EAST ST. LOUIS, Ill. (CN) – A Cuban sex offender will stay in jail pending a decision from the Court of Appeals. U.S. District Judge J. Phil Gilbert, who had ordered the man released, agreed with prosecutors who sought a stay, finding that public safety outweighs Pablo Santiago Hernandez-Arenado’s freedom in the short term.
Two weeks ago, Gilbert ruled that the U.S. could not continue to hold Hernandez-Arenado under the Adam Walsh Child Protection and Safety Act of 2006 because he was not in Bureau of Prisons custody.
Hernandez-Arenado has been in prison since 1984 after being convicted of sexual assault on a child less than 13 years old in New Jersey. He has been detained by the Immigration and Naturalization Service for the purpose of deportation since his prison term ended in 1987.
But Hernandez-Arenado was part of the Mariel Boatlift in 1980, and such prisoners pose a problem because no country, including their native Cuba, will accept them.
In 2005, the U.S. Supreme Court ruled that Mariel Cubans could not be held indefinitely for deportations that were not likely to happen in the foreseeable future. Hernandez-Arenado filed a habeas corpus petition and was granted release within 14 days.
In his opinion, Gilbert said the court must consider several factors when deciding to grant the United States’ motion for a stay of that decision. Those factors include whether the stay applicant has showed that they are likely to succeed on merits, whether the applicant will be irreparably injured without a stay, whether the issuance of a stay will substantially injure the other parties, and the public interest.
Gilbert ruled that the U.S. has a strong likelihood of succeeding on appeal and that the public interest is more important than Hernandez-Arenado’s immediate release.
“The Court is further cognizant of the fact that Hernandez is a convicted child molester who appears not to appreciate that his continuing attraction to young boys and willingness to act on that attraction is unacceptable in American society,” Gilbert wrote. “Thus, the Court believes he is likely to pose a grave danger to children if he is let out of prison. The harm he would be likely to inflict – child sexual molestation – is the sort that devastates victims for their entire lives. The Court believes that the risk of this irreparable, severe and long-lasting harm to the public greatly outweighs Hernandez’s liberty interest in his freedom for the relatively short time that remains before the Court of Appeals can decide this case.”