Analysis Immigration

‘We Have No Stability Right Now’: When Your Husband’s Freedom Is at ICE Agent’s Discretion (Updated)

Tina Vasquez

"At the end of the day, so much power is with individual officers."

UPDATE, February 5, 9:50 a.m.: Immigration judge F. James Loprest granted Hector Baca Gutierrez a $5,000 bond on Thursday. ICE subsequently released him from custody on February 1. He spent 28 days in detention. 

“¿Cómo estás, mi amor?” This is how Berenilsse Marcial greets her son Louis after picking him up from his after-school program the evening of January 23. She has been going out of her way to seem chipper in front of the second grader, who has been having trouble concentrating at school and won’t sleep alone anymore. Marcial doesn’t have the words to explain why his step-father has been absent for nearly a month because he is being held in Immigration and Customs Enforcement (ICE) custody, or that their family’s fate rests in the hands of two immigration officials they’ve never even seen before.

On January 4, ICE agents detained Marcial’s husband, Hector Baca Gutierrez, in New York at a scheduled appointment. Back in November, Baca Gutierrez received a letter from Thomas Decker, the field office director of the District of New York’s Enforcement and Removal Operations (ERO) for ICE, telling him to appear on the tenth floor of 26 Federal Plaza on December 13 to meet with “Officer Almodovar.” The reason for the appointment simply said “interview.”

“We knew it couldn’t be good,” said Neal Datta, Baca Gutierrez’s attorney. “The ninth floor of 26 Federal Plaza is where you go to report [to ICE]; the tenth floor is where you go and don’t come back out.”

Baca Gutierrez has been detained for 26 days. His family has struggled over the past four weeks with the emotional and financial impact of his departure.

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“This has been devastating to my family,” said Marcial. “I don’t know what we’re going to do.”

The person in charge of Baca Gutierrez’s case is ICE ERO officer Ariel Valdez. Weeks ago, Valdez could have recommended to his supervisor that Baca Gutierrez be released, according to Datta. Instead, Valdez has allowed the father of two to languish in detention. (Multiple attempts to reach Valdez and ICE by publication time were unsuccessful.)

“I get that Hector is just one more person caught up in this system, but this really is a human rights issue,” said Datta. “That is the problem with the immigration system, there is no humanity in the system. However you look at it, what is happening to this family is just plain inhumane.”

A “Crucial Mechanism”

Immigration attorneys who spoke to Rewire.News explained that individual ICE officers have a great deal of discretion when it comes to who they detain and for how long, and they are not known for wielding this discretion in humane ways.

The exercise of discretion is “one of the most crucial mechanisms in the enforcement of U.S. immigration law,” according to the American Immigration Council.

Under the Obama administration, a November 2014 memo from then-Department of Homeland Security (DHS) Secretary Jeh Johnson spelled out the ways discretion could be used in immigration enforcement by DHS, not just ICE. Johnson wrote discretion could apply “not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions, including deciding: whom to stop, question, and arrest; whom to detain or release; whether to settle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case.”

Under the Trump administration, Johnson’s guidance was rescinded in February 2017 by then-DHS Secretary John Kelly. The Kelly memo, “Enforcement of the Immigration Laws to Serve the National Interest,” sought to limit immigration officials’ ability to exercise discretion. According to Philadelphia immigration attorney and co-founder of the Free Migration Project, David Bennion, ERO officers like Valdez may cite Kelly’s memo, but it doesn’t mean their hands are actually tied.

“[Officers] could show discretion, but they don’t tend to use it often. ERO officers and supervisors have discretion over who to put in detention [and] what bond to set, if any,” Bennion said. “ICE may have set guidelines or internal instructions not to exercise favorable discretion—they would probably point to Kelly’s internal enforcement memo from two years ago to justify not releasing someone.”

California immigration attorney Lizbeth Mateo told Rewire.News the idea that individual ICE officers have somehow been stripped of their ability to use discretion in individual cases “is a joke.” Mateo said that officers can be wildly different depending on the jurisdiction, but in some instances officers seem to have more discretion under the Trump administration.

“They weren’t stripped of their ability to use discretion; they were empowered to use their discretion to detain more people,” Mateo said.

Mateo had a client who was in a very similar situation to Baca Gutierrez. ICE ERO sent him a notice for an “interview,” so Mateo accompanied him to the office. It was immediately clear ICE was going to detain him, but Mateo reasoned with the officer and explained her client’s case. The officer relented, and Mateo left with her client.

