ICE picks up Durham man days before hearing on legality of 48-hour hold

Jose Hernandez
Jose Hernandez Contributed by family

The Durham County sheriff turned a man over to Immigration and Custom Enforcement officers on Saturday despite a Durham Superior Court judge’s request that law enforcement bring the 35-year-old Honduran to his courtroom on Tuesday.

Judge Orlando Hudson had scheduled a hearing for Tuesday after an attorney for Jose Hernandez, a Durham-based window installer, filed a petition accusing Sheriff Mike Andrews of unconstitutionally detaining her client.

Hudson said Saturday he did not issue a formal order demanding Hernandez’s presence on Tuesday. But the judge said Curtis Massey, an attorney for the sheriff, had assured him that Durham deputies would get Hernandez there.

Now Hernandez’s family and attorney are worried about what will happen to the 35-year-old father of three who fled Honduras as a teenager in fear for his life.

His arrest and detention raise numerous questions. They include ambiguities about the sheriff department’s relationship with ICE and the constitutionality of holding people in county jails for 48 hours after they otherwise would have been released to give ICE officers time to take custody of them.

It comes at a time when there are reports across the country of ICE agents appearing at courthouses, front doors and in some cases waiting outside churches to detain immigrants in this country illegally.

“This is outrageous,” said Shamiso Maswoswe, a Maryland-based attorney representing Hernandez. “It’s a gross miscarriage of justice.”

Hernandez was arrested April 20 after he went to the bank to deal with everyday business.

While at the ATM outside the bank, he noticed a man in a car nearby who looked like a detective.

That same man came inside the bank and lingered in the background while Hernandez took care of several transactions.

As Hernandez was leaving, the man came up to him and asked if he could see his ID.

After they stepped outside, two uniformed officers arrived and further questioned Hernandez as he went to his car to get his passport.

During the encounter, officers checked to see whether there were any warrants on file against Hernandez, who is known also as Jorge Andres Ledee Cintron.

Two DWI charges from 2013 showed up, along with a charge of failing to appear in court on the DWI charges.

Hernandez was booked into the Durham County jail.

"We contend police unlawfully seized him," Maswoswe said Saturday. "They had no reason to stop him in the bank."

When he went before a District Court judge, bail was set at $25,000, a sum that Hernandez could not pay to ensure his release while he awaited trial.

On Thursday, he went before a judge to respond to the DWI charges. One was dismissed for lack of evidence, and instead of fighting the second one, Hernandez pleaded guilty and was sentenced to probation.

But Hernandez could not walk out of the courtroom because ICE officers had asked the sheriff’s department, which oversees the jail, to hold him for 48 more hours to give them time to take custody and pursue deportation.

ICE orders or requests?

There has been much litigation in recent years about whether such holds are lawful.

“Nothing in federal law compels local law enforcement authorities to hold prisoners whom ICE suspects are removable,” Maswoswe said in her petition seeking the release of Hernandez. “Immigration detainers are requests, not commands.”

The detainers, the attorney pointed out, are not orders from a federal judge; they are requests from immigration officers who suspect a person is in this country illegally.

Further, Maswoswe contends, ICE administrative warrants “are directed to federal officers, not to county sheriffs, and federal law specifies that only certain federal officers are authorized to execute these administrative warrants.”

“Sheriff Andrews thus has no obligation to honor ICE’s request to hold prisoners who would otherwise be released,” Maswoswe said. “He has made a choice — a choice that North Carolina law does not authorize.”

Holding such prisoners, court cases have found, “is the equivalent of a new arrest that must comply with the statutory and constitutional requirements for depriving persons of liberty,” the petition for release states.

Last year arrests of undocumented but "non-criminal aliens” more than doubled from the previous year. A recent study shows an overall decline in the arrests and deportation of “non-criminal aliens," but are slightly up under President Trump.

Immigration debate, sheriff campaigns

Andrews, who lost the Democratic primary race earlier this month to Clarence Birkhead, a former Hillsborough and Duke University police chief, has drawn criticism for his cooperation with ICE detainer requests.

"If the bells and whistles go off and we get a notice of detainer from the Department of Homeland Security on a person who has been incarcerated, I'm going to recognize it," Andrews told the group Durham Businesses Against Crime in April. "My job is for the safety and security of the community."

Not all immigrants deemed to be in the country illegally are subject to detainers, Andrews explained, only those whose fingerprints are uploaded into a national crime database.

Birkhead, who won 69 percent of the Durham vote in the primary, has said he does not plan to honor requests to hold someone for two days after they otherwise would be released.

With no Republicans seeking the office, Birkhead is likely to be the next sheriff barring a successful write-in campaign.

During his campaign, Birkhead promised to make immigrant communities feel safer amid speeches from President Donald Trump and U.S. Attorney General Jeff Sessions about building walls, deporting immigrants and ending DACA — the Deferred Action for Childhood Arrivals program that Hernandez was not eligible for because he was 16 when he came to this country with his 11-year-old sister.

'I'm really scared for him'

That sister, Wendy Ford, was in tears on Saturday as she talked about the immigration officers who had taken her brother from the Durham County jail to somewhere in Wake County that morning.

The two came to this country together after circumstances in Honduras made it difficult for them to survive there.

Their father, according to Maswoswe, was abusive toward their mother, and both parents abandoned the children to their grandmother.

“Our grandmother passed,” Ford said, ”and we had to leave after that.”

Several of their cousins had been killed, she said.

So when Ford was 11, she and her brother left for the United States.

They started out in New York and came to Durham 11 years ago.

Hernandez has three children in this country — a 9-year-old, a 7-year-old and an 11-month old.

“The DWI was wrong, I know,” Ford said. “But I don’t think what they’re doing to him is right.”

Ford worries about what will happen to her brother if he is sent back to Honduras with few family members still there. “It’s really dangerous," she said. "I’m really scared for him.”

Hudson said Saturday that since Hernandez no longer is being detained in the Durham County jail, a hearing on Tuesday is no longer necessary.

Had the petition been presented at the same time Hernandez pleaded guilty to a different Durham judge, the questions about the 48-hour detention could have been addressed then, Hudson said.

Maswoswe questioned whether immigration officials should have been able to take Hernandez into their custody while he is on probation for state charges.

"He's still under the supervision of the state," Maswoswe said. "Once he's finished his probation, then ICE can come and get him."

Efforts to reach the sheriff on Saturday were not immediately successful.