EL PASO, Texas, Sept. 26 (UPI) -- Lenin Hernández Argujo, 22, fled El Salvador to the United States in May 2016 after the MS-13 gang threatened and tried to extort him.
Hernández presented himself to immigration officers at the downtown international bridge in El Paso, Texas, to request asylum -- and has been in detention ever since, 28 months.
Hernández's lawyer Carlos Spector and the American Civil Liberties Union filed a petition in federal court in El Paso on Friday, requesting a bond hearing in front of a neutral judge who can decide if he is a flight risk or poses a danger to the community.
"Locking away this young man for years on end without cause is illegal, cruel, and unjust," Kristin Greer Love, a staff attorney with the ACLU of New Mexico, said in a press release.
Stories like Hernández's are becoming more common on the U.S.-Mexico border, as parole is repeatedly denied and asylum seekers languish in detention.
"It used to be the case that about 80 percent of asylum seekers received parole so they could fight their cases while free. Now it's almost nobody," Spector said.
Regional Immigration and Customs Enforcement offices, including El Paso, started issuing blanket denials of parole during the Obama administration. The practice has become the norm under President Donald Trump, Spector said.
"Seeking asylum is not a crime, and Mr. Hernández does not pose any risk to our community. Yet the government has kept him behind bars for almost a tenth of his life," Greer Love said in a press release, calling his detention "unjustified and undeserved."
The ACLU has been fighting the practice, filing a class-action lawsuit in March in U.S. District Court in Washington, D.C., arguing that ICE is involved in "systematic detention" of asylum seekers at five field offices -- El Paso, Detroit, Los Angeles, Newark, N.J., and Philadelphia.
In July, a federal court issued an injunction against routine parole denials at the five offices, requiring officers to provide individual explanations for continued detention. At least 1,000 people were affected, including Hernández.
Fleeing deadly threats
Spector says ICE still did not release Hernández because his asylum claim was still pending.
Like most people seeking asylum from Central America, Hernández's claim rests on fear for his life. He was threatened by the MS-13 gang in El Salvador after he refused to work for them in May 2016.
In his petition for a bond hearing, Hernandez quoted a gang member, who told him: "The killing would be painful." The gang gave Hernández a day to decide his fate and warned him about going to the police.
He fled El Salvador, traveled through Mexico and made it to the bridge at Juárez two weeks later.
ICE spokeswoman Leticia Zamarripa said Wednesday that Hernandez "remains detained in ICE custody pending disposition of his immigration case." She couldn't comment further because of the pending litigation, she said.
Alan Dicker, an organizer with El Paso's Detained Migrant Solidarity Committee, said detention cuts people's access to legal services.
"A person who is detained has a much lower chance of winning their claim than a person who is not detained," he said. "They can go around and shop for attorneys and generally they have more time for that, too. They have the ability to make phone calls without being charged for them. They have the ability to get documents from people in their home country without having to go through what is essentially a prison phone system and a prison commissary system. There are so many different ways that somebody's ability to fight their case is really cut off when they are stuck in a detention center."
Checking the boxes
ICE detention is the first step in processing an asylum claim. ICE then has discretion to parole asylum seekers into the United States on bond while they litigate their claim. To obtain parole, asylum seekers must prove their identity, commit to showing up for court dates and not be a danger to the public.
Hernández's lawyers say he has successfully proved his identity and that he will live with relatives in California who will ensure he shows up to court. His uncle is a naturalized U.S. citizen and his grandparents are legal permanent residents, all residing in Santa Ana, Calif. The family has agreed to support Hernández through his asylum proceedings. Court documents state the government has conceded he is not a danger to the public. Hernández does not have a criminal record in El Salvador, where he was a student.
Yet he has repeatedly been denied parole by ICE officers, according to court papers filed by his lawyers.
"ICE is also the jailing authority," said Spector, who has represented asylum seekers in El Paso for 30 years. "My client has not been in front of a neutral judge to assess his parole request."
