Did ICE detain this Mexican journalist for criticizing U.S. immigration policy?

Late last night, Mexican journalist Emilio Gutiérrez-Soto and his son Oscar were released from an Immigration and Customs Enforcement (ICE) detention facility in El Paso, Texas. The two had been held in ICE detention for more than seven months, ever since being arrested and nearly deported by ICE agents on December 7, 2017.

The United States government has never offered a convincing reason for arresting Gutiérrez and Oscar in December, or for continuing to detain the two. Gutiérrez and his attorneys have argued that ICE targeted him for arrest in retaliation for his criticism of U.S. immigration policy, in violation of his First Amendment rights — and they have internal ICE documents to back up their case. Freedom of the Press Foundation has obtained the documents and is publishing them for the first time.

This is Gutiérrez’s harrowing story.

"Good morning,” the email began. “Attached is a list of 2,718 non-detained cases that may be candidates for arrest.”

It was early morning on February 1, 2017, just a few days after President Donald Trump’s inauguration, when an ICE supervisory detention and deportation officer sent that email to other agents in ICE’s El Paso field office. The email carried the subject line, “Non-Detained Target List.” A spreadsheet named “ND Target List.xls” was attached to the email.

An assistant field director in ICE’s El Paso office replied on February 13.

“When u get back, forward this list to the National Criminal Analysis and Targeting Center (NCATC) this is the only FOSC [Fugitive Operations Support Center]. They will run this list and provide info on address location etc …”

One of the many names on the targeting list was “GUTIERREZ SOTO, EMILIO.”

The reason that Gutiérrez was included on that list is a mystery.

Eduardo Beckett, one of Gutiérrez’s attorneys, told Freedom of the Press Foundation that there was no “legitimate law enforcement reason” for Gutiérrez to be on an ICE target list.

“It’s fugitive operations,” he said of the targeting list. “It’s people with felonies. Emilio doesn’t fit that mold.”

Gutiérrez is not a fugitive, and he has no criminal record. He is a Mexican journalist who legally applied for asylum in the United States in 2008, after being threatened by elements of the Mexican military.

So why did ICE target him for possible arrest? Beckett believes it was because Gutiérrez had criticized U.S. immigration policy.

“The only reason he was on that list was because he was a journalist who criticized ICE and the Mexican government,” he said.

Gutiérrez and his son Oscar entered the United States on June 16, 2008.

ICE’s official “Record of Deportable / Inadmissible Alien” for Gutiérrez states that he and Oscar appeared at the Antelope Wells Border Crossing station in New Mexico and formally requested asylum. Gutiérrez was taken to an official “port of entry” — one of the sites where immigrants may legally apply for asylum — and interviewed by a Customs and Border Protection officer. 

Gutiérrez told the CBP officer that Mexican military police officers had threatened his life after he reported on corruption in the Mexican military.

“The subject continued to state that on May 5, 2008 at approximately midnight several armed military police wearing masks and armed with high caliber weapons entered his house without his permission claiming to look for drugs and weapons,” the ICE record of Gutiérrez’s CBP interview states. “Subject Gutierrez further states that on Saturday June 14, 2008 he was warned by a female friend who claims she overheard military police officers making plans to harm the subject.”

Gutiérrez said that he feared that his life would be in danger if he had to return to Mexico, so ICE gave him a form to fill out and sent him to the El Paso processing center in Texas. His son Oscar, who was still a minor at the time, was detained in a separate facility. In El Paso, Gutiérrez was interviewed by an asylum officer, who assessed that he had a “credible fear” of returning to Mexico, and he was placed into asylum proceedings. He was detained in the El Paso detention center for seven months before being released on parole. He and Oscar, who had been released to family friends in the U.S., reunited and moved to Las Cruces, New Mexico.

Years passed without any ruling on their asylum claim, and Gutiérrez and Oscar settled into their new life in New Mexico. Gutiérrez bought a food truck. Though he had not worked as a journalist since fleeing Mexico, he was happy to speak to the press, and he did not hesitate to criticize the United States’ broken asylum system.

“We are talking about an immigration judge and an immigration attorney whose job it is … to keep from expanding the abundance of people looking for protection because of the violence in Mexico,” he told the AP in January 2011, after attending a hearing in his asylum case. “We don’t have a country that accepts us with its laws and regulations even after being aware that we fled Mexico because the Mexican state was persecuting us.”

“We are here because we want to save our lives and it just seems so unfair because a country of freedom and human rights … is ignoring us,” he told the AP a month later, after a ruling on his asylum case was delayed. “We were looking for refuge and they put us in prison.”

In July 2017, immigration judge Robert Hough finally ruled on his nine-year-old asylum claim. Hough ruled that Gutiérrez did not present sufficient evidence to prove that he was targeted for his journalistic work or that his life would be in danger if he returned to Mexico. (According to the Committee to Protect Journalists, more than 60 journalists have been killed in Mexico since June 2008, when Gutiérrez fled to the United States and applied for asylum.)

