SAN DIEGO _ Juan, a 28-year-old immigrant from Honduras, often wonders what would've happened if he had fled from the Border Patrol when they caught him crossing the border illegally with a group of families in March. Maybe his loved ones would still be with him.
Lean and athletic, Juan saw only two Border Patrol agents at the scene dealing with dozens of immigrants. Thinking back to that day, he wonders if the agents would have stayed with the others and let him flee.
"Maybe I should have run," said Juan, who until Thursday was living in a Tijuana shelter while his asylum claim is processed.
The Sand Diego Union-Tribune is withholding Juan's full name because he has received death threats from MS-13 gang members after refusing to join the gang. He left Honduras in November but MS-13 followed him to Mexico. Lately, he has been receiving text messages from other gang members.
The messages warn Juan that MS-13 knows where he is and they plan to come after him.
"I'm scared because they know I'm here in Tijuana," he said. "I don't know how they know that I'm here."
During a hearing in San Diego's immigration court Thursday afternoon, Juan told the judge he was afraid to go back to Mexico. An attorney representing Immigration and Customs Enforcement told the judge that he'd refer Juan to an asylum interview in the United States so that he wouldn't have to go back to Tijuana.
Juan is one of more than 5,000 asylum-seekers being processed through the Migrant Protection Protocols, commonly referred to as the Remain in Mexico Program. He spent more than three months in Tijuana waiting for his case to be resolved in San Diego. It wasn't until Juan got a lawyer Thursday, that he was able to wait in the United States. What makes his case unique is that it highlights a different type of family separation going on at the southern border.
Even though Juan may now be in San Diego while his case is pending, he is still separated from his pregnant girlfriend and 4-year-old stepchild, who are in Georgia.
President Donald Trump stopped the general separation of families at the border last June, responding to sharp public criticism over the practice.
A few days later, U.S. District Judge Dana Sabraw in San Diego ruled that the family separation practice under zero tolerance was unconstitutional. Family separations are only allowed if the parent is in criminal custody or if the parent is determined to be unfit or pose a danger to the child, Sabraw ruled in a preliminary injunction.
Since then, the government has either kept families together in detention centers while their cases are resolved or released them into the community, often with ankle bracelets.
However, nontraditional families like Juan and his girlfriend, Ana, fall in a gray area because they are not legally married.
The decision to separate Juan from his family happened in a manner of minutes after they were apprehended by Border Patrol agents.
"The officer asked me who I was with," Juan said. "I told him, I was with my wife and child."
The agent pointed at the 4-year-old and asked, "Is she your daughter?"
Juan said yes. But the father and daughter do not share the same last name.
"Are you sure?" the Border Patrol agent asked.
"Yes," Juan responded. "She is my daughter. I raised her. She isn't my blood but I raised her."
Ana started to cry.
"But I'm pregnant with his kid, you can't do this," Ana, 23, recalled telling the Border Patrol.
Agents told her that because they could not verify that Juan is the father of her unborn child, they could not stay, Ana said in a phone interview.
"They told me, 'I'm very sorry but I'm going to have to separate you,'" she said.
The couple have been together for two years but have not chosen to marry. The 4-year-old girl calls Juan "Papi," but they are not blood relatives. So in the context of immigration enforcement, they are not a family.
Without blood tests or certificates, the couple is forced to be in separate countries and face their immigration court case alone.
U.S. Customs and Border Protection said they were prohibited by law from providing information about individual cases. However, a CBP spokesperson shared information from the Immigration and Nationality Act that the agency uses to determine who is a family.
The law has specific guidelines to determine the validity of marriage when it comes to granting visas. Most of them require documentation like a marriage license or certificate.
In the absence of a marriage certificate, a common-law marriage can be considered to be valid. But only if is legally recognized in the place in which the relationship was formed and the union is fully equivalent to a marriage in every respect, in this case Honduras. It's unclear what determination, if any, CBP used before separating the family.
Advocates say this narrow way of defining marriage excludes many asylum-seeking immigrants and results in unnecessary separations that could end up having a negative impact on asylum claims.
"Many cases that are coming from all over the world that need asylum and come to our doors asking for help either don't follow the same traditional system or the legal system in their home country is broken," said Leah L. Chavarria, senior immigration attorney for Jewish Family Service of San Diego. "So even if they wanted to be married, maybe they are unable to receive their documents or maybe they are married but those documents have been destroyed."
If Ana and her daughter win their case but Juan loses his, the family could be permanently separated, Chavarria added.
Chavarria represented Juan during Thursday's hearing.
While Chavarria was in court, she noticed another case of family separation involving non-traditional families. This one involved a Guatemalan man with two young daughters who had been separated from their mother. The mother is fighting her own asylum case in Oakland.
It's unclear when and why this family was separated. Chavarria tried to follow up with the man and his daughters as they left the courtroom. It is clear that the Guatemalan couple who have four children together are not legally married.
While waiting for his case in Mexico, Juan has been thinking about what it means to be a family.
"A family isn't based on a piece of paper or blood," Juan said. "A family is ... I don't know how to explain it."
He pauses for a second to collect his thoughts.
"A family is built over time by being together," he said.