“They do have discretion. I’m sure that when officers show discretion, their cases are more scrutinized because they didn’t follow whatever directives are coming from above, but that’s the point. They don’t have to follow these directives, which are too broad anyways,” Mateo said. “This administration might have directives for low-level officers, but it doesn’t dictate what they do on every case. At the end of the day, so much power is with individual officers, who are communicating directly with attorneys, who have access to our clients, and who have all the information. The power isn’t upstairs with supervisors or in D.C. where these directives originate.”

“Let’s Get the Hell Out of Here”

Marcial’s husband, Baca Gutierrez, is an undocumented immigrant from Nicaragua who came to the United States in the 1990s at age 17. Customs and Border Protection (CBP) detained him in Texas, but released him soon after with a notice to appear—essentially a court date in front of an immigration judge.

Baca Gutierrez didn’t attend the court hearing, and the judge ordered him removed in absentia. Unaware of the order of removal, Baca Gutierrez went on living and working in the United States.

In 2001, his father attempted to help Baca Gutierrez adjust his status. Marcial also petitioned on Baca Gutierrez’s behalf in 2016, and the petition was approved in March 2018, meaning he began the process to become a lawful permanent resident. It seemed things were looking up for the couple, even as they were bombarded with news stories about the Trump administration’s deportations and targeting of people just like Baca Gutierrez who had been in the United States for decades without authorization.

But then the ICE ERO letter came.

Almost immediately, Datta filed a motion to reopen Baca Gutierrez’s immigration proceedings, which are permitted post-entry of an order of removal in very limited circumstances, he explained. One of those exceptions is if a person can prove there have been substantial changes in the circumstances of their county of origin that could justify the re-opening of the proceedings.

This is certainly true in Nicaragua. Last year, the Trump administration terminated the humanitarian program Temporary Protected Status for Nicaragua, but a federal judge reinstated it in October.

In the past year there have been mass protests in the country against President Daniel Ortega, who is being called a “dictator” by Nicaraguans. Over the course of a few days in April, police killed 26 people protesting Ortega’s government. More recently, the president charged two journalists with terrorism for reporting on his human rights violations.

Baca Gutierrez has a pending asylum application because of Nicaragua’s country conditions, in addition to the motion Datta filed to re-open his immigration proceedings. He also has a stay of removal, which would put an immediate hold on the execution of the order for removal as a judge considered the motion for the stay.

Even while all of this was in play, Baca Gutierrez made his way to the tenth floor of 26 Federal Plaza on December 13 with Datta and Marcial, aware that ICE could choose to detain him on the spot.

“There is no waiting room on the tenth floor; there is just a door. If you knock on the door and no one comes, there’s no way to get an officer’s attention unless you call, and ICE never answers their phones,” Datta told Rewire.News. “So we get there and I look through the crack of the door into the long hallway and I start knocking. No answer. I called the officer. No answer. We waited 15 minutes and I knocked again. No answer. Called again. No answer. I left a message and then turned to Hector and said, ‘Let’s get the hell out of here.'”

The following week, Datta reached the officer on the phone and they rescheduled Baca Gutierrez’s appointment. The attorney said the officer sounded “agreeable” and seemed to indicate that Baca Gutierrez would not be detained at his rescheduled appointment, but would instead be released with an order of supervision.

“When we went back for his appointment January 4, they took him immediately,” Datta said.

“There Should Have Been No Issues”

On January 9, just five days after ICE took Baca Gutierrez into federal custody, Datta learned the motion to re-open the immigration proceedings was granted and Baca Gutierrez was to appear in a Texas court on February 12. (The court hearing has since been moved from Texas to New York City.) Following this news, Datta emailed Valdez to inform him of the development. “There is no reason why [Baca Gutierrez] should be detained,” Datta wrote in the email, which Marcial shared with Rewire.News. Yet, he has.

Rewire.News’ phone calls to Officer Valdez have gone unanswered. As of Monday, we were still receiving an automated response to our emails requesting a statement from ICE spokespeople on why Baca Gutierrez remains detained. The agency’s automated response read: “All of ICE’s public affairs officers are out of the office for the duration of the government shutdown. We are unable to respond to media queries during this period because we are prohibited by law from working. If you still require a response, please re-submit your query upon the government re-opening.”

The government shutdown, which lasted some 35 days, ended Friday. Datta does not believe the shutdown is to blame for delays on Baca Gutierrez’s case.

For weeks, Marcial says she has called Officer Valdez daily. He usually doesn’t answer the phone, but when he does, Marcial asks him to release her husband. In turn, Valdez asks for more information to prove Baca Gutierrez is “worth releasing,” she told Rewire.News, recalling their conversations.

