A 31-year-old man from Cuba detained at the Port Isabel Detention Center in Los Fresnos, Texas sued Immigration and Customs Enforcement this week, alleging the agency refused to release him even though he won withholding of removal from an immigration judge in November.
His attorney, Peter McGraw, confirmed on Thursday afternoon that a Department of Justice attorney informed him ICE intended to release his client. The news came only after the agency learned of the lawsuit filed on the detainee’s behalf. McGraw filed a habeas petition on behalf of O.B.V. on Wednesday alleging that Department of Homeland Security attorneys repeatedly misrepresented his client’s detention status to the Board of Immigration Appeals (BIA), claiming the man was not detained despite refusing to release him from the facility. The response from a government attorney means that ICE will likely release O.B.V. after seven months in detention his attorney says never should have happened.
O.B.V. was taken to a “tent-like detention structure located several miles from Brownsville, Texas” following his Nov. 12 hearing before an immigration judge in which he was granted withholding of removal, according to the lawsuit. Officials held him at the facility for one night before transporting him to PIDC, where he was detained despite winning relief. The man’s asylum case is on appeal. Though O.B.V. was granted relief, the immigration judge denied his asylum application based on the Trump administration’s transit ban. The policy, currently being challenged in federal court, bars those who transited a third country and did not first apply for asylum in that country from obtaining the protection in the United States. “He obviously has a meritorious asylum case. The judge has already ruled in his favor and ICE was detaining him anyway with no apparent justification,” said McGraw. “The fact that they were filing stuff with the BIA saying that he’s not detained reveals how arbitrary this detention really is.”
The presence of COVID inside the facility and the lack of adequate protective measures available to detainees placed O.B.V. at significant risk, his attorney said. On Thursday, ICE reported a total of 26 positive COVID-19 cases inside PIDC. Twenty-three of those cases were under isolation or monitoring. By Friday, the agency reported 34 detainees inside PIDC confirmed to have coronavirus. 31 of those detainees were under isolation or monitoring. Detainees told advocates last weekend that an estimated 120 detainees began a hunger strike on Sunday, and detainees in touch with advocates and attorneys reported that half of the facility’s 16 dormitories are under quarantine. ICE declined to provide specific information on the number of quarantined detainees but confirmed that two individuals inside the facility began a hunger strike on June 3.
McGraw isn’t quite sure what would cause ICE to “falsely and repeatedly” claim that his client wasn’t detained. ICE’s attorney filed two documents with the BIA in their appeal of the immigration judge’s decision, both claiming that O.B.V. was not detained. The first of those documents was a notice of appeal; ICE then filed a motion asking for more time to file briefs. “As justification for getting more time, they said that [O.B.V.] was not detained and so he wouldn’t experience any prejudice from the grant of this extension of time,” said the attorney. “Of course, he did experience prejudice from that because he’s detained and there’s an outbreak of coronavirus cases at PIDC. They either intentionally detained him and were making misrepresentations at the Board of Immigration Appeals, or they were recklessly detaining him when they should have known that he was detained.”
In either case, McGraw said there was no reason to detain his client, who clearly does not present a flight risk or danger to society given that he was granted relief and has a pending appeal. Explaining his client’s current status, the attorney said, “They’re not allowed to deport him to Cuba under federal law. He’s got an order of removal to Cuba, they just can’t execute it because it’s more likely than not that he’s going to be persecuted or tortured based on his political beliefs. There’s no final order in his case right now because when you get a decision from an immigration judge, if you lose, the respondent in immigration proceedings — the person who’s seeking some kind of relief in the United States — can appeal. It’s not final until there’s a decision on the appeal. Same thing with the government — they’ve chosen to appeal on this case and so there’s no final order.”
“He’s got every incentive to show up to hearings in his immigration case to make sure that the immigration judge’s decision is upheld. [ICE] apparently just didn’t care. They might not have even known that he was detained, based on what they were telling the BIA,” McGraw said.
According to the petition, O.B.V. fled Cuba after being threatened and beaten by police officers pressuring him to support a newly proposed constitution. “Between 2013 and 2019, police officers in Cuba arrested and assaulted [O.B.V.] on multiple occasions based on his political opinion. On one occasion in February of 2019, police officers beat [O.B.V.] until he lost consciousness because he refused to support the newly proposed Cuban constitution,” the document stated.
O.B.V. fled after a local prosecutor told him that he was going to start proceedings to have him incarcerated for failing to vote in favor of the constitution. The man reached the border and tried to present himself at a port of entry in Matamoros, Tamaulipas to request asylum last August. “Mexican immigration officials told him it would cost $500 to participate in this process. [O.B.V.] could not afford this,” his attorney wrote.
Those sent back to Mexico under the Trump administration’s “Remain in Mexico” program are forced to rely on Mexican immigration officials and their counterparts on the opposite side of the bridge. Mexican migration required asylum seekers to provide their information to keep on a list indicating who arrived and when, in order to meter the number of people allowed to the walk to the international line. This practice and the corruption it allowed for caused O.B.V. to swim the river, instead, immediately turning himself into immigration officials upon entry into the United States. “He presented immigration officials with his Cuban passport. Following inspection by an immigration officer, he was not admitted or paroled to the United States and was later classified as removable,” the lawsuit stated.
It’s important to note that individuals who enter the United States without documents are supposed to be classified under “Entry Without Inspection”, which places asylum seekers already in the country in entirely different proceedings with different protections offered. Officials first detained O.B.V. at two days in a border processing facility. Then, they drove him across a bridge in Brownsville, informed him he had been placed in the “Remain in Mexico” program, then provided him with documents “indicating that the first hearing in his immigration case would occur 71 days later, on October 25, 2019, and that he needed to return to the Gateway International Bridge at 8:00 A.M. on that date or risk being removed in absentia.”
O.B.V.’s testimony confirmed that officials tell families sent back to Mexico in detained status to arrive at the bridge four hours in advance of hearings in the tent court system in Brownsville. “The immigration officers verbally told [O.B.V.] that he actually needed to arrive at the Gateway International Bridge at 4:00 A.M. on October 25, 2019,” his attorney wrote.
Shortly after his return to Mexico, O.B.V. was assaulted and robbed by members of a criminal gang. The state of Tamaulipas has been under a State Department Level 4: Do Not Travel advisory since 2018, the same level applied to active combat zones like Afghanistan, Iraq, and Syria. DOS warns on its website of “kidnapping, forced disappearances, extortion, and sexual assault” are common, that “criminal groups target public and private passenger buses” and “often tak[e] passengers hostage and demand random payments”, and that “local law enforcement has limited capability to respond to crime incidents”.