ICE agents arrested the undocumented man at a mandatory meeting with immigration to obtain a visa.
The American Civil Liberties Union is fighting to end the monthslong detention of an undocumented gay man by Immigration and Customs Enforcement in Pennsylvania.
On Tuesday, the ACLU of Pennsylvania filed a legal complaint in federal district court, asking the judge to order the release of Jose “Ivan” Nuñez, a Mexican man held by ICE since Jan. 31. According to the court filings, Nuñez came to the U.S. 17 years ago because he feared persecution in his home state of Michoacán due to his sexual orientation.
ICE agents arrested Nuñez in late January, at a meeting he and his husband ― who is a U.S. citizen ― attended with immigration officials from U.S. Citizen and Immigration Services (USCIS) as part of the process to obtain a visa. ICE officials “stormed into the room,” as the ACLU put it in its release, and detained Nuñez ― and have been holding him at York County Prison, about 90 miles west of Philadelphia, ever since.
Nuñez, 37, has been living in the U.S. since he came here in 2001, at 21 years old.
“I’ve never had this situation happen, in 13 years working in Philadelphia, that they call another agency to detain him,” Nuñez’s lawyer Audrey Allen told HuffPost in February. “I think the ramifications of this are going to be widespread. It will have a chilling effect on people making applications for fear that they won’t walk out of the building where they are being interviewed.”
USCIS said in a February statement that “it is the standard practice of USCIS to notify ICE if we have individuals at our offices who have warrants of deportation or are in proceedings.”
On Tuesday, ICE said in a statement that the agency does not comment “on pending litigation,” but confirmed it was currently holding Nuñez after having arrested him for being “unlawfully present” in the country, since he was removed from the U.S. in 2010 and re-entered illegally.
Nuñez left the country briefly that year to attend to his sick mother in Mexico, according to the ACLU filing. When he re-entered the U.S., border patrol agents apprehended him and ordered his removal. Nuñez later unlawfully re-entered, still fearing for his life for being gay in Mexico.
The Trump administration has made it a priority to crack down on illegal immigration. ICE Acting Director Thomas Homan said in June that undocumented immigrants should “look over [their] shoulder.” While ICE has the right to seek removal of anyone in the U.S. without documentation, the agency has increasingly been arresting undocumented immigrants who don’t have criminal convictions. Nuñez has no criminal record in his nearly two decades in the U.S., his lawyer said.
Nuñez fled Mexico in 2001, after a closeted, gay friend of his was murdered when rumors came out about his sexual orientation, according to the ACLU’s filing. Nuñez himself was also threatened, by the family of a woman he had been dating at age 19 or 20 (when he was still closeted), after people saw him “engaged in public displays of affection” with a man at a party.
In February, an asylum officer with USCIS interviewed Nuñez and approved his claim of a “fear of return” as credible, sending his case on to immigration court. Nuñez’s lawyer then filed an application with ICE late that month, asking them to release Nuñez while his case moved through the courts, which could take months. She says she hasn’t heard from ICE since.
According to the ACLU’s court filing, ICE has the power to release Nuñez at any point.
While Nuñez’s husband has been able to visit him in detention, the center is over two hours away from their home in Philadelphia.
“I am very worried for his well being,” Nuñez’s husband Paul Frame said in the ACLU’s release. “The level of anxiety and sadness that I feel when I think about him at the detention center or when I visit him is unreal, so I can only imagine the toll it has taken on him personally. No human being should be torn apart from their loved ones in this manner.”
Nuñez is seeking a type of relief called “withholding of removal” ― as he does not quality for asylum due to his prior deportation. The next hearing for his case is in August. The ACLU’s legal complaint is requesting that he be released in the interim, as “he poses no danger to the community and is not a flight risk.”
Allen also hopes that simply filing this request in court could pressure ICE into releasing him sooner.
“Sometimes when you file in federal court, it puts pressure on ICE ― maybe they will do their jobs and make a decision,” Allen said Tuesday. “I don’t know if, given the political climate, they just really don’t care.”