Rather, the four deported 

appellants were found inadmissible during post-conviction civil immigration 

proceedings.

To be sure, the Supreme Court has warned that deportation in the civil 

context sometimes cannot be disentangled from criminal punishment. In 

Padilla v. Kentucky, 559 U.S. 356, 365 (2010), the Court found that the Sixth 

Amendment’s guarantee of effective assistance of counsel requires, at a 

minimum, criminal counsel to “give correct advice” “when the deportation 

consequence [of a conviction] is truly clear.” Id. at 369. The Court reasoned

that even though deportation “is not, in a strict sense, a criminal sanction,” 

and “removal proceedings are civil in nature,” “deportation is nevertheless 

intimately related to the criminal process. . . . [I]mportantly, recent changes in 

our immigration law have made removal nearly an automatic result for a broad 

class of noncitizen offenders.” Id. at 365-66. Padilla was specifically concerned 

with cases where deportation is “a consequence of a criminal conviction.” Id. 

at 366. 

Appellants frame their appeal as though they were deported pursuant to 

criminal proceedings, but they have not shown that deportation was caused by 

their § 1325(a) convictions. Appellants do not argue, for instance, that their 

convictions rendered them inadmissible under Section 212. See, e.g., 8 U.S.C. 

1158(b)(2). Nor do Appellants argue that their § 1325(a) convictions make it 

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more difficult for them to locate and regain custody of their children. Their

Eighth Amendment claims fail.

C. Outrageous government conduct

Appellants contend that family separation was “so outrageous that due 

process principles would absolutely bar the government from invoking judicial 

process to obtain a conviction.” United States v. Russell, 411 U.S. 423, 431–32

(1973); see Rochin v. California, 342 U.S. 165, 172 (1952) (holding that “forcible 

extraction” of defendant’s stomach to recover narcotics “shock[ed] the 

conscience” and was a method “too close to the rack and the screw to permit of 

constitutional differentiation”). 

“The standard for proving outrageous governmental conduct is 

extremely demanding.” United States v. Sandlin, 589 F.3d 749, 758 (5th Cir. 

2009). We have “declined to find outrageous conduct where the Government 

failed to disclose that the defendant’s signature on a particular document was 

forged; engaged in entrapment; or abducted the defendant from his home 

country to circumvent extradition proceedings.” Id. at 759 (citing United 

States v. Mauskar, 557 F.3d 219, 231–32 (5th Cir. 2009), Stokes v. Gann, 498 

F.3d 483, 485 (5th Cir. 2007), and United States v. Chapa–Garza, 62 F.3d 118, 

121 (5th Cir. 1995)); see also United States v. Wilson, 732 F.2d 404, 411 (5th 

Cir. 1984) (declining to find outrageous conduct where the government played 

a “nonviolent trick” to get defendant into custody). Appellants do not cite any

Fifth Circuit case where an indictment was dismissed or a conviction reversed 

based on the outrageous conduct doctrine. Cf. United States v. Nolan-Cooper, 

155 F.3d 221, 229–30 (3d Cir. 1998) (concluding that “the viability of the 

doctrine is hanging by a thread” and that “courts have rejected its application 

with almost monotonous regularity”) (citations omitted).

As explained above, Appellants have not challenged the government’s 

justification for detaining them during criminal prosecution and pending trial. 

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Further, as discussed below, the record does not suggest that separating the 

children from Appellants aided the government in obtaining convictions. We 

therefore will not reverse Appellants’ convictions based on the outrageous 

government conduct doctrine.

D. Right of access to evidence

Appellants argue that the government refused to disclose the children’s 

location and that this refusal violated their rights in “what might loosely be 

called the area of constitutionally guaranteed access to evidence.” United

States v. Valenzuela–Bernal, 458 U.S. 858, 867 (1982).

First, Appellants argue that the government violated Brady v. 

Maryland, 373 U.S. 83, 87 (1963), because the children could have testified as 

to their parents’ well-founded fear of returning home to “horrible violence in 

their Central American countries.” They contend that such testimony would 

have been relevant to a duress defense.6

Brady requires a showing that “(1) the evidence at issue was favorable 

to the accused, either because it was exculpatory or impeaching; (2) the 

evidence was suppressed by the prosecution; and (3) the evidence was 

material.” United States v. Cessa, 861 F.3d 121, 128 (5th Cir. 2017) (quotation 

omitted). The materiality requirement applies even where the witness is 

unavailable to the defendant. Valenzuela-Bernal, 458 U.S. at 870

(unavailability “may well support a relaxation of the specificity required in 

showing materiality” but does not “afford[] the basis for wholly dispensing with 

such a showing”). The government “bears no responsibility to direct the defense 

toward potentially exculpatory evidence that is either known to the defendant 

 

6 Appellants did not actually raise defenses of duress below. In moving for judgments 

of acquittal, they argued only that the children were key material witnesses to a potential

duress defense. They declined to testify themselves on duress, arguing that doing so “forces 

the defendants to take the stand in order to establish their defense and so there is prejudice.”

