NEW YORK − 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 Friday afternoon 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, Mr. Martinez was abruptly detained.
"The Trump regime is doing everything they can to tear immigrant families apart. Today’s ruling puts the brakes on a cruel bait and switch,” said New York Civil Liberties Union Executive Director Donna Lieberman. "We hope Mr. Martinez will be speedily reunited with his wife and children, and we will continue fighting to halt the Trump administration’s effort to scare immigrants away from following the established legal process."
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.
“We are so excited about the news today. Finally we see a little bit of light and feel hope that this process will happen like we thought it would and like it was supposed to from the beginning,” said Vivian Martinez. “When my husband and I got the notice about our appointment for an interview on our application, we were so excited. They took all our hopes away when he got detained. It wasn’t fair.”
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, 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.
“Detaining this father away from his family while he was attempting to follow the rules violated his right to due process,” said NYCLU Staff Attorney Paige Austin. “The process created by the Department of Homeland Security to encourage spouses of citizens to come forward and begin seeking lawful status is supposed to help keep families together, not to give ICE a way to trick and unlawfully detain immigrants.”
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.
“The Department of Homeland Security designed a legal process to ensure people could stay with their children while applying for green cards, and now it is using the same process as a trap to detain and deport parents and separate families,” said ACLU of New Jersey Senior Staff Attorney Farrin Anello, part of the legal team representing Martinez. “The tragedy of family separations is not confined to the border – families are torn apart every day when ICE takes parents out of their homes.”
Following today’s stay of deportation, his lawyers seek to have him released from custody in Hudson County Jail and to allow him to continue the process of becoming a permanent resident.
“Antonio followed the protocol the government put in place so that people married to U.S. citizens could stay with their families,” said ACLU of New Jersey Executive Director Amol Sinha. “And for that good faith, the government unconstitutionally punished him, his wife, and their two young children with the prospect of long-term separation. For justice to prevail, the Department of Homeland Security needs to allow this father to be where he belongs: back with his wife and children in Queens, living their American Dream.”
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.