A Boston federal judge could rule as early as Thursday whether to order the Department of Homeland Security to stop arresting undocumented immigrants who come to government offices for interviews as part of the first steps in applying for green cards.
US District Judge Mark Wolf heard testimony Tuesday from people who had been unexpectedly detained when they sat for marriage interviews as part of the application process to prove that their marriages to US citizens were legitimate.
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Emails entered as evidence in the case show what appear to be efforts between US Citizenship and Immigration Services employees and Immigration and Customs Enforcement employees to coordinate the interview appointments and arrests.
There are five couples named in the suit, each consisting of an undocumented immigrant married to a US citizen, and attorneys for the American Civil Liberties Union say there are other couples in the New England area who are facing similar situations. While the ACLU and attorneys at the firm WilmerHale have asked for the injunction to apply to the Boston ICE office's region, the impact could be felt nationwide.
"The reason that these arrests happened according to ICE itself is President Trump's (January 2017) executive order -- and that is an executive order that is nationwide," said Matt Segal, an ACLU attorney. "The issue in this case is one that is important for the entire country."
Attorneys for the plaintiffs argue that the practice of arresting immigrants with deportation orders who are attempting to apply for green cards goes against their own agency's 2013 policy of creating "provisional waivers," which were created to allow people in those situations who have US citizen family members the opportunity to become lawful permanent residents.
Wolf previously ordered the release of each of the spouses who had been detained and are named in this case. He indicated a ruling could come Thursday.
ICE officials testified that they believe the arrests were justified, citing the executive order calling for "the faithful execution of immigration laws of the United States ... against all removable aliens..."
The current acting field office director, Todd Lyons, said in court that he would prioritize people who have criminal histories for removal.
"We still are following the executive order, but I have the daunting task of doing it with the resources we have," Lyons said in testimony. "The public safety aspect far outweighs the resources that we have."
Separating families thousands of miles from the border
In the months since Lilian Calderon, 30, returned to her Rhode Island home after being unexpectedly detained for nearly a month, her two young children, Natalie, 5, and Noah, 2, have not been the same.
Natalie had nightmares of Calderon not being there, screaming for "Mommy" in the middle of the night, her mother said. Noah would latch on to Calderon's legs when she needed to do something as simple as go to the bathroom, and it would take her nearly half an hour to calm him down.
"He developed a separation anxiety that he didn't have before," Calderon said in court.
Calderon's husband, Luis Gordillo, one of the strongest men she knows, has changed, she said, developing depression and anxiety because of the uncertainty of their family's situation. They have known each other since 2002 and were married in 2016.
"It's hard for me to see this man that always takes care of us, when he breaks down because a court date is looming," Calderon said.
Calderon revealed these changes in court before Wolf, who wanted to know what "irreparable harm" she and others in her situation would face if he did not issue a preliminary injunction, stopping DHS from arresting and possibly deporting others like her.
The family's life was turned upside down in January, when Calderon and Gordillo went into a US Citizenship and Immigration Services office for a marriage interview. The interview is part of the process of filing for an I-130 application, the first step a US citizen takes to help a noncitizen relative immigrate to the US.
Calderon was brought to the US by her parents from Guatemala when she was 3 years old. She has been subject to a final order of removal since her father's asylum application was denied when she was 15.
If she is sent back to Guatemala, her husband says, she would be sent back to a country she knows nothing about.
"Natalie doesn't even speak Spanish. Our little one doesn't either. We don't have any family, we don't have any roots over there," Gordillo testified.
When asked if Calderon could go live in Guatemala while her husband and children remain in the US, both husband and wife said it is a possibility they have not wanted to think about.
"Just the four weeks that she was detained -- that was very harmful for the family," Gordillo said.
Citizenship and Immigration Services did not respond to a request for comment.
A policy change
Since February there have been five changes in field office directors at the Boston ICE office, and each has his or her own interpretation of how to handle situations like Calderon's, which is part of the reason why Wolf said he would direct a preliminary injunction, should he choose to order one, specifically to Homeland Security Secretary Kirstjen Nielsen.
Lyons, who was named to the post on Monday, also served in the position briefly in June. Evidence presented in court showed that arrests of undocumented immigrants who arrived at the Boston-area USCIS office for marriage interviews began in July 2017, and Lyons confirmed that these started happening at the request of USCIS.
"We continue to receive CIS referrals," Lyons said. "But each case is reviewed on a case-by-case basis."