UPDATE: América was freed from ICE detention on Monday evening, Oct. 26. Her attorney, Heidi Cerneka, said she can live in the United States and cannot be deported to Guatemala unless a determination is made someday that conditions in her come country have changed such that she no longer faces persecution.

On Oct. 5, an indigenous woman from Guatemala named América won her case before an immigration judge, a rare feat. 

The government determined it would not appeal, so this was a final decision. Yet nearly three weeks later, 24-year-old América still has not been released from the El Paso Immigration and Customs Enforcement detention facility where COVID-19 rages. 

“I came to this country to look for protection, and instead I’ve been kept incarcerated. Even though I won, I don’t feel good. I need to be with my family, and I don’t understand why I’m still incarcerated,” said América, who has already gotten sick with COVID-19 since she’s been held at the El Paso Service Processing Center, and is worried she might get it again. 

El Paso Matters does not disclose the last names of asylum-seekers to avoid the possibility of retribution if they ever return to their home country.

ICE spokesman Timothy Oberle said “ICE makes arrest and custody determinations on a case by case basis in full accordance with federal law” and said holding someone “subject to a final order of removal is fully consistent with federal law.”

América was granted what is called “withholding of removal,” a judicial ruling that declared she cannot be returned to her native Guatemala because she proved that she would likely face persecution. Withholding of removal requires a higher standard of proof than asylum but offers fewer benefits. A person with an order of withholding of removal cannot become a legal permanent resident or U.S. citizen, for example.

Under the law, ICE can seek a third country that might accept América, a move rarely agreed to by other nations. “Unfortunately, the U.S. can by law remove her to some other country, … and the next step ICE took was to contact three countries and say, ‘Can she be removed to your country?’ And they have told us for over two weeks that once they have a response from those three countries they will most likely let her go,” said her attorney, Heidi Cerneka.

Cerneka, an attorney from Las Americas Immigrant Advocacy Center representing América, said that her ongoing detention is part of a bureaucratic hitch in the system that can stall cases like this. 

This practice of asking other countries to take asylum-seekers when it is determined that they cannot go back to their home country is fairly common, said Cerneka, although the countries almost never say yes. Most of the time these are countries where the immigrant has no personal connection or contacts. América does have a sister in the United States, Esmerelda, who is ready to receive her. Esmerelda also sought asylum in the United States.

“(América) has lived through many awful things, she has not done anything wrong and she has suffered so much. They should consider that with all that she has been through, my sister deserves to be free,” said Esmerelda, who expressed concern and confusion about her sister’s ongoing detention. 

Cerneka said ICE also gave a second reason for the delay in releasing América from detention: lack of sufficient staff to process her release.

“We’ve also been told they’re short-staffed. But that’s not América’s problem, or it shouldn’t be América’s problem,” she said.

América said she knows of at least one woman in her barracks who has gotten reinfected with COVID-19 for a second time since being held in ICE detention. As of Oct. 21, ICE reports 29 active cases of COVID-19 among detainees, part of an ongoing outbreak at the immigrant detention facility where 251 detainees have gotten sick with the virus so far, and many have reported significant medical neglect.

Oberle said no ICE detainees in El Paso have been re-infected with COVID-19 after previously testing positive.

Other impediments to release from ICE custody

Situations like América’s are not the only way that asylum seekers can be indefinitely held after they gain the opportunity for release. 

Nina Ebner is a volunteer with Fronterixa Fianza Fund, a nonprofit that pays cash bonds for immigrants in the El Paso area. She said that even in the exceptional cases when an immigrant is granted a bond for release, ICE often will not let FFF pay the bond for what are sometimes vague reasons, including “systems issues.” 

ICE has not responded to a request for comment for this story, including a question about what constitutes “systems issues.” 

“ICE constantly throws us different hoops to be able to pay bonds for people beyond the normal hardships that people face in paying high bonds,” said Ebner, who explained that this problem has been exacerbated during COVID-19. 

“Even if we warn them ahead of time that we’re coming, we’re paying the bond for a specific person, we’re told last minute that day that the person has not been medically cleared.” Ebner explained, “so they’re being exposed to COVID-19 and then they’re being punished even more in terms of the fact that their release is being prevented.” 

One person that Ebner went to pay a bond for this week has been quarantined four times for COVID-19, and described a practice of mass-quarantining detainees but not testing them to find out whether they actually have COVID-19. Ebner was denied in her attempt to pay the bond for this client’s release because she is in medical quarantine, and said that this practice amounts to “arbitrary cruelty.” 

“We’re demanding that she be released. If she needs to quarantine again she can do so outside detention, and we’ve asked for clarity around why she was quarantined if she herself hasn’t been tested and has already had COVID-19,” Ebner said.

Pandemic risks

Cerneka said the ethical implications of delaying release of immigrants in ICE detention are even greater during COVID-19. 

“If you could have one less person in the detention center, that’s one less person who might get infected, and one less person who might infect other people, why wouldn’t you?” 

América has been a victim of violence in all forms in her home country, said Cerneka, who expressed concern about the continued trauma América is experiencing since her arrival to the United States. 

“I don’t understand why they still have me in detention, because I’m supposed to be out. I’m afraid that they won’t ever release me. And I’m also afraid because of everything that is happening in here with COVID-19,” América said. 

When asked what she would say to ICE officials if she could address them directly, Esmerelda said, “(My sister) is not a bad person, she is simply running away (from bad things). (I ask) that they set her free, please I ask with my heart in my hands.”