Wrongful Detention Suit Illustrates Pitfalls Of ICE Lockups

By Daniel Connolly | April 19, 2024, 9:30 PM EDT ·

A blue and grey building with cars and vans parked in front, and 'South Texas Detention Center - 566 Veterans Drive' on the side. The U.S., Texas, and DHS flags are flying out front.

The South Texas ICE Processing Center in Pearsall, Texas, is shown in this February 2009 file photo. The facility is one of two where Salvadoran immigrant Nylssa Portillo Moreno alleges she was wrongfully detained for a total of eight months by U.S. immigration authorities despite having temporary protected status to live and work in the country. (AP Photo/Eric Gay, File)

As a young child in the 1990s, Nylssa Portillo Moreno was brought to the U.S. illegally from El Salvador by her mother. By 2001, however, she and other unauthorized Salvadoran immigrants around the country were granted temporary protected status after a series of devastating earthquakes in the Central American nation.

But having the government's blessing to live and work in the U.S. made little difference when she landed in immigration detention after a traffic stop outside of Houston in 2019, she claimed in a recent lawsuit.

Instead, she alleged that U.S. Immigration and Customs Enforcement officials refused to believe her when she told them about her protected status and kept her wrongfully locked up for eight months.

"Everyone tells me they have some form of status," she quoted one officer as saying in her complaint filed in Texas federal court last month.

She's seeking $2 million in damages, attorney fees, and a declaration that ICE and related agencies violated her rights.

Portillo Moreno's alleged ordeal is far from an outlier. Immigration lawyers say deportation and detention officers sometimes make dangerous mistakes, such as arresting U.S. citizens and immigrants who have legitimate legal status.

While false arrests can also occur in the criminal justice system, the federal immigration detention system, which routinely holds tens of thousands of people in custody, according to government data, adds layers of complications that make bad immigration arrests harder to identify and correct, immigration lawyers say.

For example, immigrants in deportation proceedings and detention have no right to a defense lawyer. They either have to pay for a lawyer themselves, or try to fight the case on their own. That's an extremely difficult task, especially for people who don't speak English and have little understanding of U.S. immigration law.

Meanwhile, some immigrants in detention never have a bond hearing, meaning they never have a chance to plead their case to a judge.

And unlike records for criminal cases, immigration arrest and deportation records are secret.

Although an online system allows users to enter individual detainees' names to find out which ICE facility is holding them, the general secrecy of the system makes it more difficult for family members and third parties to determine what's happening, especially in the immediate aftermath of an arrest.

Beyond improper arrests of citizens and immigrants with legal status, ICE sometimes keeps immigrants in detention even after they have won their cases in immigration court. A federal lawsuit over that practice is pending in Virginia.

"ICE does not comment on ongoing or pending litigation," ICE spokesperson Mike Alvarez wrote in an email to Law360.

Arriving From El Salvador at Age 8

According to her attorneys, Portillo Moreno was born in El Salvador and was brought to the United States illegally by her mother in 1993 when she was eight.

Portillo Moreno had been ordered deported shortly after she entered the country, but the order was never carried out, according to her complaint. That 1993 order would cause problems later.

Portillo Moreno attended elementary, middle and high school at institutions in Austin and Houston and learned fluent English. She missed most of her senior year after becoming ill with cancer, but later earned a GED, according to her lawsuit.

After earthquakes struck El Salvador when Portillo Moreno was a teenager in 2001, then-President George W. Bush's administration issued temporary protected status for people from the country.

In short, this meant that Salvadorans living in the U.S. could stay legally and apply for work permits, renewable every two years. According to Portillo Moreno's complaint, she took advantage of this as an attorney applied on her behalf in 2001.

After the government granted her a permit in 2003, she said she worked various jobs and later started a small bookkeeping business.

While she filed applications every two years as required to renew her permit, her complaint said that the government, unbeknownst to her, was not approving them. The problem: She later found out she was paying an incorrect fee amount, she wrote in the lawsuit.

She said the government never told her about the problem at the time.

Getting Into Trouble

Portillo Moreno's lawsuit said she was living a stable life — running the bookkeeping business, working another job, and caring for her elderly mother, who lived with her in an apartment.

