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On the morning of Aug. 27, 2018, D.C.’s Metropolitan Police Department brought Benjamin Ordoñez to court for arraignment. There, the U.S. Marshals Service, federal agents who provide security for the courthouse, detained Ordoñez so he could be handed over to Immigration and Customs Enforcement. He was arrested for pocketing coins and cash from a purse he took at a salsa dancing social.
Ordoñez is an undocumented immigrant originally from Guatemala with no prior convictions, according to court documents. ICE had attached a “detainer” to Ordoñez’s name. (A detainer is a request ICE sends to a public safety agency, such as a jail, asking for 48 hours notice before releasing an undocumented person so that ICE has time to pick them up.)
“He was disappeared from our community with no contact for days with his friends and family,” says Ayla Bailey, a friend of Ordoñez’s.
Friends and supporters of Ordoñez launched a GoFundMe and a letter writing campaign. Their descriptions accused MPD of handing Ordoñez over to ICE directly after he was arrested. But both Ordoñez and ICE say it was the U.S. Marshals who honored the detainer.
Sanctuary DMV, an activist group that supports local immigrants, sent out a mass email in mid-September that said Ordoñez had been detained by federal agents at the courthouse (though it linked to the GoFundMe with the claim about MPD.)
“In effect, DC Police has stolen Benja, among others, from us,” said the email.
Stories in the Washington Post and WAMU in the weeks that followed ended with Ordoñez in immigration limbo, awaiting deportation in ICE custody. Ordoñez became a symbol of D.C.’s lackluster record as a sanctuary city, and a case study in how federal agencies can undermine local D.C. immigration policies.
But Ordoñez was not deported. In fact, he left an ICE detention center in Farmville, Virginia, nearly a year ago thanks to a decision from a federal immigration judge and bail money raised through the GoFundMe page.
Even the misdemeanor theft charge that brought him to D.C. Superior Court in the first place was disposed on Sept. 16 due to an issue with a piece of missing evidence. The MPD officer who made the arrest had misplaced the writing pad he used to jot down notes during his initial confrontation with Ordoñez. The officer has since gone on to work for the Department of Defense.
Ordoñez’s journey through federal custody began the morning after D.C. police arrested him. ICE has a number of ways to access information about people who have had contact with the criminal justice system. In this case, as the Washington Post reported last year, ICE got Ordoñez ‘s booking information and filed the detainer with the U.S. Marshals, who moved to take him away seconds after a D.C. Superior Court judge ordered him to return for his next hearing and dismissed him.
Ordoñez says his attorney, who did not have much experience with immigration law, didn’t know how to react. (He spoke to City Paper with Bailey, who started his GoFundMe page and translated his words from Spanish to English.)
The U.S. Marshals Service tells City Paper in a statement that their policy is to honor detainers, but also claims to be a relatively passive actor where ICE is concerned. “The court determines whether defendants are to be released on bond or remanded to custody to await trial in the criminal proceedings,” says the statement. “The Marshals do not disclose any personal information, court scheduling, transportation details or other inmate information, other than to verify an inmate is in our custody.”
ICE gives City Paper an account of the Ordoñez incident that makes their relationship with the Marshals sound more collaborative. According to ICE, the Marshals service “transferred Ordoñez to ICE custody after he was released from local criminal proceedings.”
Ordoñez says that after the Marshals Service brought him to a cell, two men in plain clothes came to pick him up along with three other detainees. “They put us in a van and they took us someplace that looked like a warehouse,” says Ordoñez. “It just looked like a regular van. It didn’t have bars or anything. It didn’t say ICE on it.”
According to Ordoñez, the cells at the warehouse-like facility were kept cold, with no blankets. When one of the people running the facility asked him for information about his family and his country of origin, Ordoñez refused to give any information other than his name. Ordoñez says they called him a criminal and threatened to send him back to the cold cell. Soon after, Ordoñez and around 45 other detainees were loaded onto a bus bound for the ICE detention center in Farmville.
At the last minute, the detainees found out they wouldn’t be headed to Farmville after all. The facility was in the middle of an outbreak of chickenpox. According to Virginia Public Radio, the same facility has more recently seen an outbreak in mumps.
Instead, they went to Norfolk City Jail. There, Ordoñez says, people detained for immigration-related reasons were kept together in a big room. The room had enough beds for around 65 people, but soon there were more people than beds. Ordoñez says that the jail gave some detainees what he refers to as “canoes,” stretcher-like apparatuses big enough to lie down in. Eventually, the room got so full that it was difficult to walk between the canoes. (A spokesperson for Norfolk City Jail says that in situations like the one Ordoñez described, detainees are given “stackable beds,” which come with a mattress and bedding.)
According to Ordoñez, the water from the jail showers was bad smelling and uncomfortably hot. Meals were served at 3:30 a.m., 10:30 a.m., and 3:30 p.m. The food—mostly pasta, eggs, and bread—was too salty. A flu spread through the facility, bringing with it fever and shivers. Ordoñez caught the virus. He says the jail did not provide medicine.
