Feds Must Allow Alien Deportee to Attend State Criminal Proceeding

BOSTON (CN) – A federal judge on Thursday ordered customs agents to allow a detained Guatemalan man facing removal from the country to attend state court proceedings for separate a misdemeanor criminal charge.

After hearing arguments from attorneys representing the federal government and the American Civil Liberties Union, U.S. District Judge Allison Burroughs ruled that Samuel Pensamiento must be allowed to attend a March 19 hearing to face charges of fleeing the scene of an accident.

He will then return to Immigrant and Customs Enforcement custody immediately after the hearing, Burroughs said.

Pensamiento, who was in the process of applying for permanent resident status through his US citizen wife, was detained by officers acting on behalf of ICE when he returned to Chelsea District Court for a pretrial hearing.

“Due process and access to justice are among our most important rights; rights that must be guaranteed to everyone in this country, no matter where you come from or what your immigration status is,” said ACLU of Massachusetts Executive Director Carol Rose in a written statement. “Today’s order sends a clear message: ICE can’t strip people of those rights simply because they are immigrants.”

Pensamiento’s arrest is an example of a nation-wide trend of immigration enforcement officers detaining immigrants at courthouses.

On Thursday The Committee for Public Counsel Services’ Immigration Impact Unit, the Lawyers’ Committee for Civil Rights and Economic Justice and Greater Boston Legal Services filed a petition in the Commonwealth’s highest court, seeking a “writ of protection” to prevent federal immigration officials from arresting individuals on civil immigration matters while they attend to court business.

The groups cite a list of individuals that are too afraid to access courthouses due to recent ICE activity, including a woman who needs to renew a restraining order against an abusive ex-husband; a woman seeking guardianship for her disabled adult daughter; a crime victim who wants to serve as a witness in criminal proceedings against his assailant; and a juvenile who needs the testimony of a critical witness who is too afraid to testify in court.

“These individuals, like thousands of other immigrants across the State, have pressing issues that need recourse before the courts,” said Ivan Espinoza-Madrigal, Executive Director of LCCR, in a statement. “But because of increased immigration enforcement in and around courthouses, they are scared to go to court. When people fear our judicial system that undermines the very fabric of our society and weakens communities.”

Attorneys at the American Civil Liberties Union and the firm Foley Hoag noted in Pensamiento’s habeas corpus request that their 26-year-old client was released on personal recognizance at his arraignment, only to be taken into federal custody on Jan. 31 when he returned to the Chelsea District Court.

The ACLU says U.S. Immigration and Customs Enforcement is seeking to deport its client to Guatemala, a country that Pensamiento allegedly fled to escape persecution, despite the fact he is married to a U.S. citizen with a baby on the way.

For the last several months, however, ICE has allegedly been ignoring court orders that require the agency to transport detained immigrants to court, which puts Pensamiento at risk for losing his case by default.

A loss would become his first criminal conviction, which in turn would give ICE justification for deportation.

After Pensamiento  missed a March 5 hearing, it was rescheduled for March 19, leading to the ACLU filing for a special order that would allow him to appear in state court.

Since his arrest by ICE, Pensamiento has been held at the Plymouth County Correctional Facility, which has contracted with the federal government to hold immigration detainees.

Representatives for ICE did not respond to an email seeking comment.

In addition to defending Pensamiento’s constitutional right to attend court proceedings, the ACLU has for the last several months been challenging the recent surge of ICE officers making arrests at courthouses.

Thomas Homan, deputy director of ICE, formalized the effort with a policy directive on Jan. 10.

The ACLU’s filings concede that Pensamiento entered the United States without inspection last July, but notes that an immigration judge had ordered his removal proceedings to be administratively closed on Sept. 20, 2017, because his marriage a year earlier gave him a pathway to getting a green card.

In addition to his pending asylum claim, Pensamiento has a applied to become a lawful permanent resident. He has work authorization and a valid Massachusetts driver’s license.

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