Jose Ivan Nuñez and his husband, Paul Frames, walked into the U.S. Citizenship and Immigration Services (USCIS) office in Philadelphia on Jan. 31 expecting the visit to be a routine stop in obtaining Nuñez’s I-130 form, a first step toward the green card process.
Their excitement about starting a new chapter of their lives together, however, soon turned to shock when Immigration and Customs Enforcement (ICE) officials unexpectedly entered the room and took Nuñez into custody.
“The day of the hearing, I had no suspicions at all," Frames told NBC News. "I was very confident that the hearing would be fine, and we would be out in less than a half hour. After the fact, looking back, we were sitting ducks."
Nikkie Lopez, the director of GALAEI, a Philadelphia-based Latino LGBTQ social justice organization, told NBC News she was stunned by the situation.
“Everything was going great. They were told it would only take a couple of minutes,” she said. “But at one point, the interviewer paused in the middle of the interview, and, after a few minutes, ICE officials entered the office and arrested him.”
The couple, who married in April 2016 after dating for two years, remain in fear, according to Audrey Allen, one of the lawyers working on the case. Allen also said Nuñez’s sexual identity could put him in danger if he is forcefully sent back to Mexico, where he was born and maintains citizenship.
For that reason, Nuñez has been given a “Reasonable Fear Interview” by a USCIS asylum officer. The process is used to determine whether an individual is “more likely than not” to be persecuted or tortured if they return to the country they left behind. The outcome of Nuñez's interview is currently unclear.
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"By detaining Ivan and potentially deporting him, Ivan’s wellbeing and safety will be jeopardized. Ivan fled his hometown in Mexico due to fear of being harmed," the petition states. "Ivan’s sister, who is also gay, is currently in hiding due to the same fears and he has close friends who have been assaulted for being gay."
EXPEDITED ORDER OF REMOVAL
Nuñez has called the U.S. home since 2001, when he entered without inspection. In 2010, he traveled back to Mexico after finding out his mother had fallen ill. When he returned to the U.S. in August, he received an expedited order of removal at the border and was sent back to Mexico. A few months later, he re-entered the U.S. without inspection. Because of this, ICE has reinstated his prior order of expedited removal.
“When an individual has been ordered removed and is encountered by ICE, ICE reactivates the prior order,” Allen explained. “As such, he does not have the right to a removal hearing before the [Executive Office for Immigration Review]."
“The only relief he is eligible for is Withholding of Removal, which is similar to an asylum claim,” she added.
The reasons for Nuñez’s sudden apprehension remain unclear. The I-130 form was approved by the USCIS, according to Allen, and the arrest occurred in the middle of the interview. She said the filing of an I-130 form is typically settled based on the submitted documentation without the need for an interview. Allen, who has practiced immigration law for nearly 15 years, said Nuñez's case was the first she has worked on where an interview was required — and the first where she had a client arrested during an interview with USCIS.
"THE NEXT STEP"
Frames said he speaks to Nuñez on the phone several times a week and is able to visit him twice a week for half-hour visits.
"Every day and every hour I think of Ivan," Frames said. "I have anxiety, pain, anger and fear. I’m always thinking of the next step to release him.”
In the short term, Frames his hoping Nuñez is soon released on bond. The goal, however, is to put this detainment behind them and return to the green card path they thought they had been on.
THE GHOST OF DOMA
While Nuñez and Frames wed after the Defense of Marriage Act (DOMA) was struck down in 2015, Aaron C. Morris, executive director of Immigration Equality, a nonprofit that advocates and represents LGBTQ people in the immigration system, told NBC News it is not uncommon for same-sex binational couples to be caught in the immigration system. DOMA, he explained, barred the federal government from recognizing the marriages of gay couples, and many U.S. citizens were denied the opportunity to sponsor their partners for green cards.
“Without that family recognition, many spouses were ordered deported,” he said. “Under the Obama administration, the government agreed to reopen those cases to right the wrong that DOMA caused.” But Morris added that the Trump administration “is taking a much harsher and more inequitable stance,” and is “targeting anyone with a removal order, regardless of how wrong it was for the order to be issued in the first place.”