ICE Accused of Trampling Court-Access Rights of Detainees

BOSTON (CN) – Pushing a federal judge to step in, attorneys in Massachusetts say their client has never been convicted of a crime but could be deported because immigration officials refuse to let him attend his own court hearings.

The hearings that Samuel Pensamiento needs to attend stem from his arrest late last year on misdemeanor charges of leaving the scene of a car accident.

Attorneys at the American Civil Liberties Union and the firm Foley Hoag note 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 for a pretrial hearing.

And although Pensamiento is married to a U.S. citizen with a baby on the way, the ACLU says U.S. Immigration and Customs Enforcement is seeking to have their client removed to Guatemala, a country that Pensamiento allegedly fled to escape persecution.

The ACLU contends that the outcome of Pensamiento’s misdemeanor charges is critical to his deportation proceedings — indeed the immigration judge relied on the charges in opting to deny Pensamiento bond.

For the last several months, however, ICE has allegedly been ignoring court orders that require the agency to transport detained immigrants to court.

The ACLU says Pensamiento confronted this policy firsthand on March 5 when he was supposed to appear at Chelsea District Court for his next pretrial hearing.

With this hearing now reschedule for March 19, the ACLU petitioned a federal judge this week for a writ of habeas corpus and moved for a temporary restraining order.

Though dated March 12, the filings but remain unavailable in the federal court-records database PACER, short for Public Access to Court Electronic Records. Representatives at the ACLU provided copies Wednesday, however, after a weather-related delay.

“Mr. Pensamiento will suffer severe prejudice if he cannot respond to the pending charges,” the ACLU said in one memo supporting the motion. “He will be defaulted, a warrant for his arrest will likely issue, and his counsel will no longer be appointed to his case. Further, his detention is premised upon the allegations of the police report related to that incident, which cannot be resolved until he appears. Lastly, if he is later deported without an opportunity to resolve the pending charges, they will likely prevent him from ever obtaining a visa to return to the United States to reunite with his wife and child.”

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.

The ACLU notes that, in contrast to the severe harm Pensamiento is likely to face if he is unable to attend his district court hearings, “there is no harm whatsoever to ICE or the Sheriff’s Department if he is transported.”

“The Sheriff’s Departments routinely and securely move prisoners throughout the Commonwealth for exactly this purpose, and Mr. Pensamiento will be returned to the PCCF as soon as his hearing is complete,” the memo states, abbreviating the name of the correctional facility in Plymouth. “Indeed, respondents’ refusal to allow ICE detainees to attend court hearings senselessly interferes with both the rights of defendants and the integrity of Massachusetts courts.”

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 trend with a policy directive on Jan. 10.

The ACLU’s filings concede that Pensamiento entered the United States without inspection in July 13 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.

Pensamiento met his wife, Yaritza Moreno, at the restaurant where they worked. Expecting the couple’s first child due in May, Pensamiento had been working two jobs before his arrest, according to the ACLU’s court filings.

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.

“This is yet another local example of a senseless ICE policy that undermines our state’s institutions and disrupts lives,” Carol Rose, executive director of ACLU of Massachusetts, said in a statement Monday. “Beyond separating Mr. Pensamiento from his family and his community, ICE is also interfering with his constitutional rights to due process and barring state courts from doing their job to provide access to justice for all Massachusetts residents.”

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