That all changed in October 2019 when a Houston-area police officer pulled over Portillo Moreno's vehicle due to an expired registration.

When the officer ran her name through a police database, it revealed she was facing theft-related warrants from Travis County, where Austin is located, her complaint said.

The most serious, dating back to 2013, accused her of stealing more than $200,000, according to Travis County online records.

Portillo Moreno said in her complaint that the charge stemmed from when she was working as an assistant manager for an apartment complex in Austin. Renters would drop their checks through a slot, and someone was stealing the checks.

Portillo Moreno said in her lawsuit that another person was stealing the checks, but that person wrongfully pinned the theft on her, and she was fired. She didn't know about the warrant until the October 2019 traffic stop.

The second warrant, she said, stemmed from allegations from a bookkeeping client that Portillo Moreno had stolen money from him.

While her attorneys assert that both warrants were baseless, Portillo Moreno was arrested. She spent about two months in the Travis County jail until prosecutors ultimately dropped the charges in both criminal cases in December 2019.

But Portillo Moreno was not released. Instead, immigration enforcement sent a request to the jail, known as a detainer, asking that she be kept in custody so ICE agents could pick her up for alleged immigration violations.

Immigration agents picked her up at around 2 a.m. on Dec. 15, 2019, she said.

This fits a broader historical pattern — for decades, presidential administrations have focused immigration enforcement in the interior of the country on immigrants who are accused of crimes, and many immigration arrests have taken place at local jails.

No Right to Counsel

Unlike the right to counsel afforded to all criminal defendants in the United States under the U.S. Supreme Court's landmark ruling in Gideon v. Wainwright in 1963, no such right exists in immigration detention and deportation proceedings.

Even young children sometimes have to stand before immigration judges with no lawyer. Then-Assistant Chief Immigration Judge Jack H. Weil, who was in charge of training other judges, sparked outrage in 2016 when he said in a deposition that children as young as 3 or 4 years old could learn immigration law.

"I've taught immigration law literally to 3-year-olds and 4-year-olds," Judge Weil said, according to The Washington Post. "It takes a lot of time. It takes a lot of patience. They get it. It's not the most efficient, but it can be done."

The deposition came in a lawsuit in which the American Civil Liberties Union and immigrant rights groups sought to require the government to provide lawyers for indigent children in immigration court proceedings, The Post reported. Judge Weil told the paper that his comments had been taken out of context but didn't elaborate.

But many immigration lawyers, meanwhile, say that immigration law is as complex as tax law, and three former immigration judges said at the time that Judge Weil's position was ridiculous.

Some nonprofit organizations and local governments provide lawyers to immigrants in deportation proceedings, sometimes with state government support. A prominent example is the New York Immigrant Family Unity Project, which has received funding from the New York state and New York City governments.

California is among the other states that have created statewide programs to pay for immigration attorneys.

Across the country, however, many immigrants — including children — still end up facing government immigration prosecutors on their own, with no legal help.

As of December 2023, only 30% of immigrants in deportation proceedings had lawyers, and unrepresented immigrants are far more likely to lose, according to Transactional Records Access Clearinghouse.

For her part, Portillo Moreno tried to hire an immigration lawyer.

But according to Brandon Galli-Graves, an attorney with Texas-based nonprofit Refugee and Immigrant Center for Education and Legal Services who's representing Portillo Moreno in her current lawsuit, several things went wrong.

For one, during the two months that she was sitting in Travis County's jail, she was evicted from her apartment and her car was repossessed, he said.

"She really didn't have any funds. The family tried to hire an immigration attorney when she was initially detained [in October 2019]," Galli-Graves said.

"And the immigration attorney provided very subpar services, and they ended up firing the attorney very shortly after that," he said. "But they hired that attorney with all of their remaining funds. And so our client just didn't have the economic means to be able to hire an immigration attorney to help her throughout this process."

Attorneys for Portillo Moreno told Law360 that they're still trying to gather additional documents about her time in detention. But they said that based on what they know now, she never had a bond hearing.

They also said they believe that, during her detention, she never appeared before an immigration judge.

