Immigrants from Muslim-majority countries are a tiny percentage of border crossers. But in one Texas judicial district, they made up more than half of those prosecuted under an obscure law.
They gathered in a snowy forest dressed in their menacing best: combat fatigues and military-style boots, their faces obscured by ski masks.Many of the charged migrants were transferred into Immigration and Customs Enforcement custody after serving their sentences, their attorneys said.
His arduous journey led him to the United States in June 2022. In the early morning hours of June 21, he crossed the Rio Grande and reached American soil. Shams surrendered to border patrol rather than attempt to evade capture, he said.In Afghanistan, Shams had worked as a journalist and as a campaigner for Afghan President Ashraf Ghani. He’d visited small towns and spoken with community leaders about women‘s rights.But in August 2021, Shams received a letter from the Taliban, who threatened to kill him, he said. He left his home in January 2022. In an interview, he recounted how his friends had not been so lucky: one was captured by the Taliban and another, a former colleague, was injured in an ISIS attack.“It is hard to express what I felt being told that I committed a crime,” he said through an interpreter, explaining how he was never in trouble with the law in Afghanistan. “Can you imagine how hard that was for me?” he said of the moment authorities cuffed him. “For seeking protection, for coming here to be safe and then I was told I committed a crime, I am being charged. It is hard to explain — it is like a movie, it is worse than what I saw in a movie.” He tried to tell people he met in custody that he had not committed a crime, and that he simply wanted protection.After he was sentenced, Shams avoided crowds and tried to stay in his cell as much as possible. He was worried he would witness something he should not. Instead, he spent most of his time studying and taking online courses offered at the facility. During his time in custody, he finished more than 70 courses, he said. He received 32 certificates for the courses, including career skills and media training. “I was thinking to myself: Am I that bad? Am I a bad person? Things like that were coming to my mind,” he said of being labeled a criminal. Shamsuddin Shams, a 25-year-old Afghan man who was journalist back home, was prosecuted in 2022 in Texas after crossing the border seeking asylum. Shams’ story lined up with those of other migrants The Times interviewed, including one Afghan man who requested to be identified by his father’s surname to shield his family from retaliation.crossed the border in April 2022 after fleeing his home country. The 28-year-old was a social activist in Afghanistan who supported the former government and collected donations for family members of Afghan soldiers who were wounded or killed in battle.“I tell them why I did what I did,” he said of his conversations with government officials while he was in custody. “I come for asylum. I need sympathy — I lost my dream, I lost everything, I cried — what did I do?” He said he often asked officials he came across why he, out of the hundreds of thousands who crossed the border, was selected for prosecution. At one point, he recalled being in a cell with others charged under the same statute. He said the group included asylum seekers from Afghanistan, Syria, Egypt, Yemen and Iran. “We were thinking that a lot of people crossed this river — why is it just us in detention?” he said. He pleaded guilty in July 2022 and was sentenced to nine months in jail. He struggled in jail, he said, as he was surrounded by fighting in the facility. Sometimes Sulimakhil, who now lives in California, wondered how the U.S. was paying for people like him to spend time in prison.Mohammad, an Afghan man in his 30s who pleaded guilty under the same charge and spent seven months in criminal custody, said he crossed with people from several other, non-Muslim majority countries. He said that only he and two other Afghans he crossed with were charged with the crime.He was a teacher in his home country and fled Afghanistan after facing threats from the Taliban. He is ethnically Hazara, a minority that has historically faced deadly attacks from the Taliban. He was transferred to ICE after completing his criminal sentence and remains in custody today.“I want to be clear. If my conditions in Afghanistan were OK — if I were safe there like the way it was before [the Taliban took over] — I would have never tried to immigrate here,” he said from ICE custody through an interpreter. “I was coming out of need as an asylum seeker, to flee for my life.” The prosecutions were not limited to Afghans. Migrants from Iran, Yemen, Syria, Egypt and other Muslim-majority countries were charged, in addition to those from Colombia and other nations, such as China. Michael Neal, an attorney with the International Rescue Committee, helped both Shams and Suleiman get released from immigration detention following their federal prison sentences. He ended up helping a handful of Afghans who were charged. He described them as journalists, human rights activists, women’s rights activists, and those involved in education.Neal said the Afghans he helped couldn’t believe they were charged with crimes for seeking asylum after the U.S. withdrew from their country.One of Neal’s clients suffered from post-traumatic stress disorder following his stint in federal custody, he said. The man had worked at a nongovernmental agency in Afghanistan and promoted women’s rights in the country. He left Afghanistan fearful for his life and expected to be in a United Nations-style refugee camp, Neal said. Instead, he was prosecuted under the failure to report law and sentenced to eight months in criminal custody. Inside detention, he struggled, especially after being strip-searched, Neal said. “I recall hearing how broken he sounded when I spoke to him over the phone after these events,” Neal said. The man was transferred to ICE custody following his criminal sentence and Neal was able to win his release.“This prosecution and imprisonment has had terrible consequences on the life of this kind and conscientious gentleman. He is one of several mostly Muslim and Middle Eastern individuals prosecuted in Del Rio. In seeking asylum in the U.S., my client experienced a different brand of persecution — selective prosecution by the U.S. government,” Neal said in an email. Neal never saw failure to report charges during more than three years working as a federal defender in Texas before joining IRC, he said. He was taken aback at the demographics of those charged, including the fact that many were migrants from Muslim-majority countries.Historically, prosecutions under the failure to report statute have been rare, and not reserved for migrants. The amendment that made failing to report a crime was passed as part of a congressional anti-drug effort in the late 1980s. “By imposing a new criminal penalty on those who failed to report immediately to agents after crossing the border, the provision was geared to allow agents to focus its enforcement efforts on those most likely to be drug smugglers, since those who were not smugglers would comply with the new law,” said Yael Schacher, director for the Americas and Europe at Refugees International and a historian of U.S. immigration. “The penalty was thus designed to be imposed on drug smugglers.” One failure to report prosecution became a national news story. The plight of Abdul Wasi Safi, a former Afghan special forces soldier who helped the U.S. military and was prosecuted after he sought asylum in the U.S., attracted bipartisan concern, legal resources and public outcry. Rep. Dan Crenshaw, a Texas Republican, backed Safi and said that the Biden administration needed to “remedy” his situation. After national attention, the Department of Justice dropped the charges against Safi in January and he was released.He has an active asylum case with the U.S. government and is waiting for a work permit. He’s living with his brother in a small apartment and taking English courses. Shams is still under a yearlong court-mandated supervision period, and he has to check in with a probation officer and submit to drug tests. “I don’t do drugs — I have never been involved in this. I can give them a drug test every day, every week,” he said. He’s happier, finally. He believes he will have an opportunity to pursue his dreams in relative safety.
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