MANHATTAN (CN) – Even though he has the 11th most common surname in the United States, Brooklyn-born Luis Hernandez came under suspicion by federal immigration officials after being picked up for a misdemeanor a little more than five years ago. He spent a four-day stint in Rikers Island after the Department of Homeland Security issued a detainer listing him as a match for Luis Enrique Hernandez-Martinez, a Honduran immigrant.
Refusing to excuse the mix-up, the Second Circuit revived the 45-year-old’s lawsuit on Tuesday.
“We reject the notion that the purported similarity between ‘Luis Hernandez’ and ‘Luis Enrique Hernandez‐Martinez’ is enough, without more, [enough] to establish probable cause to deprive someone of his freedom,” U.S. Circuit Judge Denny Chin, a Hong Kong-born immigrant who rose to become the first Asian-American federal judge outside the Ninth Circuit, wrote in a 40-page opinion.
“The government’s argument that it has probable cause based on the similar names ‘seems particularly rooted in the context of immigration enforcement and concerns about the interchangeability of foreign names,’” Chin added.
U.S. Circuit Judge Richard Wesley and U.S. District Judge Lewis Kaplan joined the unanimous three-judge decision, which overturns U.S. District Judge Laura Taylor Swain’s dismissal of the case last year.
Hernandez’s attorney Jeffrey Rothman said that he was gratified that the Second Circuit gave his client’s case received a second life.
“The way that the U.S. Attorney's office and the New York City Law Department have litigated this case to date has been extremely disturbing,” Rothman said. “Both offices seem totally indifferent to the fact that a native-born citizen of this country was unlawfully held in a city jail for four days on a federal immigration detainer. This is just as problematic as the underlying violations of Mr. Hernandez rights.”
New York City had not yet become a sanctuary city at the time of Hernandez’s arrest on Sept. 27, 2013. Such a status limits the cooperation between local and federal law enforcement.
During his arraignment on a public lewdness charge, Hernandez’s prosecutor had recommended a sentence of three days’ community service, only to be rebuffed by a state trial judge.
“You can’t ask for community service,” the judge said. “He has an ICE detainer.”
Beyond the discrepancies between the two names, Hernandez says, the government could easily have verified that he was a U.S. citizen by checking their own records, the Department of Corrections’ inmate lookup, and his state rap sheet.
The Second Circuit agreed with Hernandez and swatted away New York City’s claim that it reasonably relied upon the federal government’s immigration detainer.
“In defending this appeal, the government and the city point fingers at each other,” the opinion states. “The government argues that the city was responsible for Hernandez’s confinement and the city argues that it continued to detain Hernandez only because it was complying with the government’s detainer.”
Representing the federal government, the Southern District of New York declined to comment.
New York City Law Department spokesman Nicholas Paolucci pointed to a smaller victory in the ruling throwing out an allegation that it failed to train corrections staff.
“We’re pleased the court rejected plaintiff’s failure-to-train claim in this case arising out of the federal government’s mistaken issuance of a detainer," Paolucci said in a statement. "In 2014, the city enacted a law requiring a judicial warrant in order for DOC to honor a detainer which should prevent an error like this from reoccurring.”
New York City became a sanctuary jurisdiction in 2014, after Mayor Bill de Blasio signed legislation passed by City Council during his first year in office.
In March this year, the American Civil Liberties Union of Florida released a study finding that ICE issued detainers for a startling number of U.S. citizens in Miami-Dade County alone.
“Miami’s records show that between February 2017 and February 2019, ICE sent the jail 420 detainer requests for people listed as U.S. citizens, only to later cancel 83 of those requests – evidently because the agency determined, after the fact, that its targets were in fact U.S. citizens,” the ACLU of Florida wrote in an 11-page report. “The remaining individuals’ detainers were not canceled, and so they continued to be held for ICE to deport them.”
Referring to this study, the ACLU’s staff attorney Cody Wofsy noted: “This happens, and it happens with disturbing regularity.”
The ACLU, New York Civil Liberties Union and Immigration Law Center all supported Hernandez’s appeal in a friend-of-the-court brief, and Wofsy predicted the precedent today’s ruling creates would signal to cities and counties around the country that cooperating with immigration officials on ICE detainers could come at a price.
“Counties very much remain on the hook for this kind of egregious mistake,” Wofsy told Courthouse News in a phone interview.
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