ICE reverses course, releases three Salvadoran youths pending appeal

Exactly why the youth were released is unclear. ICE arrested the youths unexpectedly two weeks ago and began deportation proceedings, said Ben Casper, an attorney representing them. Just as unexpectedly, they were released. ICE declines to comment on specific cases.

The case could set a precedent for other asylum seekers. The youths fled El Salvador after the two younger brothers refused to join the MS-13 gang. Gang members threatened to kill them and rape their sister. At issue is whether they qualify for asylum as members of “a particular social group.” In this case, the social group is those people who refuse to join violent gangs as a matter of conscience.

The youths had lost initial rounds in the asylum case, first before an immigration judge and then in front of the Board of Immigration Appeals. Their case is being appealed to the 8th Circuit Court of Appeals, but that doesn’t automatically stop deportation.

Casper, who works on contract for the Immigrant Law Center of Minnesota, said the arrests came as a shock. His clients had been free on their own for months with no requirement to report. While a deportation order had been in effect for a year, nothing had happened. They expected the government would wait for the appeal to run its course before proceeding.

The Daily Planet wrote a story on the case earlier this month. More background is available here.

Supreme Court involvement

When ICE began deportation proceedings, Casper and attorneys for the Washington-D.C.-based firm Latham & Watkins began trying to temporarily block deportation. They failed to get a sympathetic ear at ICE or the 8th Circuit Court of Appeals. They next went to U.S. Supreme Court Justice Samuel Alito, who is also the Circuit Justice for the 8th Circuit. He reviews such things as emergency requests to block deportation.

Alito denied the request, Casper said. However, the youths had one last shot. People in their situation are allowed to resubmit their application to another justice of their choice. So the youths’ attorneys resubmitted to Justice John Paul Stevens. Stevens could have denied it, too. Instead, he referred it to the full court for consideration. On Tuesday, the court asked the government to respond and give its side regarding deportation. While it was not a clear-cut victory, it was significant, Casper said. It meant the Court was taking the request seriously.

The government has until 4 p.m. July 29 to respond to the Supreme Court. On Wednesday (the day after the Supreme Court weighed in) ICE released the youths. According to Casper, ICE now has given verbal assurances they won’t be deported while their appeal is pending in the 8th Circuit.

Reasons for release unclear

ICE is tight-lipped on its reasoning.

Spokesman Tim Counts confirmed that the three youth were released Wednesday, but said he could not comment on why they were released. “Per ICE policy, we don’t discuss the specifics of individual cases,” he said. “All court hearings are presumptively open to the public. Our attorneys are there explaining the agency’s position. We generally [reserve] our remarks about particular cases to the courtroom.”

Casper said Sen. Al Franken’s office made phone calls on the case. Other elected officials were asked for help. “We don’t know exactly what of the many things we did … triggered this outcome,” Casper said. “It is quite clear that something worked.”

The youths came to Casper’s office Wednesday right after their release. They were very happy, he said. But the sister also is pretty traumatized.

They had no advance warning they were going to go to jail and they were not prepared for it. “For two weeks, they lived in a jail with … criminals, not knowing what would happen to them day by day,” Casper said.

Scott Russell is a journalist. He wrote for the Southwest Journal and Skyway News (now the Downtown Journal) in Minneapolis from 1999-2005. He also wrote for The Capital Times, a Madison Wisconsin daily, from 1993-1999. Email: scott@tcdailyplanet.net

Scott Russell

Scott Russell (scott@tcdailyplanet.net) wrote for the Southwest Journal and Skyway News (now the Downtown Journal) in Minneapolis from 1999-2005. He also wrote for The Capital Times, a Madison Wisc