Judge Rules ICE Defied Due Process in Arresting Gay Jamaican Assylum Seeker
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| Masked federal agents wait in the hallway outside of mandatory immigration court appearances at the 26 Federal Plaza building in New York City. (Josh Russell/Courthouse News) |
MANHATTAN (CN) — A federal judge on Friday ruled that Immigration and Customs Enforcement agents violated the rights of a Jamaican asylum-seeker they arrested before his scheduled immigration court appearance in New York City.
In an eight-page ruling, U.S. District Judge Analisa Torres ordered ICE to release Rickardo Anthony Kelly, a 40-year-old immigrant who claims he fled to the United States after he was shot 10 times in an apparent anti-gay hate crime in Jamaica.
“Respondents emphasize that ICE has the statutory, discretionary authority to detain noncitizens like Kelly,” the Barack Obama-appointed judge ruled. “But the question is whether, in exercising that authority, ICE is required to adhere to the basic principles of due process. There is no dispute that it is.”
Kelly, who works as a security guard in New York City, claims in a habeas corpus petition that he was arrested by ICE agents last week before a routine immigration appointment in Lower Manhattan. His lawyers say the arrest was part of the Department of Homeland Security’s broader nationwide strategy of arresting noncitizens immediately following their hearings in immigration court.
But Kelly claims he didn’t even get that far. His asylum attorney, Peter Schuur, says in a declaration that he arrived at the immigration court in 26 Federal Plaza with his client at 11 a.m. After roughly an hour of waiting to be heard, Schuur says Kelly was questioned and eventually detained due to a pending third-degree assault charge — a misdemeanor charge Kelly says is due to expire at the end of the month.
Schuur claims ICE officers said they determined “on a discretionary basis” to arrest Kelly on the basis of the pending criminal case.
“I told the ICE officers that Mr. Kelly does not pose any risk of danger or flight,” Schuur said in his declaration. “I explained that he is a hard-working man whose consistent goal since I began representing him in 2021 has been to remain in New York and be a productive member of society.”
Schuur and Kelly claim one of the ICE officers handed them a flyer offering Kelly $1,000 to self-deport to Jamaica, but Kelly declined.
“I believe that, if Mr. Kelly returns to Jamaica, he faces a grave risk of being killed or severely injured because he is gay,” Schuur said in the declaration.
Once detained, Kelly says he faced unlivable conditions inside the holding facility at 26 Federal Plaza — inedible food, no access to his diabetes medication and a lack of personal space due to the overcrowded facility.
Federal agents eventually moved Kelly to the infamous Metropolitan Detention Center in Brooklyn, then eventually the Orange County Jail in Goshen, New York, as they prepared to deport him.
ICE claims it was able to detain Kelly because he could request a custody redetermination hearing before an immigration judge, which Kelly did on the same day he was taken into custody.
But Torres lambasted that argument, finding ICE’s determination to arrest Kelly “no doubt” violated his due process rights. He was never able to be heard before his arrest, the judge ruled, nor did the government ever meaningfully argue that Kelly posed a flight risk or a danger to the community.
“The suggestion that government agents may sweep up any person they wish and hold that person in the conditions in which Kelly was held without consideration of dangerousness or flight risk so long as the person will, at some unknown point in time, be allowed to ask some other official for his or her release offends the ordered system of liberty that is the pillar of the Fifth Amendment,” the judge found.
A Department of Homeland Security representative didn’t immediately respond to a request for comment on Friday. Following Kelly’s lawsuit last week, department spokesperson Tricia McLaughlin said the following in a statement to Courthouse News:
“All his claims will be heard by a judge. Why does the media continue to peddle sob stories of these criminal illegal aliens?”
Kelly’s detention is one of hundreds being contested in federal court as the Trump administration ramps up its efforts to deport as many noncitizens as possible. Its courthouse arrests continue to be scrutinized. Earlier this month, a group of legal organizations and the American Civil Liberties Union filed a lawsuit, claiming the tactic unlawfully denies noncitizens “the right to seek relief from removal in the courtroom and summarily arrest[s] them as they exit.”
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