Monday, May 27, 2024

Jaime Alvarez Figueroa holds his 2-year-old daughter.

Despite several apparent reprieves from courts and general policy statements from Immigration and Customs Enforcement leadership in Boston, Jaime Alvarez Figueroa is getting deported to El Salvador.

He’ll leave behind a wife and 2-year-old daughter, as well as his two brothers, sister and mother, all living in East Boston. Before his 2017 arrest for driving without a license and with an open container, Alvarez had worked his way up to head cook at the Ginger Exchange restaurant in Cambridge’s Inman Square and Boston.

“It is truly heartbreaking for this to have happened,” said Kerry Doyle, Alvarez’s immigration lawyer. Doyle said that because Alvarez and his wife initially got help from someone practicing law without a license, “their cases were delayed and mishandled” and she wasn’t able to fix the problems with his case.

Saris shifts burden of proof

Alvarez got married in Boston federal court May 2 in an unusual courthouse wedding. After his marriage to Tatianna Chavez Vanegas, he’d hoped to be released from ICE detention, where he had been since April 2017. He’s been waiting for both his and his wife’s claims of asylum to be adjudicated.

There has been a lot going on with federal immigration law in Massachusetts since Alvarez’s wedding, and most seemed favorable for him.

On May 14, Chief Judge Patti Saris ordered that Alvarez should be released from detention, “unless the immigration court holds a bond hearing within 14 days where the government bears the burden of proving that Alvarez Figueroa must be detained because he is dangerous or a flight risk.”

In her decision, Saris found that the Fifth Amendment guarantee of due process requires ICE to prove a detainee is dangerous to hold him, not that that detainee prove he is not dangerous: “Requiring a non-criminal alien to prove that he is not dangerous and not a flight risk at a bond hearing violates the due process clause,” she wrote.

Also, during this time, the First Circuit Court of Appeals, based on Boston and serving Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico, instituted a new policy: As of May 7, it would stay removal in any immigration case automatically for two weeks while it decided formal requests for a longer stay of removal.

Asylum denied, but … reconsideration?

On May 18, government lawyers asked Saris to reconsider her order, saying that the Board of Immigration Appeals denied Alvarez’s asylum application May 4, although government lawyers didn’t find out until the next week. The BIA is an agency that works for the U.S. Attorney General and reviews the work of immigration courts; it is not made up of judges.

Although Alvarez would appeal the BIA decision to the First Circuit, the board’s decision changed his status and made him subject to a final order of removal. Government lawyers argued that meant they could detain him for 90 days.

Saris said no to the reconsideration May 24: Alvarez still needed a bond hearing. But she also said that ICE could wait until the First Circuit decided whether to stay his removal, and then ICE would have a week. That proved to be a problem for Alvarez.

On May 30, government lawyers filed a notice indicating they intended to deport Alvarez. ICE Boston spokesman John Mohan has been unable to explain why ICE has selected Alvarez for deportation, saying May 31 and repeatedly through Thursday that he was waiting to hear back from ICE’s operations staff.

ICE priorities

Separate from Alvarez, on May 22 and 23 in the same courthouse, Judge Mark Wolf was holding hearings in which the ICE Boston leadership testified about their priorities. The Wolf hearings involved ICE arresting non-criminal undocumented immigrants with spouses who are U.S. citizen after they were approved for a path to citizenship.

Then-acting field office director Tom Brophy told Wolf on May 22 that “I’ve instructed my staff my priorities are national security threats and public safety threats. If we do encounter somebody that is a subject of a final order but there’s no other compelling factor, criminality or national security threat, we can address that. It doesn’t mean they’re going to be detained, but right now my enforcement groups are focusing on criminals and national security risks.”

Alvarez had a final order of removal as of May 4, but he remained in detention, even with an order from a federal judge requiring he get a bond hearing or be released.

Brophy was slated to be replaced June 1 by his deputy, Todd Lyons, who told Wolf a similar story the next day: “What people want is for us to enforce immigration laws to focus on the worst of the worst and public safety, and that’s my intent.”

That wouldn’t seem to count Alvarez, who was arrested for driving without a license.

Did the stay count?

On May 29, Doyle filed a petition asking the First Circuit to review Alvarez’s case. She told the court that Alvarez was likely to succeed in his case because the BIA wrongly concluded he was not persecuted in El Salvador and because of ineffective assistance by his prior lawyer. Doyle also said that he’s likely to be eligible for “derivative asylum” if his wife gets asylum status; his wife was a victim of domestic violence in El Salvador.

And late June 1, she asked for an automatic stay. The court granted it June 4, lasting until June 18. But should the automatic stay count for purposes of Saris’ order that Alvarez be released?

It was not clear, and still isn’t.

On June 1, Doyle filed a “notice” with Saris observing the stay would be issued and “the government must hold a bond hearing.”

On June 5, the following Tuesday, Assistant United States Attorney Thomas Kanwit filed an opposition, saying ICE thought the automatic stay didn’t count, but “if respondent is incorrect, he requests clarification from the court as soon as possible.”

It didn’t come. On June 11, Doyle asked Saris to hold ICE in contempt for not holding the bond hearing. Still no word from the judge.

Stay of removal denied

Rebecca Adducci has been brought in from Detroit to run the Boston field office of Immigration and Customs Enforcement.

On Thursday night, the temporary stay expired, and on Friday morning, a three-judge panel of the First Circuit denied the stay: “Because petitioner has not made the required ‘strong showing that he is likely to succeed on the merits’ of his petition … the request for a stay of removal is denied,” wrote judges Jeffrey R. Howard, Sandra L. Lynch and O. Rogeriee Thompson. The one-page order gave no reasoning or explanation, typical for such stay denials.

ICE still can’t explain why they’re deporting Alvarez. Last week, Judge Wolf issued a 62-page decision castigating it for arrests of non-criminal husbands and wives of citizens and for failing to scrupulously follow the laws about their detention. Mohan, the ICE spokesman, said they are still trying to read the decision and understand it, and he still has not heard back about Alvarez.

Meanwhile Lyons, the ICE deputy who was supposed to become acting director June 1, seems to have been replaced. After Lyons, who testified before Wolf, stepped up as director on June 1, Rebecca Adducci, director of the Detroit field office, was brought in to replace him. There’s no explanation for the change, or why Lyons lasted only a week.

Doyle promises to keep working on Alvarez’s case: “We are not giving up the fight to bring Jaime and Tatiana back together.  Jaime still has a pending appeal with the First Circuit Court of Appeals and Tatiana will have her asylum hearing in the Immigration Court some time in the future. …The difficult and complicated legal procedures for immigrants makes it almost impossible to quickly resolve a case that has moved through much of the system, and when the courts don’t appreciate this fact, it makes our jobs even harder.  I am determined to see this family reunited. I just hope Jaime is alive to return once we are successful.”