The 'Hielera'

ICE officials moved Portillo Moreno several times after she was taken into federal custody in December 2019, she alleged in her lawsuit. After the Travis County jail, she was brought to an Austin federal building and ICE detention centers in Pearsall and Laredo.

The complaint said that ICE officials not only ignored her repeated statements that she had temporary protected status, but they also ignored her requests for a special diet that complied with health-related restrictions and her Jewish faith. She ended up losing 60 pounds, the complaint alleges.

The complaint describes especially poor conditions in the Laredo lockup, including "soiled, wet clothing" she was given to wear before being "taken to a freezing cell others called the 'hielera,'" a Spanish word for 'icebox.'

Her complaint said she was offered a sandwich but couldn't eat it due to allergies. "Ms. Portillo Moreno was ultimately forced to remain in the freezing cell for sixteen hours with twenty-three other individuals, without food, and with nothing but a concrete floor to sit or sleep on," it said.

The complaint said the rest of the facility was filthy, too.

"When officers turned off the lights at night, roaches swarmed out of the toilets," the complaint said. "Everything was extremely dirty at Laredo, and basic fixtures were left broken and unusable for prolonged periods of time."

The facility didn't give the detainees necessities like soap and shampoo, although they could buy them at a commissary. She stayed in the facility for five months, the complaint said.

According to Galli-Graves, Portillo Moreno first contacted RAICES in May 2020 while detained in Laredo.

About three months later, ICE finally released Portillo Moreno, the complaint said, although Galli-Graves said they weren't entirely sure why.

"But at some point, I think ICE realized that, oh, she did, in fact, have [temporary protected status]," he told Law360.

Then there was another twist: After being released, Galli-Graves said U.S. Citizenship and Immigration Services notified Portillo Moreno that it intended to revoke her temporary protected status.

It was a move, he said, "which, ironically, kind of affirmed that she had it all along."

Kyle Hudson, an attorney with RAICES who started working with Portillo Moreno during her detention, helped her file a response to the government notice to revoke her TPS status, Galli-Graves said.

Other lawyers, including Galli-Graves and pro bono attorneys with Morrison Foerster LLP, later took up her case.

Katherine McNutt, an associate in MoFo's intellectual property practice who has joined Portillo Moreno's legal team, said her firm was drawn to the case by the egregious nature of the allegations.

"She lost her apartment, she lost her car, she lost her business. She was unable to care for her mother, who suffered a stroke while she was in detention," McNutt said. "She is working very hard now to try and rebuild everything that was taken away from her and has maintained almost an impossibly positive outlook."

Immigration Agents Sometimes Arrest U.S. Citizens

Jennifer Ibañez Whitlock, a government relations specialist with the American Immigration Lawyers Association who reviewed the Portillo Moreno complaint at the request of Law360, said the allegations came as no major shock.

"It's not surprising to me that somebody would end up in custody, even if they had lawful status," she said. "And, taking it to the most extreme, even a U.S. citizen can end up in U.S. immigration custody."

A U.S. Government Accountability Office report from 2021 bears out the claim, citing the arrest of 674 potential U.S. citizens by ICE from 2015 through March 2020. Of those, 121 were detained and 70 were removed from the country entirely.

The available data don't show how many potential U.S. citizens were later confirmed to have U.S. citizenship. Some of the detainees were released, but it's unclear how each case was resolved.

Ibañez Whitlock also highlighted a part of the complaint noting that Portillo Moreno couldn't access her immigration documents.

"It makes it really hard for people to win release from detention because they don't have access to their paperwork. No one's guaranteed an attorney," she said. "And so despite her attempting to talk to ICE agents, I understand that they probably didn't do their due diligence."

Complicating matters further, she said, may have been the deportation order the complaint said was issued for Portillo Moreno before she was granted TPS status in 2001.

"I could see an untrained officer or a new officer or just somebody who's not following their procedures, thinking, 'Well, this woman has a removal order. How could she have gotten TPS?'" Ibañez Whitlock said.

Austin Rose, a senior attorney with the Capital Area Immigrants' Rights Coalition, in Washington, D.C., is one of a team of lawyers working on a putative class action lawsuit that challenges ICE's practice of continuing to detain some immigrants who have won their cases in immigration court.

