After rescinding protections, ICE is moving to deport more immigrants who were victims of crime
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12:08 AM on Tuesday, September 16
By RYAN J. FOLEY
MUSCATINE, Iowa (AP) — Days after he nearly died when an assailant shot him during a robbery attempt, Felipe de Jesus Hernandez Marcelo went to an Iowa police station hoping to get his belongings back.
The police in Muscatine, Iowa had his car and the cash he was carrying when he was shot and nearly killed on June 21. Hernandez, 28, recalled in court testimony that the department said he couldn't have those items back. Instead, police arrested him on an old warrant for failing to pay a traffic ticket.
Within hours, Hernandez was turned over to Immigration and Customs Enforcement. He's been detained ever since pending removal proceedings, having entered the country illegally from his native Mexico in 2021.
Hernandez is one of a growing number of crime victims and relatives who have been arrested and indefinitely detained during the Trump administration’s crackdown on illegal immigration.
ICE has rescinded a policy that had shielded many victims from detention and removal. The number of people applying for visas that allow some victims and their families to remain in the country appears to have plummeted. Others are being detained as they go through the lengthy application process. Of those detained, many have been declared ineligible for release under another ICE policy change.
Critics say the outcome is not only cruel to victims and their families but is harming public safety by making those who are in the U.S. illegally unlikely to report crimes and cooperate with police.
“This type of thing is now the new normal. This scenario is happening every day in every city,” said Dan Kowalski, a retired attorney and expert on immigration law. “Any contact with any level or kind of state or federal law enforcement, civil or criminal, puts you in danger of detention by ICE.”
In January, ICE rescinded a policy that called on agents to generally avoid detaining and seeking to remove immigrants who have been crime victims. It protected those carrying so-called U and T visas that allow crime and human trafficking victims and their relatives to remain in the country. The protections extended to those who had applied for such visas and were awaiting decisions, which can take years to process.
Hernandez is seeking to apply for a U visa, and would appear to be eligible as the victim of a felony assault and key witness against the two charged in the attack. But the Muscatine County prosecutor Jim Barry has yet to certify his eligibility, according to Hernandez’s attorney. Barry didn’t respond to messages.
The Biden-era policy called on ICE agents to look for signs immigrants had been victimized and to consider that as “a positive discretionary factor” when deciding whether to detain them. The goal was to avoid discouraging immigrant victims from cooperating with police in reporting and solving crimes.
But some conservatives have argued that victimization alone should not entitle immigrants to a benefit.
The new policy allows ICE agents to detain crime victims, including the U and T visa holders, as long as they check with police “to ensure criminal investigative and other enforcement actions will not be compromised.” Agents aren’t required to look for any evidence of victimization.
The number of applications for U visas dropped by nearly half in the quarter that ended in March, which included the first 2½ months of the new Trump administration, according to data from U.S. Citizenship and Immigration Services.
Some immigration lawyers say the drop reflects concerns that an application by itself will put someone on the government's radar for potential removal.
Immigration lawyer Bethany Hoffmann said one of her clients, whose wife had been a kidnapping victim, was arrested by ICE when he showed up to an appointment to be fingerprinted as part of the U visa application process.
“I have been practicing for 17 years and I have never seen that before,” she said, adding that the man had no criminal history but was subject to a 10-year-old removal order.
Court documents show other U visa applicants across the country have been taken into custody by ICE, including a woman detained in Maine who had been assaulted and kidnapped in 2021.
Compounding the impact is another new practice in which ICE and immigration judges have required the indefinite detention of anyone who entered the country without permission.
Over the past 30 years, immigration lawyers say many such detainees would have been able to be released pending removal proceedings as long as they were deemed not to be a flight risk or danger to the community. With a steady job, local relatives and a minimal criminal history, Hernandez would have been a candidate for release.
But instead, he has been at the Muscatine County Jail in ICE detention for nearly three months.
Hernandez has been apart from the 9-year-old son he was raising as a single father, unable attend medical appointments critical for recovering from his gunshot wounds, and unable to work the construction job that paid his family’s bills.
He said he was denied medicine for the first five days as he suffered in excruciating pain, he said.
“I was locked in a single cell for several days. It felt like forever,” Hernandez recalled this month in court testimony.
A federal judge ruled on Sept. 10 that ICE's detention of Hernandez without a bond hearing was illegal, and ordered an immigration court to hold one within seven days. She found that he was suffering “irreparable harm” in the meantime. A hearing is scheduled for Wednesday.
