Originally Published in The Washington Post.
By Meagan Flynn
January 9, 2019
An ICE officer watches people protest deportations in front of the U.S. Citizenship and Immigration Services building in Fairfax, Va., on Dec. 16. (Marlon Correa/The Washington Post) (Marlon Correa )
The first time Roxana Orellana Santos landed in immigration detention, in 2008, a federal court ruled that she never should have been there in the first place.
It all unfolded on Oct. 7, 2008, when she was sitting on a curb outside the restaurant where she worked as a dishwasher in Frederick County, Md., eating a sandwich before her shift started. The mother of four ended up arrested and jailed for 45 days after two county sheriff’s deputies approached her, asked for identification and found she had an outstanding deportation order. The sheriff’s office then handed her over to immigration authorities, actions that the U.S. Court of Appeals for the 4th Circuit later found amounted to an unconstitutional seizure.
But on Tuesday, just as Santos was moving toward a final settlement in her lawsuit against Frederick County, her attorneys said she was again detained by U.S. Immigration and Customs Enforcement — despite an order from a federal judge urging that she remain in the country while she fights her case.
Her detention happened just days before a scheduled court appearance during which she intended to seek monetary damages for her illegal arrest.
“The timing is clearly suspect,” attorney Jose Perez of the civil rights group LatinoJustice told The Washington Post. “Given the sheriff and the county were found liable for violating her rights, now all of a sudden we get to this point in the case and she’s arrested and taken into custody? She’s not a flight risk. She’s not a threat. Clearly this was done to punish her and deter others.”
Dozens of her supporters gathered outside the ICE offices in Baltimore on Tuesday demanding her release, holding blown-up photographs of her and her young twin daughters and signs that said, “We are all Roxana." Earlier Tuesday, Santos was detained during a routine check-in with ICE, which she has been attending periodically while she seeks legal status, her attorneys said.
Last February, a federal judge overseeing Santos’s civil rights case wrote that the “continued presence of Santos in this country is critical to the proper resolution of this case." In the February 2018 filing, U.S. District Judge Catherine C. Blake also wrote: “The court certifies that Santos has been helpful, is being helpful, and likely will be helpful in the investigation and prosecution of her claim that she was deprived of her constitutional rights under color of the law, resulting in substantial physical or mental abuse. The court strongly urges that Santos be allowed to remain in the United States to complete the presentation and effective litigation of these claims.”
Because of the government shutdown, ICE spokesmen were not immediately available to answer questions about whether the agency would release Santos in light of the judge’s order or because of her Jan. 14 court date, where she is expected to present her demands for monetary damages to Frederick County during a settlement conference. The grounds for ICE’s decision to revoke her supervision order remain unclear.
Santos’s lawsuit had raised crucial questions about the power local police have to assist ICE with immigration arrests. Frederick County had entered into a contract with ICE in 2008 that allowed the sheriff’s office to train some deputies to flag undocumented immigrants and, upon the agency’s request, hold them in detention until ICE could pick them up. The program is known as 287(g).
But the problem in Santos’s case was twofold: Neither of the deputies who approached Santos were trained under the ICE program, according to the 4th Circuit ruling — and even if they had been, they arrested Santos without any instruction or request from ICE.
Federal courts have consistently held that this is illegal. The problem for street cops is that immigration violations are civil in nature, and local police lack authority to enforce civil laws. They need probable cause that a crime has been committed to arrest someone, which the 4th Circuit found they didn’t have in Santos’s case. The court ruled that her arrest violated her Fourth Amendment protections against illegal searches and seizures.
“We believe she was racially profiled by the deputies for what we call ‘eating while brown,’" Perez said.
According to the 4th Circuit ruling, two Frederick County deputies approached her as she was eating her sandwich and asked her if she spoke English. She replied, “No." They asked, in English, whether she worked at the restaurant and whether she had identification. At first she said she didn’t have an ID, but then gave them her Salvadoran national ID, leading the deputies to discover the outstanding ICE warrant.
Was there a problem? Santos asked the deputies minutes later.
“No, no, no,” the deputy replied, motioning for her to remain seated. Everything from that point forward became an illegal seizure, the 4th Circuit said.
Realizing it was time to go to work — and believing that there was no problem — Santos stood up to go into her restaurant. Then, the deputies grabbed her by the shoulders and arrested her. Forty-five minutes later, ICE requested she be held, according to the ruling.
Perez said Santos has three young children who are U.S. citizens and one 18-year-old son who is a legal permanent resident. He said she fled El Salvador as a victim of domestic violence but was apprehended at the border in 2006. Santos did not understand a notice to appear at an ICE facility that was written in English and so did not go, Perez said. A court later ordered her removed from the country because she never appeared.
Perez said immigration attorneys for Santos are seeking to reopen her case to thwart deportation while she seeks a visa. The immigration rights group CASA is also assisting in the case.
No removal date has been set yet, Perez said, though attorneys suspect ICE intends to deport her despite her pending civil rights settlement. Perez said attorneys intend to file a writ of habeas corpus in an effort to free Santos.