El Paso

Cuban Asylum Seeker Remains Detained by ICE Without Parole

A U.S. Immigration and Customs Enforcement (ICE) agent waits as a group of undocumented men, not pictured, are deported to Mexico at the U.S.-Mexico border in San Diego, California, U.S., on Thursday, Feb. 26, 2015.
David Maung/Bloomberg via Getty Images

Cuban Ariel Guzman waited four months in a Mexican border town for his turn to seek asylum in the U.S., legally.

Immigration agents placed Guzman -- whose anti-communist views made him a target of the Cuban government -- in handcuffs and chains and bused him to federal detention.

"We came to a country where freedom of expression is permitted, where liberty is allowed," the former IT professional told the El Paso Times, speaking for himself and other detained Cubans. "We understood that the United States is a place that respects laws, the only country that has signed all the international accords on human rights."

"So we don't understand why they have detained me and the other asylum seekers without parole," he said. "They have in many cases given incoherent explanations."

Detention without parole remains a centerpiece of the Trump administration's crackdown on asylum seekers. ICE field offices including El Paso, Los Angeles and New Orleans are increasingly denying parole, a conditional release which allows asylum seekers to live in the U.S. while pursuing their claims, according to the ACLU.

At four immigrant detention centers run by U.S. Immigration and Customs Enforcement in West Texas and New Mexico, an asylum seeker's chance of earning parole is shrinking drastically, according to data compiled by the ACLU as part of an ongoing court case. The parole grant rate dropped from about 75% in July 2018 to 58% in October 2019. It fell again to 36% in November and December.

The El Paso Times interviewed Guzman on numerous occasions, as well as a dozen Cuban, Venezuelan, Indian and Guatemalan asylum seekers held at the Otero County Processing Center, all denied parole in the past six months. At least seven said they were denied parole after being found to have a "credible fear" of persecution in their home country.

In asylum cases, ICE can release asylum seekers "on parole" to a sponsor. They are then responsible for attending court hearings or ICE check-ins; ICE can also apply alternatives to detention, such as a GPS ankle monitor or mandatory cellphone check-ins.

During President Donald Trump's first year in office, in 2017, ICE field offices across the country began categorically denying parole to detained asylum seekers, including in El Paso where the grant rate reached zero, according to the ACLU.

The ACLU sued El Paso and four other ICE offices with parole rates at or near zero -- Los Angeles, Detroit, Newark and Philadelphia -- and won an injunction that pushed the parole grant rates back up.

"A few years ago, field offices were granting parole in 90% of cases under an Obama-era policy," said Michael Tan, deputy director of the ACLU's Immigrants' Rights Project. "In a nine-month period in 2017, the five field offices were denying parole in 100% or nearly 100% of cases. You saw a clear crackdown and a blanket detention policy rolled out, including in El Paso."

But the administration never officially, or publicly, changed its parole policy, Tan said.

ICE declined to comment on the parole grant rate for asylum seekers in El Paso, citing the pending litigation.

"However, lack of comment should not be construed as agreement with or stipulation to any of the allegations," ICE said in a statement. "Our trained law enforcement professionals adhere to the (Department of Homeland Security's) mission and values, and uphold our laws while continuing to provide the nation with safety and security."

Of roughly 40,000 detainees in ICE custody as of Jan. 18, 22% have established claims of persecution or torture that open the door to an asylum claim, according to ICE data. Two-thirds of ICE detainees, including Guzman, have no criminal records.

Those who are found by U.S. Citizenship and Immigration Services asylum officers to have a "credible fear" of returning to their home country are eligible for parole.

Guzman passed his credible fear interview, according to a transcript obtained by the El Paso Times. But he received his parole determination Nov. 18 and was denied.

The trouble that forced Guzman to flee Cuba started with Facebook.

Guzman was teaching computer skills at a youth program on the island when he signed up for the social media site in 2010. He didn't realize the Cuban government ? controlled by a Communist regime for 50 years at the time ? viewed the site with deep suspicion.

"State security agents found out immediately, from spying on the servers," said Rolando Fernandez, a childhood friend who fled Cuba for Dallas in 2016. "They fired Ariel and dubbed him a 'counter-revolutionary.' He couldn't find another job, because 90% of jobs in Cuba are tied to the government."

Guzman said he spent the next nearly nine years washing cars to put food on the table for his son and mother, who has lupus, a serious autoimmune condition. He didn't consider leaving Cuba, he said, to care for them.

"I couldn't abandon them," he said.

But in late 2018 and early 2019, as the Cuban government prepared to approve a new constitution, Guzman spoke out against it -- in particular, a tenet that enshrines socialism as the country's governing model. He shared his opinions in public debates held by the government.

He paid a price for speaking freely. Political police questioned him multiple times, held him and beat him on several occasions, according to the transcript of Guzman's account to an asylum officer, taken under oath.

Fernandez corroborated the story. "They started to visit his house," he said. "They threatened to take away his mother's medicine. Then, a friend who also spoke out disappeared. I visited Cuba around that time and I told him, `Your only option is to request asylum in the U.S. or hide in an embassy.' His life was in danger."

