Why Is ICE Still Detaining Abigail Hernandez?


When Joe Biden was elected President, Abigail Hernandez expressed hope that Immigration and Customs Enforcement (ICE) would release her from endless detention in upstate New York and drop efforts to deport her as an undocumented immigrant.

In a post-election letter to one of her supporters, she cheered on “Joe” with a “Yeah,” saying she believed he would “fix the immigration.” 

As of mid-February, there were still 19,948 immigrants, Hernandez included, in ICE detention in the United States.

But that has not happened. This month marks the fourth year that Hernandez, who is twenty-five, has spent in detention because ICE won’t let her out of its clutches. A year ago, the agency  deepened Hernandez’s sense of isolation by transferring her to upstate New York’s Rensselaer County Jail—about 230 miles from her friends and family in Rochester.

Hernandez has coped with the loneliness of detention by assuring her supporters in letters and often daily telephone calls that she is “OK” and “fine.” But some are sensing that Hernandez’s optimism is giving way to despair.

“I keep telling her, ‘Abigail, don’t let the system break you,’ ” says Rosalind Walker, who is among a core group of about ten Rochester area supporters, collectively known as “Abi’s Squad.” Some are educators, some are activists, and others, such as Walker, are simply convinced that the treatment of Hernandez is wrong.

To be sure, Hernandez made a big mistake. On February 15, 2018, the day after the fatal school shooting in Parkland, Florida, she posted a threat—“I’m coming tomorrow morning” and “I’m going to shoot all of ya bitches”—on the Facebook page of the Rochester, New York, high school she once attended.

Her plight, however, requires looking beyond the fear-mongering of the GOP-Fox News propaganda machine. She needs to be understood as a person with intellectual disabilities who never intended to carry out the threat and is a danger to no one.

Almost everybody involved in Hernandez’s criminal case—the prosecution, the county court, and head of the school where she posted the threat—realized that Hernandez deserved leniency, not the original terrorism charges against her.

Her criminal case was resolved in June 2018, when Hernandez pleaded guilty to a misdemeanor in county court and was sentenced to three years of probation. But Hernandez never made it home. ICE agents scooped her up as she was about to leave a county jail on the outskirts of Rochester. For most of the next three years, she was confined at the Buffalo Federal Detention Facility in the town of Batavia, about thirty-five miles from Rochester.

Stripped of her Deferred Action for Childhood Arrivals (DACA) status by the Department of Homeland Security, Hernandez was targeted for deportation. ICE has not only persisted in pursuing its case against Hernandez despite ample evidence she’d be vulnerable in Mexico, but has also repeatedly resisted efforts to release her.

ICE’s Buffalo field office has not responded to requests to comment about Hernandez and related issues.

In detention, Hernandez has steered clear of COVID-19 outbreaks and avoided disciplinary actions, while Abi’s Squad has provided her with a lifeline of support. They rallied to help stop ICE’s 2019 effort to deport Hernandez, after she was awakened in the early morning hours and put on a flight headed for the Mexico border.

As of mid-February, there were still 19,948 immigrants, Hernandez included, in ICE detention in the United States.

“On the basis of no new evidence whatsoever, the government just continues to maintain the position that she is a present danger to the community based on the threat from four years ago,” says her immigration lawyer, Michael Marszalkowski. “There is no doubt in my mind that this extended detention—with no end—is draining on her.”

The immigration law provides that an asylum seeker should be granted safe haven if falling into a category—a “particular social group”—that could face persecution. Marszalkowksi argued that the group would be individuals with intellectual disabilities who lack family protection in Mexico. Hernandez would be dependent on an eighty-five-year-old grandmother, an aunt with four children, and an uncle.

Setting aside Hernandez’s deportation order, the Second Circuit Court of Appeals ruled last June that the Board of Immigration Appeals (BIA) “erred in its determination” that Hernandez, with her intellectual disability, would have the support she needs if returned to Mexico—a homeland she left as a young child. And the appellate court faulted the BIA for not recognizing Hernandez’s real fear of persecution if deported.

Mexico is such a distant memory to Hernandez that when she was interviewed by The Progressive after ICE’s failed deportation attempt in 2019, she said: “I don’t know anybody in Mexico. I’ve never been there.”

The appellate court remanded her case to the BIA, which—like immigration courts—is a part of the U.S. Justice Department. And while Marszalkowski expects the BIA to have an immigration judge reconsider Hernandez’s case, he and her supporters remain baffled as to why ICE keeps her detained.

