A gay Mexican immigrant who sought asylum in the United States, but was deported over the recent Christmas holiday despite a court order in his favor, was retrieved Tuesday after a nearly one-month ordeal in which the Trump administration ignored rulings on his behalf.
Carlos Bringas-Rodriguez, who’s gay and HIV positive, is an asylum seeker from Mexico, who was deported Dec. 22 at 3 a.m. and literally dumped at the border with a limited supply of his HIV medications.
U.S. Immigration & Customs Enforcement deported Bringas-Rodriguez even though the U.S. Ninth Circuit Court of Appeals in March determined the persecution he faced in Mexico because of his sexual orientation made him eligible for asylum in the United States.
The Department of Homeland Security removed Bringas-Rodriguez on the basis that he missed a court appearance for asylum — an appearance for which he never received notification — taking him away from his spouse in Kansas City, Michael Young, a U.S. citizen. The couple cares for Bringas-Rodriguez’s 12-year-old cousin as a daughter.
The U.S. government only agreed to allow Bringas-Rodriguez, who also goes by Patricio Iron-Rodriguez, to return to the United States after a subsequent order from the Ninth Circuit on Thursday instructing DHS “to return petitioner to the United States through the Port of Entry at San Ysidro, California, no later than January 16, 2018.”
Bringas-Rodriguez said in a statement to the Blade prior to his retrieval he was relieved the nightmare of being separated from his family over the holidays would end soon.
“I have mixed emotions right now,” Bringas-Rodriguez said. “I am still very traumatized and shaken up from being deported and separated from my family. But I am of course relieved that this nightmare will soon be over and cannot wait to be reunited with my husband and our niece who is like my daughter.”
Young, a physician, expressed his frustration in a statement that his spouse “was taken away from me three days before Christmas, in the dead of night without my knowledge.”
“My husband has been fighting his case for over six years and has cooperated with immigration authorities throughout,” Young said. “As his husband, I am suffering because I do not know when we will be reunited; as a physician, I am terrified that his unlawful deportation will have irreparable consequences to his health. I am just relieved that the Ninth Circuit recognized the wrong done here and has ordered the government to return my husband to me.”
Representing Bringas-Rodriguez is Munmeeth Soni, co-legal director for the Los Angeles-based Immigrant Defenders Law Center, who confirmed he was paroled Tuesday and said his treatment was “not just cruel, but inhumane and outrageous.”
Bringas-Rodriguez first came to the United States in 2010 after suffering persecution in Mexico over his sexual orientation and has been fighting his asylum case ever since. In his hometown of Veracruz, Bringas-Rodriguez was repeatedly raped and sexually abused by his relatives and neighbor.
If Bringas-Rodriguez were forced to remain in Mexico, Soni said he’d face the same anti-gay persecution he endured years ago, only worse.
“There’s even more of a likelihood that it would be at the hand of strangers,” Soni said. “It could be at the hands of the police, or the military, and I think…because of his HIV condition, he definitely faces significant risk of being killed.”
Even without his recent deportation to Mexico, Bringas-Rodriguez’s case for asylum has been a trial. Bringas-Rodriguez first applied for asylum when he initially came to the United States when immigration officials detained him.
The San Diego immigration court where he first made his case denied him asylum because he couldn’t show the Mexican government would have been unwilling or unable to protect him. Part of the reason the case was denied was because of a Ninth Circuit precedent in the 2011 ruling of Castro-Martinez v. Holder against a gay, HIV-positive asylum seeker from Mexico.
On appeals to the Board of Immigrations Appeals, Bringas-Rodriguez again lost his case. When he tested positive for HIV, Bringas-Rodriguez sought a second chance before the board on the basis he was now in a higher category of persecution, but the outcome was no different. (The HIV infection happened not in Mexico, but the United States. He tested positive for the first time at age 23.)
In 2013, Bringas-Rodriguez took another chance before the Ninth Circuit. Up until that time, Bringas-Rodriguez was representing himself, but now was appointed pro bono counsel at the University of California, Irvine. That was when Soni, an adjunct professor at the school, became involved in the case.
The initial decision from the three-judge panel at the Ninth Circuit was against Bringas-Rodriguez on the basis of the 2011 decision. But when the full court agreed to rehear the case, the outcome overturned precedent and was in his favor, remanding the case to immigration court for reconsideration.
