Luis Martinez got home Monday night. Not to Mexico, where he was born, but to New Paltz, New York, where he lived before being placed in federal detention for 153 days. He was jailed by ICE on January 16, which, according to a June 14 decision by Judge Nelson Stephen Roman of New York’s Southern District, held him unlawfully for the duration of his incarceration, denying him due process throughout.
Martinez, you may remember from the River’s previous reporting, is a restaurateur and the owner of La Charla in New Paltz. He’s also married and the father of three American-born children, and he owns a construction company that does work in New York City as well as throughout the region. He is also an undocumented immigrant, whose mother brought him to the US at age eight, in 1987, after the gang-related murder of her husband in Durango, Mexico. During his detention, there had been rallies on his behalf in New Paltz as well as at the Orange County Correctional Facility in Goshen, which in part may be why he was later moved to Essex County Correctional Facility in Newark, New Jersey.
Martinez was allegedly detained because of his two prior deportation orders, one from 1997 and another from 2002. While she herself was in the process of getting citizenship, Martinez’s mother would bring the young Martinez and his brothers back to Mexico illegally, and when he came back to the US in 1997 he was no longer a minor. Rather than give him a slap on the wrist, as was common at the time, the government deported him. Martinez, who saw the US as his home, returned, nonetheless. And, after another order of deportation, he returned again in the early 2000s, at which point he had a wife and child in New Paltz. While each of these jumps across the border were illegal, being charged for them did not, however, mean Martinez had waived all rights to due process.
What the government should have done when ICE arrested Martinez in New Paltz in January 2019, Judge Roman maintains, was serve him with paperwork that showed that both of the earlier orders that Martinez ignored by returning to the US had been reinstated. According to law, those orders have to be properly generated by a government attorney and signed by the officer making the arrest. From that moment forward, the government has 30 days to give the person who’s arrested the right to contest the detention. And, if Martinez had a fear of being returned to his home country of Mexico—which he did, because his father was murdered there—the judge and Martinez’s attorneys maintain, he should have had the right to make that claim as well. Legally, then, Martinez should also have been granted the right to contest the reinstatement of the deportation order in the court of appeals.
This form of due process exists because in 1996 Congress passed a law that allows that if someone is found to have reentered the country illegally, as Martinez had, then they have waived their chance at a second hearing before the court to argue their right to remain in the country. But despite that, in place of a hearing, they still retain the right to due process via court filings, because the Fifth Amendment to the Constitution guarantees due process to anyone in this country, regardless of citizenship.
Yet none of these rights, Judge Roman stresses in his decision, were afforded Martinez, who was never served the required paperwork upon his arrest; signed nothing the government could use as evidence that he was served; and subsequently was given little access to arguing his case, let alone to do so in the required 30-day window.
This is what the government did wrong in Martinez’s case—and possibly has also failed to do properly in many other cases nationwide. It is noteworthy that as this story is being reported, 30 former detainees, many of whom were minors accused of involvement with the gang MS-13 on Long Island, have been released because local and federal officials have done an inadequate job of evidence gathering and courtroom follow through.
Martinez’s trial was handled with similar caprice by the government. The judge argued that the Department of Homeland Security had performed its job so haphazardly that the court found it had little choice but to let Martinez go home to New Paltz, a community that had rallied to his defense.
In his decision, the judge cited this support, saying he “rejects the Government’s seemingly baseless argument that [Martinez and his family have] not shown cognizable harm from the lack of due process.”
In his argument, Judge Roman submitted the many letters and examples of extensive media coverage and social activism extended on Martinez’s behalf as evidence of the duress caused to the community by his arrest. He mentions letters not only from Martinez’s children, but also from local citizens, the New Paltz Chamber of Commerce, New Paltz Town Council, New Paltz Village Board, New Paltz Central School District, and multiple churches, saying the letters reflected “how many jobs, school events, and community events,” Martinez supported.
Showing harm mattered to Martinez’s case, yes, but the ruling apparently pivoted on the government’s potentially fraudulent paperwork.
