María Eugenia Hernández and her Nicaraguan-born husband, Oscar Hernández, went to the U.S. Citizenship and Immigration Services offices in Miami for an interview about their marriage that they had been awaiting for three years.
The agency uses such interviews to confirm that the marriages are legitimate and that partners like Oscar have the right to try to legalize their immigration status.
The Hernándezes brought a small album with photos of their wedding and family photos, their marriage certificate and a statement from their joint bank account.
They have been together for four years, married for three, and Oscar is the principal wage earner in the family. So María, who is a U.S. citizen, expected that everything would be OK.
But during the interview, she was asked to step out of the office. Twenty minutes later, she was told that her husband, who had a deportation order pending from long ago, had been arrested by Immigration and Customs Enforcement.
Oscar, 42, who crossed the Mexico border in 2004 undocumented, has been held since then in an immigration detention center in Broward County. He could be deported at any time.
“I went to the immigration appointment with a lot of confidence because it was an interview. I never imagined they would take my husband away under arrest,” María said of the meeting last Tuesday. “We are trying to do the right thing.”
Arrests of immigrants during the marriage interviews in USCIS offices is becoming more common in South Florida, according to attorneys in an agency that offers legal assistance to immigrants.
Immigrants with old deportation orders are following the procedures for obtaining legal status known as Petition for Alien Relatives and turning up for required interviews, but “some of them are finding that ICE agents are waiting to arrest them,” said Alexandra De León, an attorney with Americans for Immigrant Justice.
An ICE spokesman in Miami, asked about the Hernández case, told el Nuevo Herald that any undocumented immigrant facing a deportation order can be detained by the agency at any time.
“ICE will no longer exempt classes or categories of removable aliens from potential enforcement. All of those in violation of the immigration laws may be subject to immigration arrest, detention and, if found removable by final order, removal from the United States,” wrote spokesman Nestor Yglesias.
Local television station WSVN-Channel 7 recently broadcast a report on a similar case of a young undocumented Nicaraguan who was arrested in the USCIS office when he went there with his wife for the marriage interview. The man had entered the United States when he was 12 years old and received a deportation order in 2005. The couple have a small boy and the wife is pregnant. The man was detained for two weeks in the Broward center but was freed one day after WSVN contacted ICE about the case.
ICE told the television station that the agency “makes arrest and custody decisions on a case-by-case basis based on the totality of the circumstances.”
Before 2013, the U.S. government forced immigrants facing deportation orders to return to their countries for at least 10 years before they could try to obtain legal status in the United States. But that year, USCIS created an exemption or waiver that allows those immigrants to remain here during the process of trying to adjust their status. The change was designed to avoid prolonged family separations that can have a negative impact on spouses or children who are U.S. citizens and can therefore remain in the United States.
María Hernández, 51, said the possible deportation of her husband puts her “between a rock and a hard place.” She’s disabled, and along with her son suffers from Multiple Sclerosis, a degenerative disease of the nervous system. Oscar, who works as a construction electrician, is the main financial provider for the family, María said.
“He is my biggest support. He has been with me in good times and bad times,” said María. “If they deport him, I could say that I would follow him to Nicaragua. But how am I going to take care of my disease there? How are we going to pay for the medicine?”
When Oscar Hernández entered the United States in 2004, he was detained, processed and released by the Border Patrol. He was sent a letter ordering him to appear before a judge, but never got it because he had moved to Florida, his wife said. When he didn’t show up for the court date, an order to deport him was issued.
The couple applied for a waiver of the deportation order several months ago, as part of the petition to legalize his immigration status through his marriage to a U.S. citizen. Three weeks ago, they received the notification for the interview during which Oscar was arrested.
Similar cases have been reported in other states. The American Civil Liberties Union in Massachusetts filed a lawsuit against USCIS alleging that the interviews were a “trap” for undocumented immigrants.
The ACLU also alleged that the detentions run counter to the waivers designed to avoid family separations and violate the immigrants’ right to due process because they do not allow them to complete the process of legalizing their status.
“On one side, the government offers incentives for the petitioners to go (to the interviews) and on the other it calls them to trap them,” the ACLU wrote in the lawsuit.
The evidence submitted for the lawsuit included emails showing that USCIS and ICE agents coordinated the interviews to arrest the immigrants. In one email, an ICE agent asks USCIS to avoid scheduling the interviews “all at the same time,” to avoid media attention and because there’s not enough transportation to process everyone at the same time.
A spokesman for the ICE office in Boston denied any inappropriate coordination and described the emails as routine cooperation between branches of the U.S. Homeland Security Department to uphold immigration laws, according to a Washington Post report.
A USCIS spokesperson told the Herald Friday that the agency cannot comment on matters involving pending litigation.