“We granted rehearing en banc and now hold that the evidence Bringas adduced before the agency — credible written and oral testimony that reporting was futile and potentially dangerous, that other young gay men had reported their abuse to the Mexican police to no avail, and country reports and news articles documenting official and private persecution of individuals on account of their sexual orientation — satisfies our longstanding evidentiary standards for establishing past persecution and compels the conclusion that Bringas suffered past persecution that the Mexican government was unable or unwilling to control,” the court determined.
Soni said the decision was “beyond positive” because it didn’t just favor Bringas-Rodriguez, but has far-reaching implications.
“It really has been an extraordinary decision for anybody, any person who’s experienced anything that Bringas has experienced,” Soni said.
In summer 2014, Bringas-Rodriguez had moved from San Diego to Kansas City to be with his now husband Young. Prior to that, he had been put on a rigorous supervised system similar to prison probation where DHS monitors his movement and must be informed if he ever leaves the. Soni said Bringas-Rodriguez fastidiously kept up with the requirements.
But his asylum process technically wasn’t over because the immigration court had ruled as a result of the Ninth Circuit order. The U.S. government was given another chance to present evidence against his case, but in the event that didn’t happen, Bringas-Rodriguez would be allowed to stay.
Bringas-Rodriguez checked in with ICE in June and was told the next time he’d need to do so was Dec. 20. But in the meantime, unbeknownst to him, his case was scheduled for a new hearing on Aug. 20 in immigration court in San Diego. DHS showed up for the hearing, but Bringas-Rodriguez didn’t.
As a result, the immigration court issued a deportation order against Bringas-Rodriguez on the basis that his failure to appear demonstrates he’s abandoned his asylum application.
The immigration court is required to send a notice to the person’s address to notify them to appear. Although Soni said they supposedly did that, it may have been sent to a different address in San Diego because Bringas-Rodriguez never received it, nor did he obtain a copy of the deportation order. There’s no certification of service for either document, Soni said.
There’s some dispute as to whether any notice went out. In subsequent communications, Soni said ICE confirmed with the law firm there’s no evidence Bringas-Rodriguez was properly served even at the wrong address in San Diego.
The U.S. government, Soni said, never bothered to inform the immigration court at the hearing DHS is aware of Bringas-Rodriguez’s location and that he wasn’t trying to abscond after putting seven years into his asylum case. DHS also knew the immigration court didn’t send the notice to the right address, but didn’t bring that up, Soni said.
Bringas-Rodriguez’s absence from the hearing about which he was unaware had major consequences when he showed up for his next check-in on Dec. 20.
“He’s immediately detained, and they tell him he’s getting deported,” Soni said. “He has no idea what they’re talking about, and they’re like, ‘Oh yeah, you missed your court hearing, and so obviously you’re getting deported because you didn’t show up.'”
Bringas-Rodriguez called his husband, who in turn called Soni, who’s able to piece together what happened and was able to obtain new local counsel, Rekha Sharma-Crawford of the Sharma-Crawford law firm in Kansas City.
Finalizing the motion to reopen his case, Sharma-Crawford law firm sent the document on Dec. 22. But it’s too late for the holiday season. The San Diego immigration court, without notification to the public, decides to close at 1 p.m. and so the courier couldn’t file the motion at the time. The motion isn’t filed until after Christmas on Dec. 26.
Despite the initial notification at the ICE office, deportation proceedings against Bringas-Rodriguez were underway while he was in detention. He was shackled and taken by plane to Mexico. Officials left him little more than his cell phone and the limited supply of HIV meds given to him by his spouse.
“He was getting deported as were we trying to file this motion to reopen,” Soni said. “By the time we had filed, he had been physically removed from the country.”
That deportation process wasn’t known to either Bringas-Rodriguez’s attorneys or his husband. Soni said on Dec. 22 she received a phone call from Young, who told her he had just heard from Bringas-Rodriguez in Mexico and wouldn’t let him call anyone before that happened.
Soni said Bringas-Rodriguez was stranded in Mexico with a couple weeks supply of his HIV medication that he obtained from his spouse while in immigration detention.
“Our client from there went to this shelter that night, stayed at that shelter until his husband could buy him a ticket to move on there because he was in a border town, and border towns are really dangerous,” Soni said.
The first destination for Bringas-Rodriguez was Veracruz because his grandmother lives there, but that was the place he suffered abuse for being gay and he didn’t want to stay. He left for Oaxaca City, another town that’s a tourist destination where he could be relatively safe, then left for Tijuana.
Soni said attorneys tried to work with DHS officials in San Diego, but after a week of radio silence, decided to take the issue back up with the Ninth Circuit with a writ of mandamus on the basis the lower court had totally ignored the judge’s order.
