Illegal Detention by ICE Followed by Successful Release from Custody and Termination of Removal/Deportation Proceedings
October 13th, 2020
Nelson was born in El Salvador and entered the United States by crossing the border in 2005. While crossing the border, he was caught, and he gave a fake name and said he was from Mexico. The government took his fingerprints and sent him back to Mexico without an order of removal. Five days later he re-entered the United States and has remained ever since. Nelson settled down with his wife in New Hampshire, had 2 U.S. citizen children and became a valued working member of his community, In 2015, he was pulled over by the Nashua Police Department and was charged with Unlicensed Operation of a Motor Vehicle. He paid a fine and his case was dismissed. In January 2019 he was once again pulled over for Unlicensed Operation, but this time he was arrested. He went to court, paid a fine and his case was dismissed. Due to his encounters with the law he decided not to drive again.
On February 3, 2020, at 4:00 in the morning, Nelson exited his apartment building with his wife and was about to go to work as a cook in a nearby hotel. His wife noticed a black truck in front of the building. Nelson and his wife entered into their car, and the wife entered the driver’s seat. After they pulled out of their parking lot, they noticed that the truck started following them. After a mile or so, the truck activated the “police” lights and Nelson’s wife pulled into an empty parking lot. Two armed individuals, who were later identified as ICE agents, emerged from the truck with their guns pulled out and demanded Nelson and his wife to exit the vehicle. Nelson and his wife respectfully declined because they did not see a cause for the “officers” to pull them over. The officers posted a list of names in the window and asked if Nelson was any of the persons in that list. Nelson declined to speak to them and requested an attorney. The officers threatened Nelson to destroy the window of the vehicle and to drag him out if he did not exit the vehicle. Nelson called for the Nashua police to come, because he did not think the ICE officers had a reason to stop them. A Nashua police officer came to the scene and did not order Nelson out of the vehicle. One of the ICE officers resorted to breaking Nelson’s car window and violently dragged Nelson out of the vehicle threw him to the ground and took him into custody. Nelson’s wife was also arrested and later released.
Nelson was taken into ICE custody and placed into removal proceedings. Nelson’s wife contacted a local attorney in Nashua to get Nelson released from custody. When a person is in ICE custody, this person generally only has one chance to get released by an Immigration Judge. Unfortunately, the local attorney failed to properly present Nelson’s custody case to the Immigration Judge and Nelson was ordered to remain in detention. Frustrated by this outcome, Nelson’s wife was referred to FitzGerald Law Company with the hope to obtain proper representation on Nelson’s case. After the immigration attorneys at FitzGerald Law Company reviewed the case records, they identified that Nelson’s arrest was a violation of his constitutional rights. The attorneys at FitzGerald Law Company filed a “Motion to Suppress”, requesting the Court not to consider evidence obtained pursuant to the unlawful acts of the government. Motions to Suppress in Immigration Court are rather scarce and atypical because the law states that they are not available in Removal Proceedings unless “an egregious violation” of the immigrant’s rights occurred. During that time, the COVID-19 crisis hit the country, and Nelson was still in custody and at high risk of seriously contracting COVID due to his underlying medical conditions. The attorneys at FitzGerald Law Company filed a request for the release of Nelson with the Immigration Court and with ICE. After a protracted battle, ICE released Nelson from custody, but his deportation case was still ongoing, and the danger of Nelson being separated from his US Citizen children was looming.
The Immigration Court found that the immigration lawyers at FitzGerald Law Company were able to show that based on ICE’s own report of Nelson’s arrest, they made an egregious violation of his Fourth Amendment rights, and now ICE had to show that they followed all procedures and were justified in detaining Nelson the way they did, otherwise, the removal proceedings against Nelson had to be terminated.
ICE responded to this request by amending the report of the incident and adding false information. The attorneys at FitzGerald Law Company quickly identified the misrepresentations in the amended report and vigorously objected to their introduction in Court, offering evidence that clearly disputed the amended report.
As a result of the objection, ICE was forced to withdraw the case from the Immigration Court. Nelson’s removal/deportation proceedings were terminated and his rights were ultimately protected. Government offices such as ICE wield significant power, and the Trump administration has encouraged them to believe they are even above the law