Marcial has had to prove that her husband has remained employed, has paid his child support, has paid his taxes, is a man of “good moral character,” has never committed a crime, and that her son has a genetic disease and Baca Gutierrez helps with his care.

Marcial has even collected letters of support from the couple’s U.S. citizen friends, some of whom were shocked to learn that Baca Gutierrez was detained. At age 37, Baca Gutierrez has spent more time in the United States than in Nicaragua.

In one letter of support from a family friend, shared with Rewire.News, they describe Baca Gutierrez as “respectful, courteous, and generous” and write that he is a “hard working and responsible man” who “would do anything for his children and his wife.” Each letter shared with Rewire.News—a total of six—ends with a similar ask: “I respectfully request that Hector is released from ICE custody as soon as possible.”

Valdez has all of the information he requested, according to Datta, and it seems the officer has chosen to do nothing with it.

“Presumably [the packet of information] has been sitting somewhere gathering dust,” Datta said. “It’s just so hard to know where things get bottlenecked. Is it because supervisors do a tremendous review or just a cursory review whenever they get around to it? I don’t know. We never get to know what the recommendation is or who the supervisor is, but I can say that I would be shocked to learn that the supervisor goes against the officer’s recommendation.”

On January 28, Datta told Rewire.News that Baca Gutierrez now has a bond hearing on January 31. While there is no certainty in any of this, Datta said it would be “unreasonable” for Baca Gutierrez to be denied bond or for the bond to be higher than $3,000.

“It is almost always a hassle to get someone released from detention, but once the motion to re-open his case was granted [January 9], there should have been no issues. There is no real valid reason why Hector should remain detained,” Datta said.

“We Have No Stability Right Now”

When your husband gets detained there is pain and shock, Marcial said. The impulse is to want them back because you love them and don’t want them locked up. But then a different kind of reality begins to set in, when you realize you have to figure out how to fill in all the gaps your partner once filled. All of the responsibilities you shared as a couple—the child care, the bills, family obligations—now fall on you alone.

“I just didn’t think they would take [Hector] for this long,” Marcial said.

Their schedule went like this: Baca Gutierrez worked nights, but got home in time for Marcial to leave the house at 5:30 each morning to catch her train to work. Once gone, Baca Gutierrez spent every morning with his step-son, Louis, making sure the 7-year-old was fed and dressed in time to make it to school each morning. Later in the afternoon, Baca Gutierrez picked Louis up from school, spending a few hours with the boy until Marcial came home and Baca Gutierrez was off to work himself. The family lived in symbiosis and ran like clockwork up until Baca Gutierrez was detained.

“Hector did everything for my son, everything,” Marcial told Rewire.News, growing emotional, explaining that Baca Gutierrez was there for all of Louis’ doctor’s appointments related to his genetic disease. “My son sees his [biological] father maybe once or twice a year. Hector is his father and we need him to come back.”

Marcial had to ask her boss to adjust her work hours so that she could leave two hours later each morning to get Louis ready and off to school. This has also pushed her day back by two hours, so Louis is now in an after-school program until 5:30 each evening. Marcial has also enlisted the help of her sister-in-law, Leah Word, to help with Louis’ care.

“I can see the toll this is taking on Louis. He’s little, so he doesn’t really understand everything that’s happening, but he knows that there have been a lot of big changes and that he hasn’t seen his step-dad in weeks,” Word told Rewire.News.

To say that Marcial is spread thin would be an understatement. While balancing work, her son’s education and emotional well-being, she also has bills to pay. The unexpected expenses have been piling up, Marcial said, and the detention system is designed to profit off of families like hers. The family has created an online fundraiser to help with these expenses.

“The first day Hector was detained, I spent $200 so that he could eat and call us on the phone from the jail. After, I linked my credit card to the account for him to call us and I don’t even know what the final charges will be,” she said. “You have to pay for everything. For the phone calls, for the food, for the shampoo, everything. If I go see him in person, I can only see him through the glass and that costs money too. You are charged money to talk to your family through glass. You can’t even touch them. I put money on his books every week.”

Marcial estimates that over the years, she and Baca Gutierrez have paid more than $20,000 to adjust Baca Gutierrez’s status, and now attorney’s fees related to the detainment are piling up. Marcial also paid Baca Gutierrez’s child support for his son this month. She didn’t think it was fair for the 12-year-old to go without just because Baca Gutierrez is detained.

“It’s all overwhelming, I just feel like we have no stability right now,” Marcial said. “I could pay the rent this month, but after that I can’t do it all by myself. If he doesn’t get out in the next week I don’t know what we’re going to do. I don’t know where we will live or how we will eat.”

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