“In Mexico, petitioner is currently terrified and holed-up in a hotel and quickly running out of his HIV medications; he has no way to get these medications when they run out in the next 9 days,” the writ says. “Since petitioner was not allowed to contact anyone immediately prior to his removal and DHS calculatingly kept that information from his attorneys and his family, no one was able to make medical arrangements for petitioner.”
The Ninth Circuit allowed 24 hours for a response from the U.S. government, which — for the first time — started negotiating with the attorneys and asked to drop the writ because the San Diego immigration court had rescinded its order on the same day.
“We felt very strongly that we weren’t going to give them the benefit of the doubt because, up until this point, they had not been acting with us in good faith, and just also given the fact that our client’s life was on the line,” Soni said. “I’m glad we did that because ultimately, I think, we’ve gotten a faster resolution through the Ninth Circuit.”
The response to the writ of mandamus filed by Acting Assistant Attorney General for Civil Division Chad Readler made no reference to Bringas-Rodriguez’s dwindling supply of HIV meds even though that was the basis of argument presented to the Ninth Circuit.
“[A]ny alleged error in the Immigration Judge’s in absentia ruling has now been remedied, as the immigration judge has reopened proceedings and Mr. Bringas-Rodriguez will be provided further hearings on the merits of his claim,” the brief says. “As Mr. Bringas-Rodriguez has an available remedy, mandamus is not warranted.”
Soni said the U.S. government attorney didn’t think the dwindling supply of HIV meds was a big deal and said the family could ship them to him to Mexico — demonstrating a lack of knowledge of laws against sending medication outside the United States as well as difficulty of obtaining HIV treatment across the border.
“That’s exactly what all our arguments and our briefs were about and it’s as though this man didn’t even bother reading it,” Soni said.
Within hours of the government filing its brief at 4 p.m., the Ninth Circuit issued the order demanding DHS reclaim Bringas-Rodriguez, give him his medications, and take him back to Kansas City.
“We’re very, very, very lucky, but I also think that the court here was not pleased at all with how the government has treated Patricio, and how they just sort of ignored the order in the first place,” Soni said.
The order came in the nick of time. Soni said Bringas-Rodriguez took his last HIV pill two days before he was ultimately retrieved.
Lauren Mack, an ICE spokesperson, responded with a statement on the facts of the case in response to the Washington Blade’s request for a comment on why ICE allowed the deportation.
“According to DHS database records, officers with ICE’s Enforcement & Removal Operations San Diego removed Carlos Alberto Bringas-Rodriguez to Mexico Dec. 22,” Mack said. “An immigration judge with the Department of Justice’s Executive Office for Immigration Review issued Mr. Bringas-Rodriguez a final order of removal Aug. 22, which served as the basis for his removal. A motion to reopen his case was filed Dec. 26, and proceedings in his case are ongoing.”
The Department of Justice didn’t respond to the Blade’s request for comment.
As a result of the U.S. Supreme Court’s 2013 decision against the anti-gay Defense of Marriage Act, U.S. citizens in same-sex marriages, like Americans in opposite-sex marriages, can sponsor their immigrant spouses for Green Cards with an I-130 application. Soni, however, said Bringas-Rodriguez wasn’t eligible because he’s subject to the permanent bar and would have to wait 10 years outside of the country before that would be an option.
Soni said the next steps in the case aren’t settled. Although Soni said suing for damages is a “good conversation that we might have,” the main task at hand as of Tuesday was retrieving Bringas-Rodriguez from Mexico.
But was the mess of immigration laws in the United States to blame for the nightmare scenario, or something else? Soni said the Trump administration’s anti-immigration policies bear the responsibility for the scenario.
“I’d like to think that they wouldn’t have done that under the prior administration, but that under this administration, given the tenor of both Trump as well as [U.S. Attorney General Jeff] Sessions against immigrants, irrespective of whether they’re here lawfully or not, or who they are, or what they’ve done for the communities, the bottom line is to deport them,” Soni said.
Deportations are rising under the Trump administration. According to the Associated Press, nearly 54,000 immigrants were deported from the interior last year between Jan. 22 and Sept. 9 — a 34 percent increase over the same period in 2016.
Soni added, “there’s truth to the fact” that low-level immigration officials feel empowered deport immigrants with Trump at the helm.
“To a certain degree, DHS and DOJ thought they could get away with this, that they would not be held to task,” Soni said.