Three Central American men filed a federal lawsuit last week alleging they’ve been unlawfully detained in Virginia after winning their immigration cases. Groups representing the men — Capital Area Immigrants’ Rights Coalition, the National Immigration Project and the ACLU of Virginia — say federal authorities are violating their own rules and U.S. Supreme Court precedent.
In separate cases, the three men — Cano Fuentes, Guzman Lopez and a third man whose name is redacted in the filing — won immigration cases that granted them protection from deportation to their homes in El Salvador and Honduras. Judges ruled the men risked being tortured if they returned under the U.N. Convention Against Torture.
But the lawsuit says U.S. Immigration and Customs Enforcement continues to detain the men at facilities in Farmville and Caroline County, Virginia. There’s still a chance ICE could try to deport the men to a third country, although the lawsuit says the men have not been told where they might be sent.
Federal data cited in the lawsuit suggests ICE only found third countries to take in the noncitizens in 1.6% to 3.3% of similar cases, depending on the time period. The lawsuit noted past cases where ICE has reached out without success to countries like Portugal, Honduras and Costa Rica to accept the deportation of a Guatemalan citizen who won a similar outcome under the U.N.'s CAT.
The lawsuit also alleges the detentions are a pattern under the leadership of ICE’s Washington field office, which oversees the District of Columbia and Virginia.
“ICE’s half-hearted attempts to remove Petitioners to a random collection of alternative countries — to which they have no ties, and which have no policy or history of accepting non-citizen deportees — are speculative and futile,” the filing argues.
The lawsuit argues ICE can’t meet a threshold set up in 2001 by the Supreme Court case Zadvydas v. Davis. In that case, the majority wrote that the U.S. government was required to justify detentions of noncitizens beyond six months and prove that a person would be deported in the “reasonably foreseeable future.”
The lawsuit argues the “foreseeable future” standard also applies in the case of the men, who won their immigration cases between March and May, in part because they — unlike the petitioners in Zadvydas — lack obvious connection to third countries. It also says the detention appears to violate ICE’s own memos and policies.
That includes a 2021 memo from ICE’s acting director at the time, Tae Johnson, specifying that noncitizens who’ve been granted relief by immigration judges under the U.N. CAT should be released after their verdict unless they present a threat to U.S. security or danger to the community.
Amanda Frost, a law professor at the University of Virginia, said the statistics cited in the lawsuit were persuasive.
“This case is about the government's power to detain people indefinitely, when there is no reasonable foreseeability that they can be removed,” Frost said in an interview. “In other words, just to keep them in jail for months or years. And that is something that the Supreme Court has said that the immigration officials cannot do over 20 years ago.”
A spokesperson for ICE declined to comment on ongoing litigation. The federal government has not made any filings in the case.
The men have built lives inside the U.S., according to Austin Rose, their lead counsel. Two of them have serious medical conditions that are not being properly treated while they are detained, according to Rose.
“They are fathers,” Rose said. “They have spouses — some of them do. And they're desperate to be released and go back home.”