Detained immigrants, including asylum seekers, have few of the rights of those in the criminal justice system.

Although they may hire counsel, they aren't entitled to a public defender. Law and legal precedent sets limits on the detention of immigrants for immigration violations, but ICE can hold them for the duration of their immigration proceedings. That can take months or years if court dockets are full, or if a case is appealed.

Unlike the criminal justice system, the immigration court system ? currently overwhelmed by more than 1 million pending cases ? is governed less by law than by policy, which can be variable and influenced by politics.

"It's counter-intuitive because our whole criminal justice system is based around the idea that you are innocent until proven guilty," said Sarah Pierce, policy analyst with the nonpartisan, nonprofit Migration Policy Institute in Washington, D.C.

"But when you step into immigration law, the idea is you are guilty until proven innocent," she said. "Like much of immigration law, it's completely up to the officers holding the case file."

Guzman tried to follow the letter of the law. He reached Ojinaga, a small Mexican border town south of Presidio, in June and put his name on the list of asylum seekers hoping to cross the border legally. He waited four months for his number to be called by U.S. Customs and Border Protection and he entered at the official port on Sept. 19.

"I wanted to do everything the legal way," he said. "I waited my turn, which is what the law says to do."

But while he was waiting, in July, the Trump administration issued an asylum ban that required asylum seekers to first seek refuge in a country other than the U.S.

The ban is being challenged in court. In November, a U.S. District Court judge issued an injunction exempting all non-Mexican asylum seekers "who were unable to make a direct asylum claim at the U.S. (port of entry) before July 16, 2019, because of the U.S. Government's metering policy." Then, the 9th Circuit stayed the injunction; the ban is in force while on appeal.

ICE first transported Guzman to New Mexico's Torrance County ICE detention center, where an asylum officer interviewed Guzman in October for an hour and found his claims of persecution in Cuba believable. Then, ICE moved him again, to Otero.

There, a deportation officer denied his parole request, deeming him a "flight risk," according to a copy of his parole determination. But Guzman said the officer verbally told him he wasn't eligible for asylum, thanks to the asylum ban.

"When I arrived at the U.S. border, I didn't know about this rule," he said. "I couldn't follow a law that didn't exist at the moment I arrived."

He appealed ICE's parole decision and provided additional letters of support from Fernandez in Dallas and family members in Michigan, only to be denied again.

Guzman has been held nearly five months now at Otero, without charge or parole.

"The due process problem there is huge," said Ian Philabaum, program director at the Innovation Law Lab, which participates in an El Paso attorneys' collective to provide representation to detained immigrants.

"Detention facilities are black holes," he said. "They exist inside with DHS acting with impunity despite its own policy directives. This is a big issue here."

The Executive Office of Immigration Review, which oversees the nation's immigration courts, reports the median case completion time for detained immigrants was 46 days nationwide in fiscal 2019, up from eight days in fiscal 2009.

For asylum seekers in Otero denied parole, an immigration court decision can take months or even years, according to detainees and El Paso-area immigration attorneys, and they can be held for the duration of their immigration proceedings.

MTC, the private corporation that manages Otero, runs the facility like a jail, Guzman said. The more than 900 detainees inside live on a schedule in which every aspect of the day is regulated; they sleep on bunks in dormitories the Spanish-speaking detainees call tanques, or tanks.

"No one knows what desperation is until you've been detained by ICE," Guzman said. "They say this isn't a prison. But if it's not a prison, what is it? Because I don't have the freedom to leave."

Guzman, held since September, saw an immigration judge for the first time Jan. 23 -- Judge Jacinto Palomino.

Palomino's courtroom is inside the Otero detention center, accessible through two locked doors that require a security guard to open them. Guzman sat in a crowded row, shoulder to shoulder with men from Mexico and Cuba; in the row behind him were two men from Ghana and China. All wore the same government-issue navy or orange scrubs and jean jackets.

Only three of the men had an attorney.

Shuffling through blue file folders stacked in a tray on the bench, Palomino called Guzman's name, and Guzman rose alone. The judge explained Guzman's right to delay proceedings until he finds an attorney and fired off four questions about his citizenship and plans to apply for admission to the U.S.

Guzman listened to an interpreter through headphones.

Palomino asked a guard to hand Guzman an I-589 -- an asylum application.

"Fill it out in English," he said to Guzman, who doesn't speak English and can't afford an attorney. "Say who you fear, what you fear in Cuba. You need to corroborate your claim with evidence."

Although Guzman had already explained his fear of persecution to the asylum officer and presented evidence to ICE of his claim and his family ties in the U.S., he would have to do it all again on the asylum application.

Palomino set Guzman's next hearing for March 19 -- guaranteeing him at least another two months in detention.

ICE agents "tell us it's almost impossible to win here, at Otero," Guzman said.

"I have to leave it in God's hands," he said. "I don't have any other option. I don't have the resources for an attorney, so I have to do this alone. Another month and a half, two months waiting for my next court date in here? What can I say?"

Copyright AP - Associated Press
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