Hough seemed unconvinced that Gutiérrez was really a journalist, in part because Gutiérrez had trouble finding copies of his published newspaper clips to show the judge. Hough denied the asylum claim and ruled that Gutiérrez could be removed from the United States.

“He simply dismissed all the arguments, put them in the trash can and denied the asylum,” Gutiérrez said in an interview with the Knight Center for Journalism in the Americas. “I feel very sad and I am very disappointed in the immigration authorities, especially the policies that the United States exercises.”

On October 4, 2017, Gutiérrez accepted the National Press Club’s prestigious John Aubuchon award on behalf of all Mexican journalists. During his acceptance speech at the club’s black-tie awards gala in Washington, D.C., Gutiérrez accused the U.S. government of hypocrisy for advocating for human rights abroad while denying them at home. Gutiérrez was particularly critical of the United States’ asylum policies.

“Those who seek political asylum in countries like the U.S. encounter the decisions of immigration authorities that barter away international laws,” he said.

As Gutiérrez was publicizing the plight of Mexican journalists and asylum seekers, his legal team tried to get the immigration judge’s decision denying him asylum reversed. They appealed to the Board of Immigration Appeals (BIA), which has the power to review immigration court decisions. But on November 2, 2017, the BIA rejected the appeal because it had been filed late. On November 20, Gutiérrez’s attorney Eduardo Beckett asked the court to reopen the appeal.

If the BIA reopened the appeal, then Gutiérrez would be safe. He could not be removed from the country while the appeal was pending. But until the court granted his petition to reopen the appeal, Gutiérrez was at the mercy of ICE. He had to ask the agency to grant him a stay of deportation.

Under the Kafkaesque U.S. immigration law system, ICE officials have the power to issue stays of removal, which prevent the agency from deporting someone. If ICE refuses to issue a stay, then the BIA has an opportunity to step in and issue an emergency stay, which prevents ICE from deporting the person. Crucially, though, the BIA does not have the power to issue an emergency stay until after ICE has already refused to issue a stay and taken someone into custody.

Beckett expected that ICE would officially deny the stay on December 7, when Gutiérrez and his son were scheduled to appear at ICE’s El Paso field office for a routine check-in. He knew that once ICE denied the stay, he could call the BIA and request an emergency stay. Then the BIA would either deny the stay and allow ICE to deport Gutiérrez, or it would grant the stay and order ICE not to deport him.

For assistance in dealing with ICE, Gutiérrez’s legal team reached out to members of Congress. Senator Patrick Leahy of Vermont took a particular interest in the case, and his senate office got in touch with ICE’s congressional liaison to ask about the case.

On November 20, a Leahy aide emailed Gutiérrez’s legal team and said ICE’s congressional liaison had assured her that ICE would “likely make their decision after consulting with BIA.”

Beckett said that ICE told him something similar.

“I had assurances from ICE that they would not try to deport him,” he said. “They told me to bring Emilio and Oscar in and if the stay by ICE was not granted, then ICE would get a ruling from the BIA before taking any action.”

“That was a lie,” he added. “That to me shows the bad faith.”

When Beckett, Gutiérrez, and Oscar arrived at ICE’s El Paso field office on December 7, ICE agents arrested Gutiérrez and Oscar immediately after informing them that they had decided not to grant a stay.

Beckett called the BIA to petition for an emergency stay of removal, and the court told Beckett that it would call him back as soon as it had ruled on his petition. But ICE had no intention of waiting for the court’s ruling. Agents handcuffed Gutiérrez and Oscar, put the two of them in a car, and started driving toward the border.

As ICE raced to deliver Gutiérrez and Oscar to the border, Gutiérrez’s legal team sent an urgent email to Leahy’s office: “ICE did not wait for the BIA decision. He is being escorted to the bridge. Could you all make a call to please try and stop this? The court has not ruled.”

A Leahy aide wrote back that the senator’s office could not stop ICE: “I am so very sorry to hear this!! There is really nothing else that our office can do to intervene or prevent this.”

According to Beckett, Gutiérrez and Oscar were driven to a parking lot outside of a Border Patrol station, where Gutiérrez was told that Mexican immigration agents were on their way to pick them up and take them back to Mexico.

Before Gutiérrez could be handed over to the Mexican government, the BIA called Beckett back with good news — Gutiérrez and Oscar had been granted an emergency stay of deportation. Beckett immediately called ICE and told them to bring Gutiérrez and Oscar back. The agency refused. The BIA’s emergency order might have prevented ICE from deporting Gutiérrez and his son, but it did not prevent the agency from detaining them.

