German Fuentes and “Mr. Gonzalez” are both free, as of Monday. The two men had been held at the Immigrations and Customs Enforcement (ICE) detention center in Farmville, despite the fact both won their immigration cases more than three months ago. But the sudden shift from ICE came as the result of a lawsuit filed earlier this month by a combination of the American Civil Liberties Union (ACLU) of Virginia, the Capital Area Immigrants’ Rights Coalition (CAIR) and the National Immigration Project (NIP).

“Holding our clients in detention for no good reason violated the Constitution, immigration law and ICE’s own policy,” said Sophia Gregg. She serves as Immigrants’ Rights Attorney for the ACLU of Virginia. “We’re pleased that ICE recognized it had no right to continue to hold our clients, but it’s concerning that the ICE Washington Field Office has given no indication that it will rectify what has become a pattern of holding non-citizens for months after they won their cases.”

What is the ICE case based on? 

The case involves one question. Is it legal for ICE to continue to detain someone, regardless of the result of their court case? That’s what the ACLU alleges is happening now and has been for some time. The argument is that even if someone wins their immigration case, ICE has been refusing to release them immediately.

In March 2023, an immigration judge ruled that Fuentes would likely face persecution or torture if he was sent home to El Salvador. One month later, the judge found the same for a man only identified as “Mr. Gonzalez” if he returned to Honduras.

As a result, all three men, in their respective cases, fell under specific guidelines. If a judge rules in your favor during a case like this, they can do so in two ways. First, they can grant you “withholding of removal” protection. That is what happened with the man named “Mr. Gonzalez” in the lawsuit.

Withholding of removal is similar to asylum. According to the American Immigration Council (AIC), a person under a “withholding of removal” order is protected from being deported to their home country, and receives the right to remain in the United States and work legally. But there is a catch. “An immigration judge (still) enters a deportation order and then tells the government they cannot execute that order,” AIC officials said in a statement on their website. While the person is protected from being deported to their own country, “the government is still allowed to deport that person to a different country, if the other country agrees to accept them,” the council explains.

In this case, that’s what the ACLU claims happened to “Mr. Gonzalez”. He was held in custody while immigration officials tried to find another country that was willing to take him. But at what point should that process end? The ruling was in April and “Mr. Gonzalez” just now left detention this week.

The second way 

Now as mentioned before, there’s a second way the judge can rule in a case like this. He or she can grant deferral of removal. That’s what happened to Germano Fuentes in Farmville.

This means a judge has put in a deportation order, but tells the government not to enforce it right now. Now the American Immigration Council says a judge issues this, rather than the withholding mentioned above, to people who have a criminal record or could be considered some type of security risk due to other reasons determined by the court.

Basically, yes, they’ve proven returning home would be dangerous. But the judge has some concerns about their stay here.

It’s not quite the same as withholding. Anyone granted deferred removal can be held in detention and aren’t automatically given employment authorization. They can be released and given that approval, however, by order of the regional ICE director. While we haven’t seen any employment authorization granted for Fuentes, he has been released.

What happens next?

ACLU officials said while this is a step in the right direction, they plan to keep filing petitions.

“It shouldn’t take a federal lawsuit to get ICE to comply with its own policies,” Gregg said. “We’ll continue to bring habeas petitions against the ICE Washington Field Office for its ongoing violations until the agency honors immigrants’ constitutional rights and releases them to their families and communities.”

The Gazette reached out to ICE officials, but had no response by presstime.