In Martinez’s case the judge wrote that he was unlawfully detained by ICE. Then, under pressure first from Martinez’s attorneys, Cheryl David and Paul O’Dwyer, and then by the Southern District of New York court in May, ICE was finally forced to produce documentation that showed that Martinez was being held on his initial order of deportation from 1997.
But there were several problems with this. The government’s copy of that initial order of deportation from the 1990s, as well as a subsequent order from this past January, were allegedly signed by the same ICE Deportation Officer, Timothy Nevin—even though Nevin wasn’t actually the officer who made the arrest of Martinez earlier this year. That no serving papers actually existed at the time of Martinez’s arrest in January—which would be a violation of federal law—raised the suspicions of the judge. Raising further suspicion, Nevin’s signature also appears on the supposed copy of the 1997 order of deportation from 22 years ago, when Nevin didn’t work in his present job.
This threw the entire paper trail into suspicion, and the judge wrote, “There is virtually no proof that this document existed and was served when the Government purports that it did, and considerable evidence suggesting just the opposite.”
It’s probable, with hindsight, that ICE did itself no favors when it claimed that it didn’t matter if its paperwork was incorrect, first saying it did serve Martinez, and then saying that “even if a valid Notice of Intent/Decision to Reinstate Prior Order was not issued and served, [Martinez]…knew he was an alien against whom an order of removal had once been issued.”
If that were the case, Judge Roman said, it’s a stark violation of the Fifth Amendment to the Constitution, which states that you have to be notified of charges against you because you have a right to defend yourself. And, the judge makes clear, that holds for citizens and non-citizens alike. That’s in part because being served triggers the aforementioned 30-day period, in this case to challenge the reinstatement of deportation, according to Martinez’s attorney Paul O’Dwyer. According to the judge’s statement, being served “also triggers ICE’s obligation to give the person an opportunity to make a written statement contesting the reinstatement.” And although Martinez has a credible fear of being returned to Mexico, where his father was murdered, the judge found that the government denied Martinez the right to testify to that end. The judge said that the government’s “make-good” paperwork in May still doesn’t actually clear the violation of Martinez’s right to self-defense: “Quite the opposite. Because [Martinez] was already detained, he was unable to appear at his first bond hearing,” and was disallowed by ICE to make subsequent appearances as well.
Perhaps most significant is Judge Roman’s castigation of ICE’s methods.
He wrote that the “Government’s fiscal and administrative burdens were low,” and that the Government had little to lose in serving Martinez with advanced written notice. “Petitioner [Martinez] was (and would like to remain) an established member of his community, living with his family of US citizens and enjoying a vast support network. The Court cannot fathom what the burden the Government actually faced in depriving him of barebones process. Their conduct reeks of arbitrariness and carelessness.”
It’s unclear what’s next for Martinez, but he will have the right to argue against the orders of deportation. And in 2016 he filed for a U-Visa, a special form of legal protection for immigrants who help the police in unsolved crimes. Martinez provided substantial help to Newburgh police in their investigation of the gangland murder of his brother, a crime that remains unsolved.
As for other immigrants, Martinez’s attorney Paul O’Dwyer said that while Judge Roman’s ruling isn’t precedent-setting, because other courts are not bound by it, “It is persuasive. It can be useful in persuading other courts facing similar or analogous facts.” Judge Roman repeatedly cited a 2018 case, Lopez v. Sessions, where the government failed to follow its own guidelines on due process. Collectively, decisions like Martinez’s and the 2018 ruling appear to begin to stitch together a pathway forward for attorneys to argue due process violations. Martinez’s other attorney, Cheryl David, said, “I think it’s going to be very helpful for other attorneys. And I think in this era some judges are demonstrating real concern for preserving the law, for due process.” She said she was moved by the ending paragraph of Judge Roman’s decision, which argues very stridently that due process is what divides our nation from nations without a constitution.
It reads: “No relief short of [Martinez’s] release will remedy his wrong. The Constitution does not permit the United States Government to target people on the streets, arrest them without serving any papers, deny them meaningful due process, and detain them for arbitrary or indefinite periods of time while they engage in fishing expeditions to justify the arrests. That would turn the Constitution on its head and is precisely why the Fifth Amendment exists. No one is to be deprived of life, liberty or property without due process, lest the innocent suffer.”