The New York Civil Liberties Union and the ACLU of New Jersey sought and obtained an emergency stay of deportation for a father of two who was unconstitutionally taken into federal custody by immigration enforcement agents when he and his wife, a U.S. citizen, attended an interview at a federal immigration office in Manhattan as part of their application for him to obtain residency status. The stay was part of a federal lawsuit, Martinez v. Nielsen, that the two affiliates filed challenging a new policy—reportedly implemented in New York in mid-April—of separating families by detaining and deporting noncitizens with old removal orders at their immigration interviews.
Antonio de Jesus Martinez, who came to the United States from El Salvador in 2003, is married to a U.S. citizen and has two young children – a daughter who is nearly three and a four-month-old newborn son. His wife Vivian was born in Queens, New York and petitioned for his status as part of a process created in 2016 to permit couples with one partner who has an outstanding removal order to apply for residency status. But when Antonio and Vivian got to their interview at 26 Federal Plaza on April 27, 2018, Mr. Martinez was abruptly detained.
Mr. Martinez and his wife have been together for 14 years. They live in Queens, New York and he worked as a heating, ventilation, and air conditioning specialist. Mr. Martinez’s detention has devastated his family. His wife has suffered from depression and anxiety and had to stop breastfeeding their four-month-old, while their two-year-old regularly awakens in the night screaming for her father. Mr. Martinez has been held in the Hudson County Correctional Facility for nearly eight weeks and was subject to imminent deportation to El Salvador before the court issued its stay of deportation on Friday night.
The process for mixed-status couples to obtain permanent residency, or a green card, was created by federal regulations in order to prevent precisely this result−the prolonged separation of families. Mr. Martinez presented himself at the Department of Homeland Security office with that understanding. Instead, after he finished the required interview with his wife, ICE officials took Mr. Martinez into custody. An ICE officer told his wife that his detention was part of a new policy that began to be implemented in New York two to three weeks prior.
Ironically, a week after their interview and Mr. Martinez’s detention, the family was informed that they had passed the interview and their application to prove their marriage’s validity was approved.
Martinez’s arrest appears to be part of an emerging pattern targeting spouses of U.S. citizens when they present themselves at federal immigration offices as part of the process to obtain legal status. Martinez’s detention follows the arrest of Xiu Qing You, a Flushing resident and father, as well as that of Pablo Villavicencio Calderon, the husband of a U.S. citizen and father also in the process of applying for a green card. Mr. Villavicencio was arrested while delivering a pizza to the Fort Hamilton Army Base in Bay Ridge, Brooklyn. On June 20, 2018, a federal court ordered a stay of deportation and the release of Mr. You, who, like Mr. Martinez is married to a U.S. citizen and the father of young children, and was also detained after arriving at USCIS offices for a green card interview.
The New York Civil Liberties Union and the ACLU of New Jersey obtained a stay of deportation for Mr. Martinez in an emergency petition filed Friday afternoon. The lawsuit filed in the U.S. District Court of New Jersey asks the court to declare the policy of detaining noncitizen spouses who undertake the initial step to seek permanent residency to be unlawful.
In addition to Austin, NYCLU staff who worked on Martinez’s case include Associate Legal Director Christopher Dunn, Staff Attorney Jordan Wells, and Paralegal Ingrid Sydenstricker; in addition to Anello, ACLU of New Jersey staff who worked on the case include Staff Attorney Liza Weisberg, Senior Supervising Attorney Alexander Shalom, Acting Legal Director Jeanne LoCicero and Legal Intern Gabriella Romano; support for the Martinez family has come from Make the Road New York.