HOUSTON (CN) – With a tumor growing in her breast, a Pakistani woman who’s lived in Texas with a spotless record for 23 years could not persuade a federal judge to free her from an immigration jail to get medical treatment.
U.S. District Judge Nancy Atlas did, however, tell Immigration and Customs Enforcement to take Roshan Akbar Momin from the Houston Processing Center, a private immigration prison, to see her Houston doctor, and then return her to prison.
Momin, 48, a convenience store clerk, lives with her husband and their two U.S. citizen sons, both born in America, in a suburban Houston home they bought in 2011, according to her federal habeas petition.
ICE arrested her in late October last year, on a 1994 deportation order. Momin had just received test results that a tumor in her breast was likely malignant and doctors recommended she have it removed.
Her attorney Simon Azar-Farr said in an interview that Momin entered the United States at Chicago’s O’Hare International Airport in December 1993 with a passport and a visitor’s visa that an immigration inspector suspected was counterfeit.
Momin says in the habeas petition that the inspector gave her a “form I-546 Order to Appear — Deferred Inspection,” telling her to report to the Immigration and Naturalization Service office in Chicago, listing the date and time of the appointment “To Be Determined.”
“At that point she goes to Houston, joins her husband and they never hear anything,” Azar-Farr said. “They hear no news at all and life goes on. She has two children, no criminal record, works as a cashier, supports the family, helps the husband, until one of the children reaches age 21.”
The Immigration and Naturalization Service no longer exists; its functions were absorbed by three branches of the Department of Homeland Security, which the government formed in 2002 in response to the Sept. 11 terrorist attacks.
After turning 21, Momin’s eldest son filed a petition for an alien relative for her with U.S. Citizenship and Immigration Services.
The government says such petitions promote family reunification. The beneficiary can obtain legal permanent residence and get a green card.
Azar-Farr said the government approved the petition for Momin, but when she went to a CIS office for an interview in late summer 2016 she was blindsided by the 22-year-old deportation order.
“CIS told her, ‘Ma’am we can’t give you your residency because there’s an order of exclusion against you. You were put in exclusion proceedings in 1994, the year after you came.’ And she said, ‘Well, I never got notice that I was supposed to go to court.’ And they said, ‘Well, it’s here, we can’t give you residency,’” Azar-Farr said.
A few weeks later, before she could schedule surgery to remove the lump in her breast, ICE agents went to her house and arrested her.
She says in the Feb. 22 habeas petition that her continued detention violates her right to due process.
Momin says she didn’t know about the removal order because she never got notice of the removal hearing that a Houston immigration judge issued in February 1994, because it was sent to the wrong address and returned to the INS as undeliverable.
“Despite this fact, the immigration judge conducted an exclusion hearing in absentia, and on March 31, 1994, issued an order of exclusion and deportation. This order was mailed to the same address as the [hearing] notice and it was also returned as undeliverable,” the complaint states.
Adding to the irony, exclusion orders against people who are considered never to have entered the United States, though Momin has been here for 23 years.
Azar-Farr said ICE refused to release Momin four times after a Houston immigration judge recognized the mailing errors and rescinded the deportation order in December.
ICE Field Office Director Patrick Contreras downplayed Momin’s possible breast cancer in a Jan. 19 letter explaining ICE’s decision not to release her, saying her medical condition is “treatable by DHS medical staff,” and adding that she “poses a flight risk as she has absconded from her exclusion order for more than 20 years.”
Momin says the only medical care she has received in lockup is Tylenol.
Azar-Farr said in the interview that Momin has a strong case for a green card, given her family ties to the United States and no criminal history, but CIS could take months or years to process her application, and immigration judges have no jurisdiction over it, so they cannot step in to speed up the turnaround time.
“Momin is very likely to be granted lawful permanent residence, and thus has everything to lose, and nothing to gain, by failing to appear before the agency. She is so stable, and her roots in the Houston community so deep, that it is virtually inconceivable that she would ‘abscond’ from the exclusion proceedings currently pending,” Azar-Farr wrote in Feb. 23 request for a temporary restraining order.
The Justice Department argued in a Feb. 28 dismissal motion that Momin’s habeas case is moot because DHS has agreed to take her to her doctor’s appointments.
The Department of Homeland Security is the parent agency of ICE and CIS.
At a Tuesday hearing, Judge Atlas did not address the merits of Momin’s wrongful detention claims, but did agree that Momin needs to be examined immediately, and ordered immigration agents to take Momin to see her doctor on Thursday and return her to the Houston immigration prison.
Azar-Farr said he’s happy with this interim resolution, but he’s concerned how Momin will recover in prison if she has surgery.
“If they decide to do a surgery and remove this thing, she’s going to need at least a week of rest. She’s going to need to be bathed, she cannot take regular showers, she needs to have a 24/7 nurse to bathe her and clean her, she’s going to need to take medications, some of them are painkillers, some of them are scheduled meds, that cannot be taken into the facility,” he said.
“There’s always the risk of infection at the facility, lack of proper showers and so on and so forth.”
Azar-Farr said Judge Atlas limited the Tuesday hearing to Momin’s pressing medical needs, and said she would address whether to release Momin from ICE custody for surgery if and when doctors decide to put her under the knife.
Azar-Farr added that though he doubts the government’s shift to tougher immigration policies under President Donald Trump is directly bearing on Momin’s case, she probably would not have been detained under past administrations.
“This sort of thing likely wouldn’t have occurred under George W. Bush’s presidency or Barack Obama’s presidency, simply because detention priorities were very different,” the attorney said.
“Detention priorities have always been towards people with serious criminal records, felonies and things of that sort, but now it’s sort of an ‘arrest everybody’ attitude, so they go after the easiest of cases.”
ICE did not respond to an email asking it how long it plans to detain Momin, whether the Houston Processing Center is equipped to treat breast cancer patients, and how much it costs the government to detain an immigrant there.
In court filings, Momin’s attorney estimates the daily cost of her detention as $127 to $161.
“A conservative estimate of the cost of Mrs. Momin’s detention to the United States is over $15,000 so far. Escorting her to physician appointments or providing the medical care her own team would otherwise provide will increase that cost significantly, particularly if her condition has worsened in the intervening four months,” according to her request for a temporary restraining order.