ICE agents took Gutiérrez and Oscar to an immigration detention facility. They would remain in ICE detention for nearly eight months, and Gutiérrez’s food truck would be stolen while he was still detained.

Gutiérrez’s asylum appeal slowly worked its way through the courts. On December 22, 2017, the BIA decided to reopen Gutiérrez’s appeal. On May 15, 2018, it granted his appeal and remanded his asylum case back to immigration judge Robert Hough, with instructions to consider new evidence and then issue a new decision.

By that time, Gutiérrez’s attorneys were pursuing a new legal strategy.

On March 5, 2018, Gutiérrez filed a petition for habeas corpus in the Western District of Texas federal district court. Habeas corpus — one of the oldest and most fundamental rights in the United States — is the right not to be detained arbitrarily.

Gutiérrez’s habeas corpus petition, which was prepared by Rutgers University’s Institute of International Human Rights law clinic, argued that his ongoing detention by ICE was unconstitutional. The habeas petition advanced a number of arguments for why ICE’s detention of Gutiérrez was unlawful, but the most interesting was the claim that it violated his First Amendment rights to free speech and freedom of the press. Gutiérrez argued that ICE had targeted him for detention because he had publicly criticized the agency in his capacity as a journalist.

As evidence, Gutiérrez’s attorneys noted that Gutiérrez had been arrested by ICE just weeks after publicly criticizing U.S. immigration authorities at the National Press Club awards dinner. They also cited the fact that an ICE official reportedly told National Press Club president Bill McCarren to “tone it down” when it came to advocating for Gutiérrez’s case. (ICE has denied saying this.)

Later, Gutiérrez's legal team found their key piece of evidence — the internal ICE emails from February 2017.

On April 30, 2018, National Press Club press freedom fellow Kathy Kiely received copies of the ICE emails in response to a Freedom of Information Act request. She passed them on to Gutiérrez’s legal team, who immediately recognized their significance.

“When Kathy did her FOIA, I told her, this is gold,” Beckett said. “This shows that there was secret emails, a target list, and this was done months before he lost his asylum claim.”

Federal district judge David Guaderrama agreed, citing the ICE emails in his order denying the government’s motion to dismiss the habeas corpus case.

“Respondents [ICE] contend that they detained Petitioners [Gutierrez-Soto and his son] based on a warrant issued after the removal order issued by the immigration judge became final in August 2017,” Guaderrama wrote in a July 10 decision. “However, the emails between ICE officials undermine Respondents’ argument. The emails show that ICE officials were already targeting Mr. Gutierrez-Soto in February 2017. … This is significant because it is before the immigration judge issued the removal order in July 2017, which became final in August 2017.”

Guaderrama concluded that there was sufficient evidence to suggest that “Respondents retaliated against [Petitioners] for asserting their free press rights … [and] Respondents’ reason for detaining Petitioners is a pretext.”

Guaderrama ordered the government to bring Gutiérrez and Oscar to an evidentiary hearing on August 1, 2018, so that he could hear Gutiérrez’s testimony and the government’s defense of his continued detention, and then rule on Gutiérrez’s habeas corpus petition. Guaderrama also denied the government’s motion to delay the hearing and ordered the government to provide Gutiérrez’s legal team with more information about the ICE email thread and the targeting list.

Rather than try to defend ICE’s detention of Gutiérrez and Oscar at a federal court hearing, the government opted to release the two of them.

Beckett credited the federal court with forcing the government’s hand.

“The release of Emilio and his son Oscar is a testament that our Federal Courts protect our Constitutional rights,” he said in a statement. “The Constitution is not just an abstract written document but the cornerstone of our liberty and democracy.”

Now that Gutiérrez is free, he plans to move to Michigan. On May 2, 2018, the University of Michigan awarded him a Knight-Wallace fellowship. The one-year fellowship covers full tuition and health benefits, and includes a $75,000 stipend. Perhaps most importantly, the fellowship will allow Gutiérrez to work alongside other journalists for the first time since he fled Mexico in 2008.

Gutiérrez’s asylum case — which is entirely separate from his habeas corpus case — remains unresolved. In May 2018, the BIA remanded the case back to Hough, the immigration judge who previously denied Gutiérrez’s asylum claim, with instructions to rule on it again after considering new evidence.

Once Gutiérrez moves to Michigan for the Knight-Wallace fellowship, it’s possible that his asylum case will be transferred from Hough, who is based in Texas, to an immigration judge in Michigan. Either way, Gutiérrez’s fate will once again be in the hands of an immigration judge.

If he is denied asylum for a second time, he can try to appeal (again) to the BIA. If the BIA refuses the appeal, ICE will finally be free to deport him and his son.

But if Gutiérrez is granted asylum, then his long ordeal will finally be over, and he will be able to live in the U.S. without fear of being detained or deported by ICE.