“We didn’t get to go out at all,” Ordoñez says. “We were just totally enclosed inside.”
The Norfolk City Jail spokesperson says they could not comment on the specifics of Ordoñez’s time at the facility because records of incarcerated people are exempt under FOIA, but notes that the jail recently passed an audit.
After nearly a month, Ordoñez was transferred to the ICE detention center in Farmville. Ordoñez says the ICE facility was an improvement for the most part. He and other inmates played volleyball and soccer, and the food was better. The main problem was a guard who treated inmates poorly. According to Ordoñez, after a group of inmates got together and made a petition denouncing the guard’s behavior, they were chastised and transferred to a higher-security section of the facility.
Finally, on Oct. 3, a federal judge granted Ordoñez bond. He was able to post bail and leave ICE detention.
The Executive Office for Immigration Review, an office within the Department of Justice, handled Ordoñez’s immigration case. The EOIR has the power to decide whether individuals charged with violating immigration law are removable and whether they are entitled to relief or protection from deportation. Undocumented people who require legal representation in these courts have to provide their own lawyers, “at no expense to the government.”
According to a court document, Ordoñez was released because his immigration attorney “presented arguments that Mr. Ordoñez could be eligible for cancellation of removal.”
Non-legal permanent residents have to have lived continuously in the U.S. for 10 years to qualify for cancellation of removal. They also have to prove that they have a relative in the U.S. who is a citizen or a legal permanent resident, and that that relative will face serious hardship if the person in question is removed. A non-legal permanent resident also has to successfully argue that they are of “good moral character,” and can be disqualified if they have been “convicted of certain criminal offenses.”
There is a strict 4,000-person “cap” on the number of non-legal permanent residents who can benefit from cancellation of removal in a year, and even if an undocumented person is granted cancellation of removal, the Department of Homeland Security can appeal the decision with the Board of Immigration Appeals, the EOIR’s appellate-arm.
Ordoñez returned from detention to find his misdemeanor theft case in progress. Over the next few months, Ordoñez repeatedly requested a jury trial, citing “potential deportation consequences” he could face if convicted, “especially considering the current administration’s policy/promise to deport immigrants with criminal records.”
Ordoñez argued that a conviction for theft could jeopardize his “good moral character” and disqualify him for cancellation of removal. The requests for a jury trial were denied. However, the case was ultimately disposed, apparently due to the problem of the missing notepad.
“This case is more serious,” said Judge Carol Dalton before dismissing Ordoñez on Sept. 16. “There are additional issues that make me feel more concerned.” (City Paper reached out to Judge Dalton to ask whether she was referring to the contents of the arresting officer’s missing notebook or to Ordoñez’s immigration status, but did not receive a response.)
His hard journey does not end here, though. Ordoñez tells City Paper that at his last immigration hearing, he agreed to “voluntary departure,” an alternative to deportation that requires the undocumented person to leave the country on their own dime. Voluntary departure does not permanently restrict a person from returning to the United States. Still, according to Ordoñez, coming back legally would be a difficult, years-long process, if he ever manages it at all.
Although he has thus far managed to avoid outright deportation, the past year has been devastating for Ordoñez. For six months he has been seeing a therapist to help him process all that he experienced while detained.
“I was able to get out because I had friends who were able to get in touch with a lawyer and raise bail money and submit an immigration case on my behalf,” Ordoñez says. “Physically I’m OK, but emotionally, mentally, it’s hard for me to just go out in the street. For a while I didn’t want to see friends. I just went into hiding … My whole future has come tumbling down.”
The ICE detainer on Ordoñez’s name is one of 169 the U.S. Marshals received in 2018 in D.C. That’s up from 2014, when the Marshals received 11 ICE detainers. Meanwhile, D.C.’s Department of Corrections received 47 detainers in 2018, down from 202 in 2014. These data are from Syracuse University’s widely cited Transactional Records Access Clearinghouse, or TRAC, which keeps comprehensive immigration data.
Julie Mao, an attorney with Just Futures Law, urges a deeper reading of the numbers. “Articles in the press have focused on the U.S. Marshals angle, but overlooked how local policing practices are a major pipeline to deportation,” she tells City Paper. “A lot of air time is given to ICE’s large scale raids, but from my anecdotal experience the largest portion of people, if not most individuals, enter immigration detention because of some form of local police contact.”
Local activists say the DOC responds to every ICE detainer it receives and provides the federal agency with a 48 hour warning before they release an undocumented person. A document received by City Paper in a FOIA request lists over 40 “ICE pick-ups” from DOC facilities between 2016 and summer of 2019.
The Syracuse database lists a total of 1,480 detainers sent to local and federal agencies in D.C. since 2003. ICE is currently withholding information on how many of the detainers’ targets were actually picked up by the agency.