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or that could be discovered through the exercise of reasonable diligence.” 

United States v. Sipe, 388 F.3d 471, 478 (5th Cir. 2004); see also Lawrence v. 

Lensing, 42 F.3d 255, 257 (5th Cir. 1994) (“Brady claims involve ‘the discovery, 

after trial of information which had been known to the prosecution but 

unknown to the defense.’”) (quoting United States v. Agurs, 427 U.S. 97, 103

(1976)). 

Here, Appellants knew what the children would have testified to. Yet, as 

the district court observed, Appellants “made [no] effort to call the children as 

witnesses” during their bench trials, did not “request[] that the children be 

made available so they could be interviewed by counsel,” and did not “attempt[] 

to subpoena them.” Nor did Appellants request a continuance of trial pending 

their ability to obtain the children’s testimony. There was therefore no Brady 

violation. See Lensing, 42 F.3d at 258 (no Brady claim where evidence was 

disclosed at trial and counsel opted not to seek a recess or continuance). 

Moreover, the children’s testimony would not have been material to a 

duress defense. Testimony about conditions in Honduras and El Salvador 

would not have established an affirmative defense of duress, which requires, 

among other elements, a “present, imminent, and impending threat of such a 

nature as to induce a well-grounded apprehension of death or serious bodily 

injury” and “no reasonable legal alternative to violating the law.” United States 

v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998) (quotations omitted). The 

district court correctly reasoned that Appellants’ proposed duress defense was 

“rooted in the danger they faced in their home countries, not at the time of 

crossing the border into the United States. Nothing suggests that those 

dangers followed them to the border,” and there was “no basis to believe that 

Appellants did not have a reasonable legal alternative to crossing the border 

into the United States at an undesignated place.” See also United States v. 

Ramirez-Chavez, 596 F. App’x 290, 293 (5th Cir. 2015) (no duress defense to 

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improper entry where defendant was kidnapped, beaten, and ransomed and 

defendant waded across the Rio Grande into the United States “several 

minutes” after escaping from captivity). 

Second, Appellants contend that the government suppressed the 

children’s testimony in bad faith, violating their due process rights under 

California v. Trombetta, 467 U.S. 479 (1984). This argument is also foreclosed 

by the fact that Appellants took no steps to secure the children’s presence at 

trial. Even so, we note that Appellants misread Trombetta. There, the Court 

examined “the government’s duty to take affirmative steps to preserve evidence 

on behalf of criminal defendants,” evidence capable of being “destroyed through 

prosecutorial neglect or oversight.” Id. at 486 (emphasis added). In other 

words, Trombetta dealt with the government’s duties to preserve physical 

evidence—in Trombetta’s case, breath samples taken prior to his arrest and 

conviction for drunk driving. The children’s testimony was not physical 

evidence capable of being destroyed by the government. 

E. Fair trial

Appellants argue that they were deprived of a fair trial because their 

children “could have testified to corroborate ‘credible fear claims’ that 

prompted Appellants to flee from their countries.” The fair trial claim simply 

repackages the Brady claim and fails for the same reasons. 

F. Self-incrimination

Finally, Appellants assert that the government impermissibly burdened 

their right to not testify at one’s own criminal trial. See Brooks v. Tennessee, 

406 U.S. 605, 610–11 (1972). They argue that family separation was a coercive 

practice that pressured Appellants to testify as to duress, and thereby 

incriminate themselves. 

The self-incrimination claim fails because, as with the Brady claim, 

nothing in the record suggests that the government prevented the children 

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from testifying. Although the prosecution did not disclose where the children 

were located, Appellants made no effort to subpoena the children as witnesses, 

did not seek alternate testimony, and did not request a continuance. Nothing 

in the record indicates that the government exerted undue pressure on 

Appellants to testify, whether intentionally or through a policy of family 

separation.

III

For the foregoing reasons, we AFFIRM.

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