“I’m not sure what kind of point they are trying to make,” says Walker.

Homeland Security Secretary Alejandro Mayorkas has, after all, provided a new lens to look at the Hernandez case. On September 30, he announced immigration enforcement guidelines that promise “the totality of the facts and circumstances” of a case be taken into account.

The appellate ruling clearly shows that relevant facts were discounted. And it should have been evident all along that Hernandez needs help, not detention.

Prior to Hernandez’s arrest four years ago, she had no run-ins with law enforcement. When she made her threatening post, she had already been transferred to a vocational program at another Rochester school and was upset that former friends were making fun of her.

U.S. District Judge Michael Telesca, in his 2019 order for a new bond hearing for Hernandez, noted that she told her probation officer that she had “no intention of following through on the threat” and, at the time, did not understand the consequences of her actions.

A year ago, Hernandez was transferred from the ICE detention center in Batavia to the Rensselaer County Jail. The Batavia center, which has a capacity of 650, had 279 detainees as of early February. It has also been the site of periodic COVID-19 outbreaks, with a total of 215 cases since the pandemic began as of mid-February.

Rather than release Hernandez, ICE transferred her to this county jail, with one other detainee, while most of the other detainees at Batavia were released, according to Jennifer Connor, executive director of the Buffalo-based Justice for Migrant Families.

The Rensselaer jail has been the subject of a recent complaint by immigrant rights groups that tells of women at this facility experiencing “inadequate medical care” and being “forced to live in filthy and unsanitary conditions.”

The September 9 complaint, which does not mention Hernandez, was triggered by a twenty-nine-year-old detainee suffering a badly broken ankle almost three weeks earlier, when being transferred to the Rensselaer jail from an upstate New York prison. According to the complaint, the woman—identified as “Ms. Q”—was shackled at her wrists, hips and ankles and made to stand over a grate covering a drain outside the ICE station in Albany. An ICE officer tugged on her shackles, causing her to fall on her face.

At the Rensselaer jail, says the complaint, Ms. Q only received ibuprofen and did not see a specialist. Sophia Genovese, an immigration lawyer with Catholic Charities of New York who drafted the complaint, says that Ms. Q didn’t get an X-ray followed by an MRI until November, and an ICE officer denied Genovese’s requests that she be released. It took a plea to ICE headquarters to accomplish that.

The complaint goes on to say: “Medical neglect is an ongoing and systemic problem at the Rensselaer County Jail, as confirmed by multiple women who have previously been detained there.”

ICE’s use of Rensselaer and at least three other county jails in New York for detention has mobilized immigrant rights activists to push for legislation that would stop ICE from using New York jails. Companion bills—the New York Dignity Not Detention Act—filed in the New York Legislature would do just that. New Jersey recently enacted similar legislation, joining Illinois, Maryland, Oregon, Washington, and California, although the California law is more limited in scope and has been blocked by a court challenge.

“It’s clear that we cannot pass any meaningful bills at the federal level, so it’s up to the states now to implement policies and laws to prevent immigration detention,” says Genovese.

The Biden Administration remains wedded to a Trumpian mold at the Southern border, where more than one million migrants have been apprehended and expelled without even a semblance of a hearing during the past year.

Detention is still very much a part of Biden’s playbook. The 19,948 immigrants that ICE had detained as of mid-February was about 6,000 more than at the end of last March.

At the time of Hernandez’s arrest, ICE’s Buffalo field office, which covers upstate New York, was headed by Thomas Feeley, who took pride in saying, “Everyone is fair game.”

Feeley resigned from ICE last summer, and has continued to carry on his crusade against immigrants as a guest on Fox News. But the Buffalo ICE office remains resistant to change.

A recurring issue is how ICE releases detainees from the Batavia facility by dropping them off at a nearby gas station, sometimes in the cold of winter without even a coat, says Connor, executive director of Justice for Migrant Families.

Greyhound and Trailways buses stop at this site, but Justice for Migrant Families ends up providing immediate housing for some of these detainees because of difficulties in getting transportation for them. 

The immigrants released, Connor says, have been on the increase since the summer, with many coming from the Southern border. They spend time at the ICE Batavia facility before heading to their destinations.

During a December 9 protest at the gas station, activists made pleas to treat immigrants humanely.

More fundamentally, Connor questions the need for their detention at Batavia. Instead, they should be placed directly with their sponsors, where they will stay during their asylum proceedings. 

She asks, “Why are these people here in the first place?”


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