The suit, which CAIR filed in August alongside the American Civil Liberties Union and the National Immigration Project, comes on behalf of Roberto Carlos Rodriguez Guerra.

Few details are publicly available about Rodriguez Guerra's case because immigration court records are secret and because most documents in his district court lawsuit are sealed.

But Rose told Law360 that his client goes by the name Carlos. He's 26 years old, from El Salvador, and entered the U.S. as a minor around 2013. He was living in Maryland when ICE detained him in August 2022 due to his undocumented status.

In January 2023, an immigration judge granted him relief from deportation under the United Nations' Convention Against Torture, concluding that he could face torture by gangs in El Salvador that had persecuted him in the past when he refused to join, Rose said.

ICE appealed the judge's ruling, but an appeals board ruled for Rodriguez Guerra in June 2023, according to Rose.

This didn't end the story.

"I thought I would be released from detention after I won my case, but that did not happen," Rodriguez Guerra said in a recent court filing. "ICE appealed and I waited months while the appeal was pending. Then, when the appeal was denied, ICE still said they were going to keep detaining me while they looked for other countries to deport me to."

Rose said ICE didn't tell him which countries they were seeking to deport him to. "But records reveal they reached out randomly to Peru, Dominican Republic, and Chile. None responded," he said.

After Rodriguez Guerra filed an amended complaint, ICE finally released him in mid-September 2023, Rose said. Rodriguez Guerra lives in Maryland and has applied for a work permit.

Other detainees have joined Rodriguez Guerra as plaintiffs. The April 2 court filing said that Rodriguez Guerra's attorneys know of a total of 13 noncitizens currently detained in Virginia after winning their immigration court cases and that about 40 noncitizens have been detained in the state under similar circumstances in the last two years.

Cases like Rodriguez Guerra's illustrate how arbitrary immigration detention can be, Rose said, adding that abuses were still taking place under President Joe Biden's administration despite pledges to reverse aggressive immigration policies of former President Donald Trump.

Like Ibañez Whitlock, he said low-level ICE deportation officers may have a limited understanding of immigration laws.

As a result, he said some such officers might "tend to assume that if someone is telling them that they're wrong, that the person is trying to pull a fast one on them or something."

"They don't believe immigrants, like they didn't believe this woman that she had TPS," he added.

Many abuses, meanwhile, go unchecked, Rose said, either because the agency can get away with it or because ICE agents don't know the law.

"And, unfortunately, because many people are not represented, and they don't speak English and all these barriers from being detained, it's very hard for people to vindicate their rights quickly and effectively," he added.

Immigration detention is expensive for taxpayers, and it was designed as a short-term lockup immediately before deportation, he said. But some people are facing longer times in detention.

Rose said he's advocating for another immigration detainee who's been locked up for five years. He said he couldn't release this detainee's name or other details due to his ongoing immigration case, but added that he was also a plaintiff in the Rodriguez Guerra lawsuit.

"He's won his case three times. ICE appealed the first two times. We're still waiting to see whether they're going to appeal a third time. He was living in the United States for almost 15 years before he was detained," Rose said.

Next Steps for Portillo Moreno

Since being released, Portillo Moreno said she's had to rebuild her life and take on the responsibility for caring for her mother, who suffered debilitating strokes while she was locked up.

Her lawsuit describes not only the eviction from her apartment and a repossessed car, but the loss of her personal belongings in the eviction, including beds, cellphones, clothes, a computer, a lost storage unit and its contents, ruined credit and piles of debt for unpaid bills.

While her lawsuit moves forward, at least one worry is cleared — she was able to stop the government's attempt to revoke her temporary protected status, and she kept her work permit.

But in her lawsuit, she said she's still fearful.

"Though she has active TPS and cannot legally be detained or deported, Ms. Portillo Moreno constantly worries that ICE will again illegally detain her, notwithstanding her status, and tear her away from her life and community," the suit said.

--Additional reporting by Britain Eakin and Marco Poggio. Graphics by Ben Jay. Editing by Jay Jackson Jr.

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