ICE officers in the El Paso field office denied Hernández parole using a checklist form. In the second denial, an ICE officer ticked boxes that Hernández would be a flight risk because a bond "would not ensure to ICE's satisfaction, your appearance at required immigration hearing pending the outcome of your case."
The ICE officer also ticked a box stating after its previous decision to decline parole "you have failed to provide additional documentation or to demonstrate any significant changed circumstances which would alter ICE's previous determination."
Hernández's lawyers say those are not factual reasons for denying parole.
"That he's denied parole without any concrete reason by ICE is not unique at all," said Dicker, whose volunteer committee is part of the Borderland Immigration Council and has produced reports on ICE detention facilities, including the El Paso Processing Center, one of two places Hernández has been held.
Hernández's petition seeking a bond hearing includes documents verifying his uncle's U.S. citizenship and several months of pay stubs and his federal tax return showing employment as a bookkeeper in California.
"Pro forma denials are essentially what happens to every detained asylum seeker who requests parole. ICE uses form letters and checks boxes with really vague language. We see people who have presented a bunch of different forms of identification and still ICE officers check off a box that says they haven't proven their identity to ICE's satisfaction," Dicker said.
"ICE has broad discretionary power -- that's the nub of the issue here -- and they use it for the purposes of locking people up and deporting them. ICE rarely uses it for alternatives to detention," he said..
Denials result in repeated appeals and indefinite detention.
"When you appeal, you are locked up and you are still waiting another year or two," Spector said.
ACLU attorneys call the practice capricious, saying it goes against ICE's parole directive, which says officers must review parole applications based on guidelines applied to individual cases. If an asylum seeker is neither a flight risk nor a danger to the public, and with identity successfully established, then ICE can grant their release on humanitarian grounds or public benefit.
Hernández's prolonged detention is complicated by the fact that he was defrauded by a woman pretending to be an attorney and had to begin his asylum application again after a year in detention.
Spector said ICE was to blame for that, too.
"Annette Briones was the first lawyer who represented Hernández and she was not even a lawyer," he said. "ICE was negligent because officers let Briones into the detention facility as an attorney but failed to check her credentials or criminal record."
Briones was convicted in El Paso in 2007 for fraudulently altering a government document. She was sentenced to one day in jail and fined for passing herself off as a licensed school psychologist in a school district job application.
"Because Lenin is locked up, he hasn't been able to file a criminal complaint about Briones because his detention means he cannot go to the El Paso police station. That would make him eligible for a U-Visa, a special visa for victims of crime. I've tried to file a complaint with ICE and they did nothing. Then I approached the Inspector General's Office and they did nothing, too. Now I am talking to the FBI," Spector said.
Love said indefinite detention is an intentional strategy to get asylum seekers to give up and go home.
"The U.S. government has a policy of detaining asylum seekers in the hopes that the misery of prolonged and arbitrary detention will deter others from seeking safety in the United States. This inhumane and xenophobic policy is a stain on the character of our nation and should end immediately," she said.
In 2017, Mexican journalist Martín Méndez Pineda requested asylum at the downtown international bridge from Juárez to El Paso after months of threats from Mexican security forces for reporting disappearances in Acapulco. ICE detained him at the West Texas Detention Facility in Sierra Blanca, about 90 miles from El Paso.
Conditions in detention eventually forced Méndez Pineda to agree to his deportation. He told the Dallas Morning News about Sierra Blanca: "small, with metal bunks, worn-out rubber mattresses, wooden floors, bathrooms with walls covered in green and yellow mold, weeds everywhere and snakes and rats that come in at night."
ICE denied the journalist's two parole requests because he lacked ties to the United States and might be a flight risk. Méndez Pineda gave up on his asylum claim and was deported to Mexico.
Reporters Without Borders calls Mexico one of the world's most dangerous countries for journalists. This year, nine journalists have been slain in Mexico.