Why Is ICE Detaining a Gay Man Fleeing Persecution?

Jose "Ivan" Noe Nuñez Martinez is a 37-year old gay man who fled his native Mexico in 2001, when he was about 21 years old, because he feared for his life. He'd received violent threats because of his sexual orientation, and a gay friend of his there was murdered.  

In 2010, Ivan traveled back to Mexico to visit his mother, whom he feared was close to dying. After that brief trip, he tried to re-enter the United States. Agents from U.S. Customs and Border Protection apprehended him at the border and removed him pursuant to an expedited removal order. Nevertheless, Ivan's persistent fear for his life in Mexico soon caused him to try again to re-enter the United States, which he did.  

For nearly 17 years, Ivan has lived a peaceful and productive life in this country. He has paid income taxes and has worked unflinchingly hard. Above all, he has cherished his ability to live his life here in relative safety as an openly gay man. In 2014, Ivan met Paul Frame, the love of his life. They married in 2016 in a ceremony before their loved ones and friends. They count their wedding day as among the happiest of their lives.   

To ensure their continued life together in the United States, Paul, a U.S. citizen, began the process of trying to sponsor Ivan to become a permanent resident. On Jan. 31, 2018, he and Ivan attended what they thought would be a routine marriage interview at an office of U.S. Citizenship & Immigration Services in Philadelphia. It was anything but routine. Agents of Immigration & Customs Enforcement entered the office mid-interview and arrested Ivan, shocking and horrifying both him and Paul.   

Since Jan. 31, Ivan has been locked up by ICE at a prison facility in York, Pennsylvania. He has been given no opportunity to explain to an immigration judge why his confinement is unnecessary. Ivan doesn't understand why ICE is imprisoning him. Neither does Paul or anyone else who knows Ivan. 

Initially, ICE claimed it had authority to detain Ivan because of his old removal order. However, because Ivan expressed a reasonable and credible fear of persecution in Mexico due to his sexual orientation, his case was referred to an immigration court to decide if he deserves protection against removal to Mexico. Those immigration court proceedings are continuing and could take many months or even years to complete.   

In the meantime, detention is taking a heavy toll. Ivan has been losing weight, losing sleep, at times fearing for his safety in ICE custody. Paul has been suffering, too. He worries constantly about Ivan's physical safety, health, and mental well-being in detention. 

ICE has not explained why Ivan needs to be detained pending his immigration court proceedings. The ACLU of Pennsylvania, together with the law firm of DLA Piper, LLP, has filed a petition for a writ of habeas corpus on Ivan's behalf, asking a federal district court either to order Ivan's release or order that he be given a bond hearing where he can demonstrate why his detention is unnecessary. 

The United States should be a refuge for people who are fleeing persecution. We want the court to uphold that promise.

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Anonymous

If Mexicans are so hostile towards LGBT people why is it that schools with high populationd of latino students were some of the first to let transgenders choose their restrooms? You would think that the Mexican parents would throw a fit since Mexicans are so hostile to LGBT that it warrants granting asylums. Are we to believe that Mexicans who come to the USA magically morph from raging, dangerous homophobes to pro-LGBT liberals as they cross the border?

Anonymous

Only the US-funded gangs and drug cartels are homophobic. Ordinary Mexicans are fairly open-minded and laid-back. Mexican-Americans generally grow to empathize with the LGBTQ+ community, as both are targets of the American right's bigotry and abuse.

Anonymous

Utterly preposterous that being gay is grounds for asylum. Mexico is a huge country; he should just move to a different city.

Helen Damnation

You obviously have no idea what you're talking about. Moving to a different city is not an option for many, for several reasons. Many LGBT people have been brutally assaulted, beaten and even murdered just for being different from the bigots who commit such heinous acts of cowardice.

Dr. Timothy Leary

Maybe ICE is holding him because he has HIV.

Anonymous

You can now immigrate to the USA if you have AIDS. That changed during the Obama administration but I don't remember if it was a policy (which would have been changed by Obama) or a law (which would have been changed by Congress).

Anonymous

"Paid income taxes". Don't you need a SSN or ITIN to pay income taxes? Which are not available to illegal migrants.

Anonymous

You are incorrect. A taxpayer ID is available to everyone. It is obtained by applying to the IRS. One does not have to be a legal resident.

Prison guard

He broke the law once he never show up in court.keep him in jail then deport.

An immigration ...

You’re writing for a legal organization, you should at least get the law right. Here’s what we know based on the facts you’ve stated:

This man will not get asylum. At most, he’s eligible for withholding of removal or CAT relief because of his prior order. INA s. 241(a)(5). That’s not even counting the one-year bar issue. INA 208(a)(2)(b).

He also couldn’t have actually gotten a green card through his husband because he was inadmissible under INA 212(a)(9)(C) for illegally reentering the US after a year or more of unlawful presence. Not to mention 212(a)(9)(A) for reentering after a prior order of removal. Whatever attorney advised them to file an I-130 in that situation committed malpractice.

As for detention for those who are subject to a reinstated prior order, the law is clear on custody and the Judge literally doesn’t have jurisdiction to release someone from custody. If you’re aware of some reason that a positive reasonable fear finding changes that I’d love to see the citation.

Is this law harsh? Yes. But we own it, all of us, and until we can convince a majority of elected reps to change it, that’s how it’ll be. But it’s irresponsible and dishonest to claim that this is some kind of bizarre discretionary action when this entire situation is dictated by law and regulation. As it was during the last administration, where this exact same thing would have happened.

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